Pamela Graves v. The United States of America

872 F.2d 133, 1989 A.M.C. 1452, 1989 U.S. App. LEXIS 4473, 1989 WL 31044
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 6, 1989
Docket88-5084
StatusPublished
Cited by37 cases

This text of 872 F.2d 133 (Pamela Graves v. The United States of America) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pamela Graves v. The United States of America, 872 F.2d 133, 1989 A.M.C. 1452, 1989 U.S. App. LEXIS 4473, 1989 WL 31044 (6th Cir. 1989).

Opinions

BOGGS, Circuit Judge.

Plaintiffs appeal the district court’s judgment denying recovery in a tort action [135]*135against the United States for injuries allegedly caused by inadequate warnings about a dam on the Kentucky River. We affirm.

I

Lock and Dam No. 11, on the Kentucky River, was constructed between 1904 and 1906 by the United States Army Corps of Engineers (the “Corps”). Since that time, it has been continuously controlled and supervised by the Corps. All responsibility for warning devices rested with the Corps.

Lock No. 11 is located just around the third of a series of sharp curves in the Kentucky River. The distance from the last curve to the crest of the dam is about 1600 feet. When approaching the dam, a boater is faced with the optical illusion that the river continues straight ahead, making the dam very difficult to perceive.

In 1961, the warning system at Lock No. 11 consisted of a sign painted on the upper end of the guide wall that stated “Danger, High Dam” that was in yellow and black lettering, a sign downstream at the lower guide wall that stated “Danger, High Dam, Stay Away,” and a sign posted on a tree 1000 feet up river of the dam stating “Danger, High Dam 1000 feet, Keep to the Right.”

In 1973, acting pursuant to orders from the head of the Ohio River Division of the Corps of Engineers to increase the warning at certain water areas, the Louisville District installed two warning buoys upstream from the dam at Lock No. 11. The buoys were 13 inches in diameter, rose 36 inches out of the water, and had “Danger Dam” painted on them. The buoys were also placed diagonally across the stream in order to steer boaters to the right of the dam towards the lock.

In July 1981, the Corps decided to close the locks on the Kentucky River due to their rising cost per use. This information was disseminated in the classified section of the Louisville and Lexington newspapers, as well as being mailed to all those who were on the mailing list of the Corps. This list included 1822 individuals and organizations who had requested that their names be put on the mailing list or who had purchased a navigational chart.

After the locks were closed, the warnings were revised as well. The Secretary of the Army delegated ultimate responsibility for formulating a new warning system to the Kentucky District. This responsibility was to be exercised by the District Engineer and his associates. Larry Dickson, chief of the Waterways Management Branch of the Louisville District, made inquiries of counsel regarding the legal responsibility for deactivating or maintaining certain of the warnings, considered the costs and feasibility of maintaining the warning buoys and the upstream sign, and forwarded his recommendations to the Chief Engineer. Pursuant to his recommendation, the buoys were removed because, without the locks, Dickson felt that it would be difficult to repair or fix the heavy chains that held them in place. In addition, the sign 1000 feet away from the dam on the tree was also removed for maintenance reasons. The only sign that was left was on the lock structure itself. This sign was subject to possible submersion if the water level rose too high.

On May 14, 1983, the water level on the river was running 5V2 feet above the level of the dam. As a result the word “Dam” and possibly part of the word “Danger” on the warning sign was submerged. On this day, Larry Graves, his wife Pamela, and their son Darren were on the river for a boat ride. Larry Graves was operating the boat. Darren Graves was in the left-hand seat behind the windshield, and Pamela Graves was reclining on a bench seat in the front of the boat. Pam and Darren had on life jackets, but only Darren’s was fastened. Larry Graves was not wearing a life jacket. For the majority of their ride, they stayed in the middle of the river. They only noticed one warning sign, one about underwater cable crossings.

Pamela Graves testified that no one saw any warnings, and that they realized the danger of the dam only approximately ten feet away from the dam drop-off, the point where it first becomes visible. Ms. Graves further testified that she could tell that her [136]*136husband also noticed the drop-off because of the look on his face before they went over the dam. Witnesses on the bank of the river testified that it appeared that Mr. Graves had put the engine into reverse to try to avoid the dam. The boat went over the river, and Darren’s and Pam’s life jackets were ripped off of them. However, they both managed to reach the shore with help from others on the bank. Larry Graves’s body was discovered ten days later at a site thirty miles from the accident.

Pamela Graves filed suit in federal district court under the Suits in Admiralty Act (“SIAA”), 46 U.S.C.App. §§ 741-752, on behalf of herself, her deceased husband, and her minor child. During trial, the government initially argued that the district court lacked subject matter jurisdiction because the “discretionary function exception” shielded the U.S. from this type of tort action based on admiralty claims. The court held that the United States was not immune from suit in the present case, but that it had provided sufficient warnings through notice, publications, and the remaining sign so that there was no breach of duty, and thus no negligence. The court went on to hold that, in any event, the Graveses’ behavior was the proximate cause of the accident.

II

Generally, when reviewing a district court’s determination of negligence in an admiralty action, this court is not to overturn that finding unless it is clearly erroneous. In re Paducah Towing Co., Inc., 692 F.2d 412, 421 (6th Cir.1982). A finding is “clearly erroneous” if the reviewing court is left with the definite and firm conviction that a mistake has been made after examining all of the evidence. Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

In the present case, the district court determined that there was no negligence on the part of the Corps because it had met its duty to warn of any hazards associated with the closing of the locks. Specifically, the district court concluded that the removal of the buoys was reasonable in light of the difficulty of repair, and that the warning sign on the dam, the notices published in the paper, and the navigational guidebooks of the Corps were adequate warning of the danger. The court also found that the Graveses were the proximate cause of the accident; specifically, that the boat was travelling too fast, there was a failure to keep a lookout, and a failure of Mr. Graves to wear a life vest.

These factual findings are not clearly erroneous because there was credible evidence on the record to support these findings. There was evidence that the boat may have been travelling above a safe speed because of Darren Graves’s testimony of how the boat was planing coupled with expert testimony concerning the speed required for planing; there was expert evidence that a life jacket might have prevented the death of Mr. Graves; there was evidence from Pamela Graves’s testimony that no one on the boat was keeping a lookout; and there was expert evidence that the buoys could not be repaired and maintained when the locks were closed.

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Bluebook (online)
872 F.2d 133, 1989 A.M.C. 1452, 1989 U.S. App. LEXIS 4473, 1989 WL 31044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pamela-graves-v-the-united-states-of-america-ca6-1989.