May 2011 - Parks & Recreation - 27

The John Day Dam is part of the Columbia River Flood Control System. On
June 11, 1997, the Columbia River was in
flood condition, and the John Day Dam
was being actively monitored for flood
control purposes. On that day, as a result of the decision of the United States
Army Corps of Engineers to actively
monitor the flow of water going through
the John Day Dam, the water level behind the John Day Dam was allowed to
rise. The flood pool for waters contained by the John Day Dam on June 11,
1997 reached five miles up the John Day
River from its confluence with the Columbia River. LaPage Park on the John
Day River, where Kelly Finn drowned,
was approximately 1/4 mile from the
confluence of the John Day River with
the Columbia River. The waters in the
swimming area at LaPage Park on June
11, 1997 had been allowed to rise during the day as a result of the decision of
the United States Army Corps of Engineers to limit the full flow of water
through the John Day Dam on that day.

other nature venue, where they experience the natural world (and green exercise) together.
theFamily
defendant
federal
government
nature
clubs,
and similarnoted
that
" the
John
Day
River
at LePage
approaches, provide a greater
sensePark
of
where
Kelly
Finn
drowned
was
in flood
safety for fearful parents. They can
be
stage,
and
was being actively
moncreated
in that
any itneighborhood,
whether
itored by the United States Army Corps
inner city, suburban, or rural. The clubs
of Engineers on that day. " Moreover, the
can be joined or created by any kind of
United States contended that " there is no

family. They increase motivation; it's
much more likely that a family will
show up at a park on Saturday morning
question
but that
theanother
United States
if they know
there's
familyArmy
Corps
of
Engineers
was
actively
manipwaiting for them. And, importantly,
ulating
the
depth
of
the
river
on
that
there's no need to wait for funding. day
in
an effort
to do
control
flooding. " As
a reFamilies
can
this themselves,
and
sult, the United States argued that plainthey can do it now.
tiff's request for " summary judgment
Similar approaches are catching on.
should be denied because the record

Plaintiff Charles Finn, the personal
representative of the estate of Kelly Finn,
filed a wrongful death action under the
Federal Torts Claims Act. In his complaint, Finn alleged, in part, that " Kelly
Martin Finn drowned in the designated
swimming area at LePage Park as a result of defendant's [United States Army
Corps of Engineers'] negligent operation
and maintenance of the swimming area. "
In response, the defendant United States claimed immunity under the
Flood Control Act of 1928. Plaintiff, however, contended that there was " no evidence that flood water contributed in any
way to the death of Kelly Finn. " On the
contrary, plaintiff claimed " Kelly Finn's
death came about because of the negligent operation of a recreational swimming beach " and " not the character of
the water or the performance of the defendant's flood control function. "
In this particular instance, the United States claimed immunity under the
Flood Control Act was applicable because " the character of the water at
LePage Park on the day that Kelly Finn
drowned was flood water. " In so doing,

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P A G E796 1

P A R K S

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& R E C R E A TwIwOwN. N RMPAA Y. O R2 G0 0 MA
9

2011

Parks & Recreation 25

May 2011 - Parks & Recreation

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