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Kohl v. United States and Corps of Engineers of United States Army

decided: July 12, 1983.

MELBA J. KOHL, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF THOMAS H. SCHLATTER, DECEASED, BETTY E. DOTY, INDIVIDUALLY AND AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF CHARLES EDWARD DOTY, DECEASED, AND LINDA WINTERS, INDIVIDUALLY AND AS SPECIAL ADMINISTRATRIX FOR THE ESTATE OF TERRY LEE WINTERS, DECEASED, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES OF AMERICA AND CORPS OF ENGINEERS OF THE UNITED STATES ARMY, DEFENDANTS-APPELLEES



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 79 C 2581 and 79 C 2589 -- Milton I. Shadur, Judge.

Pell and Cudahy, Circuit Judges, and Jameson, Senior District Judge.*fn*

Author: Pell

PELL, Circuit Judge.

This lawsuit stems from the unfortunate drowning of three fishermen near Lock and Dam 13 (LD13) on the Mississippi River. Plaintiffs filed under the Suits in Admiralty Act, 46 U.S.C. ยง 741-52, claiming that the accident was the result of inadequate warnings posted in and around LD13 and misconduct by dam employees, who allegedly opened the dam gates in an attempt to wash decedents downstream. The trial court, sitting without a jury, found that the warnings posted on LD13 were adequate under the circumstances and held that there was insufficient evidence to support the allegation of employee misconduct. The court determined that decedents' own negligence in fishing near the dam was the sole cause of the accident. Plaintiffs now claim that the court's findings of fact are clearly erroneous.

I. Facts

LD13 spans 1066 feet across the Mississippi River, from Illinois on the east to Iowa on the west. On the eastern portion on LD13 there is an operating lock chamber and an inoperable auxiliary lock. The dam is made up of thirteen movable gates that control the flow of water. The middle gates, numbers 5, 6, and 7, are large, "roller" gates. The gates on either side are smaller, "tainter" gates. The gates are separated by concrete "piers" that extend 40 feet into the river from the gates. Ladder rungs are built into the downstream face of the pier, known as the "piernose."

Downstream from LD13 there are a series of "baffle blocks" that are built into the concrete foundations in the river. The baffle blocks are designed to prevent erosion by dissipating water energy. The blocks produce varying amounts of surface and subsurface turbulence, depending on factors such as the gate settings and water level. The surface turbulence may be visible as boiling water or white caps, while the subsurface turbulence is not visible to boaters. The dissipation of water energy also produces a phenomenon known as a "breakline." A breakline is created when the water near the baffle blocks is raised above the level of the water directly in front of the dam, causing the current to flow back to the dam. The water on the downstream side of the breakline continues to flow away from the dam. As there are several sets of baffle blocks there will be several breaklines. The location of the breaklines will vary according to gate settings and water levels, but anyone fishing near the dam will notice that the back-current is carrying fishing lines and debris toward the dam.

Other than the physical design of the dam, the facts were contested. After reviewing the evidence presented by the parties the court made extensive findings of fact. The court found that LD13 is an attractive area for fishing, but is also a hazardous one. Until 1968 the public was advised to stay 300 feet away from the downstream side of the dam. In 1968 the "restricted" area was changed to 100 feet. There was conflicting testimony at trial as to how often fishermen violated the restriction and came within 100 feet of the dam. Plaintiffs presented testimony indicating that boaters frequently entered the restricted area, while dam employees testified that such instances were rare. The court did not resolve this contradiction, but did note that there was no credible proof that anyone had tied up to the pier as decedents did, or had even come as close to the pier as decedents did. The court also noted that the lockmen were supposed to warn boaters observed entering the restricted area, but were under no duty actively to police the area.

On the evening of June 22, 1977, decedents went fishing near LD13 in a 16-foot fiberglass boat. All three men were avid fishers, and decedent Schlatter had fished within the 100 foot restricted area in the past. Around 7:00 p.m. decedents approached Charles Munson, who was fishing 200 feet downstream from LD13, and discussed the fishing conditions with him. After trolling behind Munson for awhile, decedents proceeded to the dam. At about 7:30 p.m. Munson observed one of the decedents tie a line from their boat to the ladder on the piernose between gates 6 and 7. Another fisherman, Terry Cram, arrived in the fishing area about 7:30 p.m. and observed decedents fishing 500-600 feet downstream from the dam, indicating that Munson must have observed decedents tie their boat to the piernose sometime after 7:30 p.m.

Carolyn and Richard Trude observed decedents fishing after they tied to the piernose. Carolyn testified that one of the decedents would pull the boat up to the pier and then let it drift downstream for 10-15 feet. Decedents repeated this maneuver several times while Carolyn watched. The Trudes testified that they heard cries for help around 8:00 p.m., as did another fisherman, John Burman. No witness actually saw decedents' boat capsize. The first person to see a post-accident occurrence was fisherman Matzen, who immediately began unsuccessful rescue efforts. After reviewing Matzen's testimony the court concluded that it was consistent with an 8:00 p.m. accident.

After being informed of the accident, the lockmen closed the gates. Decedents' empty boat was caught in the current in front of gate 6 and was being slammed into the gate. The mooring line, trolling motor and part of the gunwale were still attached to the piernose. Decedents' bodies were recovered three days later. None of the men were wearing life-vests, although the boat was equipped with an ample supply. Trude, Martzen, and Burman all testified that they saw decedents' heads and arms above water as they were washed downstream.

II. Warnings

Plaintiffs' principal contention is that the warnings posted on and around LD13 were inadequate in that they did not warn boaters of the type of danger presented by the dam. The complained of warnings consisted of the following:

(1) A sign, eight feet by five feet, posted on the intermediate wall of the auxiliary lock, which read ...


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