The opinion of the court was delivered by: Mihm, District Judge.
This is an action for damages flowing from the death on July
15, 1982 of Terry Coates, husband and father of the Plaintiffs.
Suit is brought pursuant to the Federal Tort Claims Act,
28 U.S.C. § 2671 et seq, being based upon § 2674. Jurisdiction of
this Court is based upon 28 U.S.C. § 1346(b) and venue is
properly asserted under 28 U.S.C. § 1402(b). Colorado law
applies.
On the day Terry Coates drowned, he was camping with his wife
and two children in an area of Rocky Mountain National Park known
as the Aspenglen Campground. He was, on that day, 36 years of
age, healthy, and employed by the Peoria Public Schools. He had
begun as a teacher with the school district and had, by virtue of
additional schooling and effective performance, moved up into an
administrative position. The evidence showed that Terry Coates
was an accomplished handyman, performing many of the routine
duties of maintenance and repair around his home. In addition, he
completely remodeled the family basement, doing all but the most
basic plumbing in order to convert it to a family room. He also
made furniture for the home. He built the patio, repaired the
family cars, and did everyday yard work and housework. He also
was actively involved with his children, helping them with their
school work and taking opportunities to teach them through the
family's recreational activities. This latter activity included
teaching the children biology while they were on camping trips.
Theirs was a family of avid campers, and in July of 1982 they
planned the longest camping trip they had ever taken, going to
Rocky Mountain National Park in Colorado. Upon their arrival at
the camp they paid the fee, which was assessed by the United
States for camping, and were assigned a location in the Aspenglen
Campground.
At this point, the Court will attempt to create a word picture
of that area in Rocky Mountain National Park relevant to an
understanding of the events which occurred on the day of Terry
Coates' death.
At the top of a steep mountainous incline is the Lawn Lake Dam
(the dam), which is situated within the park but owned by the
Farmers Irrigation Ditch and Reservoir Company. Near the dam and
proceeding down the side of the mountain is a water channel known
as the Roaring River Drainage. At the base of the Drainage there
is a large, relatively flat meadow area which is known as
Horseshoe Park. Although the terrain of Horseshoe Park itself is
substantially flat, the elevation of the west end is higher than
that of the east end so that the park is tilted downward in the
direction of Aspenglen Campground. At the lower east end of
Horseshoe Park is a second dam, known as Cascade Dam, which is
approximately 40 feet wide and located about one-half mile from
the Aspenglen Campground. The campground itself is downstream
from the Cascade Dam, sitting at an elevation lower than that of
Horseshoe Park. It consists of two separate areas; the first a
"mainland" area consisting of a parking lot and walk-in
campsites, and the second being an island of still lower
elevation, connected to the mainland by a footbridge.
On the morning of July 15, 1982, the tent of Terry Coates and
his family was pitched in a mainland campsite at the Aspenglen
Campground. Sometime before 6:30 a.m. that morning, the Lawn Lake
Dam had failed and a garbage man, observing the rushing water,
notified the ranger station which served that portion of the
park. The following events all occurred within a period of
slightly more than one hour. Park rangers were alerted to the
potentially dangerous situation and, within approximately 20
minutes of the report of the dam's failure, Ranger Schultz was
dispatched to warn the "walk-in" (mainland) campsites. At 6:50,
he entered the campsite and, within 15 minutes, had warned
several of the campers, but not all of them assigned to that
area. He did not, however, tell them that a dam had failed or
that a flood was approaching; rather, he suggested, apparently
without urgency, that it might be wise for campers to evacuate
the area. Neither Terry nor Rosemary Coates received any warning
from Ranger Schultz, although they did have second-hand
information that campers were being warned to leave the area. At
that time, they could see what Rosemary Coates described as a
"little water," but nothing to warn them of the actual situation.
This was approximately 7:15. The Coates had planned to leave the
Aspenglen Campground that day anyway. While Rosemary Coates woke
the children and prepared to leave, Terry Coates went to the
parking area, got his camera from the car, and began taking
pictures. After she had packed up, Mrs. Coates heard a loud
noise, saw a rush of water, and began to move to high ground with
the children. She had no knowledge at that point of where her
husband was. It is, however, apparent that he had returned to the
car because his camera was later found there. The testimony shows
that witnesses saw Terry Coates and Bridget Dorris, who also died
in the flood, crossing the footbridge to the island portion of
the campground.
Although the testimony indicates a good deal of ranger activity
during the course of these events, the Court finds by a
preponderance of the evidence that the conduct of the Defendant
was negligent in the following respects: (1) The Defendant failed
to post an observer at the Cascade Dam to monitor the flood
waters and their impact on the dam; (2) they failed to have a
ranger in Aspenglen Campground at all times during the flood; (3)
they failed to give adequate warning of the danger resulting from
the failure of the dam to Terry Coates; and (4) they failed to
maintain or implement a plan for dealing with emergencies, such
as the one involved here.
On the issue of damages, the Court finds that Terry Coates'
widow and two minor children sustained a pecuniary loss, as a
result of his death, in the amount of Eight Hundred Thousand
Dollars ($800,000). Since the time of his death, Rosemary Coates
and her children have received Social Security survivor benefits
from the Social Security Administration. At the time of trial,
the amount paid to them, collectively, was $10,259. Because of
her remarriage in January of 1985, Rosemary Coates is no longer
eligible to receive benefits; Marcian and Adam, however, will
continue to receive payment until each has attained the age of
18. Extrapolating from the current rate of payment and making
reasonable projections, it appears that Marcian is entitled to an
additional $9,036 and Adam to an additional $13,806.
Turning to the failure of the Lawn Lake Dam, which was the
precipitating event, the Court finds that, although the dam is
located within the boundaries of the Rocky Mountain National
Park, it was, in fact, built in 1902 by the Farmers Irrigation
Ditch and Reservoir Company and is still owned by them pursuant
to an easement granted them by the Government. Although the
federal Government had never formally inspected the dam, it was
inspected in 1975, 1977, and 1978 by a Colorado State Engineer.
It was scheduled for federal inspection in 1982 on a date later
than July 15. The most probable cause of the dam's collapse was
rapid erosion caused by water seeping through a breach in the
junction of an inlet pipe and a valve. Since it appears that such
erosion would be extremely rapid, it is unlikely that a normal
inspection of the dam would have disclosed the defect unless that
inspection took place within a few hours prior to its failure.
It may well be that, as Plaintiffs allege, Lawn Lake Dam was a
ticking bomb. Inspection by the federal Government may or may not
have revealed critical structural defects, including the one
which appears to have been the most probable cause of the dam's
failure on July 15, 1982. The record in this case is such that
the Court finds Plaintiffs have not shown by a preponderance of
the evidence ...