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LAW REVIEW continued from page 25

does not support a conclusion as a matter of law at this stage in the proceedings that flood water played no part in
the death of Kelly Finn. "
Applying the standard enunciated by
the Supreme Court in Central Green, i.e.
" consider the character of the waters that
cause the relevant damage and the purposes behind their release, " the federal district court examined the record to
determine whether the water in which
Kelly Finn drowned was flood water. " In
the opinion of the court, there were " no
facts in the record from which the court
can conclude as a matter of law that flood
water did not play any part in the drowning. " As a result, the federal district court
denied plaintiff's motion for summary
judgment that there was " no basis for the
defendant's defense of immunity under
the federal Flood Control Act. "

Irrigation Runoff Waters
In the much more recent case of Morton

v. United States (Dist. Ariz. 10/8/2010), the
federal district court found the character of the water causing the damage was
unrelated to flood control. In this case,
the husband and two sons of Mary Lou
Morton brought a wrongful death action
against the United States following her
drowning death in Roosevelt Lake. The
facts of the case were as follows:
On the night of April 28, 2008, Mary
Lou Morton, who lived on the west side
of Tonto Creek, had dinner with friends
who lived on the east side. Tonto Creek
runs through Tonto Basin and feeds
into Roosevelt Lake. After dinner, Mary
decided to return home and, at the
suggestion of her friend, decided to
take A-Cross Road, one of the three
crossings that run through Tonto
Creek. Mary had never traveled on ACross Road before so her friend gave
her directions. Later that night, however, Mary's vehicle was found in twenty
feet of water fifty to seventy-five yards

from the boat ramp at the Indian Point
Recreation Site, one of nine recreation
sites at Roosevelt Lake. Her body was
discovered about 200 yards from the
ramp.

Plaintiffs alleged that " the U.S. Forest
Service negligently failed to sign the route
to A-Cross Road, to close the boat ramp
gate, to adequately sign or light the boat
ramp, the boat ramp area, or the water's
edge. " In so doing, plaintiffs claimed that
negligently designing the road to lead directly into the lake was the reason " Mary
was led into Tonto Basin and drowned. "
In response, the United States contended
that it was immune under the Flood Control Act of 1928, 33 U.S.C. § 702c.
As cited by the federal district court, the
Flood Control Act of 1928, 33 U.S.C. § 702c
provides that " [n]o liability of any kind shall
attach to or rest upon the United States for
any damage from or by floods or flood waters at any place. " Accordingly, the court
noted that " [t]his provision bars recovery

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