never given direct notice of the potential flooding caused by the
breach in the dam, Terry Coates and his wife did receive indirect
notice from another camper concerning possible flooding. There
was, as well, an increased level of activity within the campsites
occasioned by people moving, albeit slowly, to evacuate the area.
There was a general low level of information about the flood and
at some point, the environment of the campground began to change.
In fact, Terry Coates was sufficiently impressed with the
awesomeness of the rising waters to take pictures. The pictures
which he had taken establish clearly that, by reason of his own
observation, Terry Coates had knowledge that the water was
rushing in and that the water level was rising. He did not have
much information, but the Court believes that it was enough to
require him to take some reasonable steps for his own safety.
There are substantial discrepancies between the descriptions of
the physical situation in the campground in the depositions of
Wayne Haymon and Mrs. Thomas, the mother of Bridget Dorris, the
other decedent. The deposition of Wayne Haymon described a
situation of escalating seriousness, including an increase of
noise, a rising level of churning, angry water, and a change in
the nature and appearance of the water from clear to muddy. Mrs.
Thomas, on the other hand, tendered a report which minimized the
potential for danger and, seemingly, excused the decedents'
failure to leave the area more quickly. The Court is inclined to
give greater credence to Mr. Haymon's deposition because it has
a ring of truth and, more importantly, much of what he says is
corroborated elsewhere in the record. The Court fears that, under
the circumstances, Mrs. Thomas may have suffered substantial
residual guilt as a result of her daughter's tragic death. Wayne
Haymon had no personal interest in the litigation (either
directly or indirectly), and there is no indication of any
motivation for subliminal and unintentioned shading of the facts.
The Court finds that Terry Coates had notice (albeit inadequate),
had time to remove himself safely from the endangered area, and
took inadequate steps to protect himself.
The Court has found that the actual pecuniary loss sustained by
Rosemary Coates and her children was $800,000, and now holds that
the negligence attributable to the United States Government is
60% of the total negligence which occurred in this case, and that
attributable to Terry Coates is 40%. Therefore, the total
liability of the Government to the Plaintiffs is Four Hundred
Eighty Thousand Dollars ($480,000).
CONCLUSIONS OF LAW
The Government has argued that the United States is entitled to
offset that portion of Social Security payments made to Rosemary
Coates and the children which were contributed by the Government.
They concede that the amount which was actually contributed by
Terry Coates and his employers is a collateral source and,
therefore, is not appropriately considered as offset. The
Government cites the case of Steckler v. United States,
549 F.2d 1372 (10th Cir. 1977) which is apparently the only case applying
Colorado law to the issue of offsetting a Federal Tort Claims Act
judgment with Social Security benefits. In that case, the Court
of Appeals upheld, as proper, the offsetting of that amount of
Social Security benefits which was not attributable to the direct
contributions of the employee and his employers.
The Plaintiffs counter by first noting that the Social Security
Fund is a separate fund from the general treasury and they argue
that all amounts contributed by all workers and all employers to
the fund are collateral sources. As support for this position,
they cite Smith v. United States, 587 F.2d 1013 (3rd Cir. 1978).
In that case, the court performed rather extensive analysis of
the approach used by other circuit courts of appeals in dealing
with the collateral source doctrine and its application to the
Federal Tort Claims Act. Generally, federal courts seem to hold
that there is a distinction between those benefits which come
from unfunded general revenues and
those which come from a "special fund supplied in part by the
beneficiary or a relative upon whom the beneficiary is
dependent." Two of the cases considered were Steckler v. United
States, supra, and United States v. Harue Hayashi, 282 F.2d 599
(9th Cir. 1960), which dealt specifically with the application of
the doctrine to Social Security benefits. In Harue Hayashi the
court specifically held that Social Security survivor benefits
are "collateral" to an FTCA recovery, finding that:
"The money which goes into this fund is provided by a
system of excise taxes on employers and income taxes
on employees, designed to be actuarially sound and
Again, in Steckler, the court dealt with Social Security payments
and their analysis concluded that, because the Government has
supplemented the fund when necessary, some burden should rest on
a plaintiff to establish, if possible, that portion contributed
by the Government so as to permit offset of other portions as
The court in Smith then states its agreement with the Ninth
Circuit in Harue Hayashi that:
"Where state law recognizes the `collateral source'
doctrine, Social Security benefits should not be
deducted from a recovery under the Federal Tort
Claims Act. FTCA recoveries come out of general
revenues; Social Security benefits are funded almost
entirely from employee and employer
contributions . . . The Government here did not argue
that a FTCA recovery must be reduced by that portion
of Social Security benefits attributable to the
Government's contribution out of general revenues.
Nevertheless, we are constrained to note our
disagreement with the Tenth Circuit in Steckler,
supra, and decline therefore to adopt its approach.
We believe that the Government's payments are so
minimal and so difficult to trace that such an
approach would be impracticable."
The Court believes that this is a more realistic analysis of
this issue and finds that, since it is virtually impossible to
ascertain accurately the portion of the payments contributed by
the Government, Steckler, considered in its entirety, is not
fundamentally inconsistent with the holding in Smith. It is,
therefore, held that the Social Security payments made to
Rosemary Coates and her children should not offset the damage
award made to them in this Order.