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DOTY v. UNITED STATES

February 2, 1982

BETTY E. DOTY, ETC., ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

These consolidated actions were brought by three widows, individually and as Special Administrators of the Estates of their respective husbands (Charles Doty, "Doty"; Terry Winters, "Winters"; and Thomas Schlatter, "Schlatter";*fn1 collectively "decedents") who lost their lives in a boating accident on the Mississippi River June 22, 1977. That accident occurred when Schlatter's boat, from which all three decedents were fishing, capsized in Gate 6*fn2 below Lock and Dam 13 near Fulton, Illinois.

Although this is only a summary, essentially the parties' contentions are these:

    (1) Plaintiffs assert that the United States,
  acting through its agency the Corps' Rock Island
  District, negligently failed to give decedents
  adequate warning of the hazardous conditions of
  the waters below Lock and Dam 13 (throughout these
  Findings and Conclusions the term "below" is used
  with the common meaning "downstream of"), failed
  to enforce the 100 foot restricted zone below

  the dam, and intentionally opened a gate on
  decedents.
    (2) Defendants' position is that the accident
  was caused solely by the decedents' acts in
  failing (a) to heed the "Restricted" sign located
  directly above where decedents tied their boat,
  (b) to avoid the open and obvious hazards of the
  seething, boiling and turbulent water in the
  vicinity of Gate 6 and (c) to wear life-jackets
  while fishing in an obviously dangerous area.

This action has been tried without a jury upon the facts as to defendants' claimed liability. After considering all the evidence and arguments of counsel, in accordance with Fed.R.Civ.P. 52(a) the Court finds the facts and states its conclusions of law as follows:

Findings of Fact ("Findings")

1. On June 22, 1977 decedents drowned while fishing from a boat owned by Schlatter, which they had tied to Pier 6*fn3 on the downstream side of Lock and Dam 13 on the Mississippi River near Fulton, Illinois. Schlatter's boat was a 16-foot Glastron T-161 Bass Boat powered by a 70 horsepower Johnson outboard motor. After the drowning it was found capsized below Gate 6.

2. Lock and Dam 13 was built by the Corps in 1936-38 for navigational and flood control purposes. It is one of 29 lock and dam facilities constructed on the Mississippi River to provide a 9-foot deep channel for navigation. It has been owned, operated, controlled and supervised by the Rock Island District of the Corps' North Central Division continuously to and since June 22, 1977.

3. Lock and Dam 13 extends from the Illinois riverbank (near Fulton) across the river to the Iowa riverbank (near Clinton). It comprises (east to west) one operating lock chamber on the Illinois side, an auxiliary lock area that has never been completely constructed (so that its gates are continuously closed) and thirteen movable steel gates that control the river's flow. Those enormous gates are separated by concrete supports ("piers"). They and the piers span 1066 feet across the Mississippi, and the gates rise high above the water's surface. They are of two types:

    (a) three larger "roller gates" (Gates 5, 6 and
  7) are located approximately at the center of the
  river, and
    (b) ten smaller "tainter gates" are located on
  either side of the roller gates — four
  (Gates 1 through 4) to the east and six (Gates 8
  through 13) to the west.

4. Both the tainter and roller gates are adjustable to varying heights, allowing varying amounts of water to flow through. Controls for each roller gate are separate and are located in pier houses on top of the dam. By adjusting the gate settings at the 29 dams on the Mississippi, the Corps maintains the 9-foot navigation channel. Each dam regulates the level of the water upstream of its gates (the "pool") but not the depth of the waters immediately downstream (the "tail water").

5. Piers on either side of each roller gate extend downstream from the dam. Ladder rungs are built into the downstream face of the piers (the "bullnose" or "piernose") for maintenance purposes. It is about 40 feet from the piernose to the roller gate.

6. Both the gates and the piers are built on a concrete foundation (the "sill"). Another integral part of the sill are baffle blocks, obstructions constructed to break the water's flow immediately below the dam. That dissipates the water energy, preventing erosion downstream.

7. Such dissipation of water energy is partly visible in the form of surface turbulence ("white water" or "seething boils") downstream from the dam. That turbulence varies in its intensity and visibility depending upon a number of conditions, including the gate settings, volume, flow rate and height of water ("head") in the upstream pool. On the downstream side of the dam a visible "breakline" runs more or less parallel to the dam on the water's surface. Its location varies from time to time depending on the same factors. Upstream of the breakline the current flows back toward the dam, while downstream of the breakline the current flows downstream. One can see logs and debris held up against the gates by the upstream current on the upstream side of the breakline. Anyone who attempted to fish near the breakline could observe the direction of the current as it carried his fishing line either upstream or downstream.

8. Dissipation of water energy by the baffle blocks is also partly subsurface and not visible to boaters on the surface of the water. Such subsurface turbulence is also directly related to the factors referred to in Finding 7.

9. Many people boat and fish in the Mississippi River, including the waters near Lock and Dam 13. Such people and other members of the public are advised by federal regulation, as well as by signs and lights posted on Lock and Dam 13 itself (see Finding 10), that boating is not permitted 600 feet immediately upstream from the dam and 100 feet immediately below the dam. Those waters have been designated as "restricted" by the Rock Island District, pursuant to its authority and discretion as provided in 33 C.F.R. § 207.300(s).

10. From 1968 through the time of decedents' accident and thereafter the 100-foot "restricted" area below Dam 13 was clearly marked with the following signs and lights:

  (a) There has been a sign 8 feet wide by 5 feet
    high posted below the dam on the "intermediate
    wall" (the wall on the west side of the lock,
    which separates the lock chamber abutting the
    Illinois shore from the river). Printed in black
    letters on the sign's yellow enamel background
    is the legend:

RESTRICTED. KEEP BELOW THIS POINT.

    That sign faces the river and is clearly legible
    from the waters immediately below the ...

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