Ramon Ramirez v. United States Department of Interior-Bureau of Reclamation

546 F.2d 645

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 2, 1977
• Docket: 76-2875
• Status: Published

Opinion

PER CURIAM:

This is an appeal from a judgment entered for defendant at the close of plaintiff’s evidence in a nonjury trial. The wrongful death action was brought by the parents of a six-year-old child who drowned in the Franklin Canal, owned and maintained by the United States Government.

Based on the allegations in this case, we have serious doubt as to whether the Government is immune from the allegations of negligence in this suit under the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C.A. § 2680(a), see Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), as held by the district court. We do not, however, have to resolve this issue. The additional findings and conclusions of the court that there was no actionable negligence on the part of defendants are not clearly erroneous and properly apply Texas law, which controls this case. Cf. Avina v. United States, 115 F.Supp. 579 (W.D.Tex.1953).

AFFIRMED.