*1 Hayes stated he died. that believed error. harmless necessary to show evidence dragged and car stopped he then that at 92 S.Ct. at Schneble, 405 U.S. See church, of a body onto lawn Johnson’s erroneously admitted Moreover, the 1058. morning. next Dog it Hedine, where was found Blue and Hayes, testimony of testimony of Rather, other with Combined Id. insignificant. far from was Hedine, Dog, this evidence Blue Hayes, and prosecution’s part of integral was an case prosecution’s gaps in the closed the against Lufkins. case testimony, if the Their Lufkins. convinces record reading of the A careful what it, directly established jury believed significant been have there would me that not: testimony could admitted properly he had case if prosecutor’s in the gaps Johnson, that to and blow that Lufkins’ evi- properly admitted solely on relied testimony of alone, fatal. The blow only showed First, evidence that dence. Dog cu- Hedine, was not Blue and Hayes, with Johnson Sylvester Lufkins struck that evidence, properly admitted mulative of handle; died that Johnson an axe corroborate evidence the other nor did been hematoma, could have subdural Arsdall, 475 U.S. it. Van contradict head; and single blow by a 1438. 106 S.Ct. at injury receiving persons that admitting The eight sum, hours. the error long six live as testimony Hedine, Dog other Blue one of the and Hayes, that remained possibility beyond struck reasonable also incident harmless to the was not eyewitnesses evidence, questions this door closed this Without prosecutor doubt. Johnson.4 after eye- happened what of the four about three remained still he called when importance that testified Given Hayes hit Johnson. testify. Lufkins witnesses can- testimony, hit else Johnson, no one that witnesses’ of the three hit he never jury and that any not fall confidence say did Johnson, that Johnson and on the basis that Lufkins testified convicted Hedine would have own head. hit his only testimony alone. has right properly hand and admitted no he has because hand, on his left thumb fingers and three to strike axe lifted not have he could other no one that
Johnson; testified he also Blue night. Johnson hit
than Lufkins only weighed
Dog testified from heart, and suffered had a bad
pounds,
hand, was
Johnson,
the other
lupus.
All of
pounds.
weighed 240
tall and
Henderson,
6'1"
HENDERSON; Robert
Linda
prosecutor’s
testimony supported
Dorothy
Henderson;
III;
Eric
in at-
alone
Lufkins
contention
Henderson, Appellants,
tacking Johnson.
evidence
admitted
Second,
properly
America, Appellee.
STATES
UNITED
did
that Johnson
possibility
open the
left
91-1224.
No.
attack.
Lufkins'
result
a direct
not die as
happened
Something might
Appeals,
Court of
United States
incident
after
death
Johnson’s
Eighth Circuit.
problem,
Anticipating
Lufkins.
9, 1991.
Sept.
Submitted
testimony
offered
prosecutor
after
immediately
the effect
Hayes to
3, 1992.
June
Decided
Hayes’ car
into
incident,
got
Johnson
hospi-
him to
to drive
Hayes began
Hayes, John-
according to
route,
En
tal.
dark,
Hayes
turn
began
skin
son’s
Hedine,
Dog
or Blue
Hayes,
determine
fingerprints
Moreover,
police never took
Johnson.
to attack
the axe
used
had also
handle,
impossible to
making it
axe
from the
*2
Ryan noticed
question,
morning in
Mo.,
ar-
Springfield,
Beezley,
T.
Robert
up her
inching
level was
the water
appellants.
gued,
yards down-
walked
waders,
she
so
Spring-
Atty.,
Brown,
U.S.
Asst.
W.
Earl
to where
stream
*3
appellee.
for
Mo., argued,
field,
rise
reacting
the
to
if he was
to
fishing
see
time, two
same
the
Around
level.
water
in
Judge,
BOWMAN, Circuit
Before
to
yelled
Henderson
Robert
near
boaters
and
Judge,
HEANEY,
Circuit
Senior
be-
lake
the
leave
to
needed
he
that
him
Judge.
LOKEN, Circuit
to
released
be
beginning
was
water
boaters
Although the
dam.2
through the
Judge.
Circuit
HEANEY, Senior
sound,
horn
the
heard
apparently
decedent,
wife
Henderson, the
Linda
than
to the dam
closer
was
who
Ryan,
dis-
Jr., appeals the
Henderson,
F.
Robert
not
did
she
Henderson, claimed
Robert
dismissal
judgment
court’s
trict
Robert
near
fisherman
Another
it.
hear
against
action
Claims
Tort
Federal
of her
not
did
he
testified
also
Henderson
re-
part,
We affirm
States.
the United
Robert
time
By the
horn.
the
hear
proceedings
for
remand
and
in part,
verse
and
rising water
the
noticed
Henderson
opinion;
consistent
grav-
predicament,
to his
react
began to
being en-
was
he stood
on which
el bar
BACKGROUND
water.
under
submerged
by and
gulfed
dispute
do
case
in this
parties
The
Robert
danger,
he was
realized
he
Once
1987, Robert F.
January
On
off,
facts.
waders
get his
worked
Henderson
grav-
fishing on a
Henderson, was wade
Jr.
start-
so, the water
do
before
but
approximately
Taneycomo
Lake
el bar
large
one
hips, until
his
rushing over
ed
Dam
Rock
Table
mile below
one-fourth
shoul-
his
over
and
back
crept up his
wave
States
The United
Branson, Missouri.
near
away.
him
washed
and
ders
Table
operates
Engineers
Corps of
Army
portion
owns
United
The
power
hydroelectric
provide
Dam
Rock
Henderson
Robert
where
Taneycomo
Lake
morning on
During the
region.
for the
assistant
fishing.
In October
fishing,
was
was
Henderson
Robert
which
State
for
general
attorney
from
water
released
Engineers
Corps of
voicing
formally
a memorandum
power. prepared
hydroelectric
generate
the dam
generat-
regarding
citizens
released,
Robert
concerns
was
water
When
Dam
Rock
Table
from
gravel
discharges
bar
ing
on
trapped
was
Henderson
The
Taneycomo.
Lake
eventually
on
effect
their
was
and
and
lake waters
rising
instances
several
recounted
memorandum
his death.
away to
swept
rescued
to be
had
fishermen
in which
fishing with
had been
Henderson
Robert
discharge
by the
rising waters
he had
whom
Ryan,
friend, Mary
a
particularly
dam;
the memorandum
Ryan
past.
in the
Taneycomo
Lake
fished
had
who
owner
resort
“one
stated
read
had
Henderson
Robert
testified
several
Taneycomo]
Lake
been [on
rising wa-
warning
sign
lot
parking
going
are
eventually lives
said that
years
their
customarily parked
they
ters,1 that
It
not taken.”
is
action
some
lost if
to be
Robert
and
sign,
near
car
combination
that “[t]he
concluded
caught
be
her, “Don’t
told
Henderson
exist-
and
rising water
of the
rapidity
like a
you
drown
Corps will
there, the
out
heard
be
cannot
system
warning
ing
30 minutes
about
fishing for
rat.” After
Their
is unknown.
identity
boaters
sign read:
1. The
fisherman
by another
reported
warnings were
coming on
generators
warns
at Dam
Horn
to Robert
comments
their
overheard
who
move
and
rises
sudden
Be alert
line.
discussed,
fish-
third
bewill
As
Henderson.
open, no addition-
gates
ground. Once
higher
cer-
boaters
who overheard
erman
generation
when
sounded
al
man whom
tain that
Safety-Our
Your
increased.
are
flow
water
warning.
were
boaters
Engineers.
Corps of
Army
U.S.
Concern.
locations,
on some occasions and
some
wrongful
action,
[at]
death
others,
and not understood on
does create
first
jurisdictional
address a
issue
raised
problems which
need to be
apparently
dealt
government.
with,” and specifically recommended edu-
cating
public
rapid
level
I. Subject Matter Jurisdiction
changes
installing warning system
adequately
people
which would
alert
to ex-
Citing section 3 of the Flood Con
pect changes in the water level. The attor-
trol Act of
argues
ney general’s office
submitted
memo-
that this action must be dismissed for lack
Corps
Engineers.
randum the
When
subject
jurisdiction.
matter
Section 702c
*4
not
upon,
was
follow-up
several
provides that
liability of any
“[n]o
kind
letters encouraging action were sent to the
to,
shall attach
upon
or rest
the United
Corps
Engineers.
After Robert
for any
damage from by or
flood or
drowned,
Henderson
Corps
Engi-
flood
place.”
waters at any
33 U.S.C.
finally
louder,
neers
installed a
more audi-
(1988).
702c
agree
While we
§
with the
ble horn.
government’s characterization of this lan
wife, Linda,
Robert Henderson’s
filed guage as sweeping,
Supreme
Court has
wrongful
against
death action
ruled that the immunity it
upon
bestows
pursuant
United States
to the Federal Tort
is not absolute. See Unit
Act,
1346(b)
Claims
28 U.S.C.
and 2671
§§
James,
ed States v.
597,
7,
478 U.S.
n.
605
seq. (1988).
Act,
et
Under
federal
3116, 3121,
7,
106 S.Ct.
n.
As Hearst, 160 (quoting Davis v. at notified Id. repeatedly office general’s (1911)). According 143, 116 P. concerning the faults Cal. Engineers Corps of sense, or legal Sanders, in its malice Rock Table dangers of the potential and meaning malice, persist- “has a broader [than Despite legal system. Dam im any embraces no cor- ... took in fact Engineers malice ence, Corps and] motive,” in and could wrongful proper after or until measures rective or wan a so reckless raises which is neglect This “conduct death. clude of one’s disregard to wheth- in willfully tonly fact of material genuine issue gross infer from guilty of fact could that a trier rights er the Duncan, parlance or malo animo.” in the bad faith conduct negligence, (cita a original) in (emphasis demonstrated at 807-08 Id. regarding the safe omitted). Finally, law mere malice indifference conscious tions through Rock Table a defendant showing waters ly requires release States, just Umpleby v. United without act wrongful Accord Dam. committed Cir.1986) (reversing (8th 812, 816 F.2d Id. or excuse. gen- were there summary judgment where three de- defining these helpfully While to whether fact as material issues uine offer malice, courts grees of maliciously willfully or United applies as to which standard guidance little dangerous condition to warn failed however, Supreme Sanders, here. Recreational North Dakota’s violation legal upon relied of Missouri Court v. United Statute); Mandel see also Use “willful” define “wanton” terms Cir.1983) 963, 967 at 808. Id. legal sense. its “malice” the same summary judgment (reversing in their deploy terms states other Because Recreational the Arkansas grounds under those similar use statutes recreational judgment is Thus, summary Statute). Use legal malice— define Sanders used neg- gross for Henderson’s appropriate (1988) 37-1005 see, e.g., Neb.Rev.Stat. § particularly ruling is This *7 claim. ligence malicious”); N.D.Cent.Code (“willful or “a case is recalled compelled when malicious”); (“willful (1989) or 53-08-05 § where summary judgment suitable 20-9-16 Ann. Laws § S.D. Codified dif- facts undisputed are there wanton”) (“willful believe (1991) or —we might reason- inferences ultimate ferent Supreme the issue before were reasonable to which and as ably be drawn “mali- Missouri, equate it would Court v. Unit- disagree.” Mandel might persons Stat- Use Recreational in Missouri’s cious” 963, (citing United 968 719 ed legal sense. While in its “malice” ute 655, 82 Diebold, U.S. legal establishing malice threshold (1962)). 8 L.Ed.2d S.Ct. fact, to as malice as extreme is not “ general ‘a must it, still be satisfy there Malice 2. per- part a on the or intent wickedness earlier, As noted harm, or do son; inclination depraved a that state’s interpreted yet courts man- safety of or rights disregard the stat does the nor Statute Use Recreational ” Sanders, 682 S.W.2d generally.’ kind Supreme The “malicious.” define itself ute Newell, on Mali- Newell N. (quoting however, a provided has Missouri, Court (1892)). Prosecution cious Mis under of malice review comprehensive indi- no evidence has offered v. Daniel Int’l Sanders law. souri neglected government cating that banc). (en (Mo.1984) Corp., 682 S.W.2d in the warning system improve the prose for malicious an action reviewing In because suffer someone would hope that degrees of three cution, delineated Sanders Without inadequacies. system’s legal in its fact, malice malice malice: fact material evidence, genuine issue no 807-08 Id. at law. sense, malice in infers that theory, intended to had the responsi- harm Robert Henderson or others. Ac- bly, the tragedy underlying this case would cordingly, we affirm the district court’s not have occurred. In words, other ruling that certainly “there are no facts to Henderson contends that indicate that government] was mali- [the could have “eliminated the risk [of harm] cious.” by the exercise of reasonable care.” Now, however, Henderson urges that the 3. Activity Ultrahazardous release of waters through the dam was an can also violate ultrahazardous activity. definition, By Missouri’s Recreational Use Statute if it risk intrinsic in an activity ultrahazardous negligently failed to warn of an ultrahaz (thus cannot be eliminated justifying the ardous activity. See Mo.Ann.Stat. 537.- § customary imposition of liability). strict 348(1) (Vernon 1988). To ascertain wheth Therefore, Henderson cannot successfully er Henderson has an action pro under this claim that the government acted malicious- vision of Statute, the Recreational Use we ly practiced gross negligence in operat- must determine operation whether the ing the dam and then turn around and qualify dam could as an ultrahazardous successfully operating claim that the dam condition. No Missouri case law has exam was an ultrahazardous activity. At this ined whether operation of a dam is an juncture in ease, the life of the however, activity. ultrahazardous parties Both we are not reviewing the ultimate success urge therefore apply us to section 520 of respective Instead, claims. (Second) the Restatement Torts for de determining are whether Henderson’s termining whether the release of water claim that the dam anwas ultra- through the dam was an ultrahazardous hazardous activity can survive activity. accept We this invitation. Sec judgment. tion provides: light In considerations outlined Abnormally Dangerous Activi- § Restatement, genuine issue of materi- ties al fact exists to whether the release of determining activity is ab- water through the dam was an ultrahazard- normally dangerous, following activity. ous Rapidly releasing water factors are to be considered: through a dam surge creates a sudden (a) high existence degree of risk water rising level, and a which to- of some person, harm to the land or gether high result degree of risk of others; chattels of harm, as evidenced Robert Henderson’s (b) likelihood that the harm that re- death and the near preceded accidents sults from great; it will be *8 tragedy. (Second) his See Restatement of (c) inability to eliminate the risk the Torts, 520(a) (1977). That the harm re- § care; exercise of reasonable sulting from risk great this will be is obvi- (d) extent activity to which the is not a rushing ous: rising and water can leave matter usage; of common substantial, tragic, damage and oftentimes (e) inappropriateness of activity the to in its (Second) wake. See Restatement of place the on; where is carried and Torts, 520(b)(1977). Whether reasonable § (f) extent to which its value to the care could have eliminated the risk of harm community outweighed is by its dan- easily here is not so At determined. gerous attributes. juncture in the proceedings, record the has (Second) Restatement Torts 520 § developed regarding of not been whether a (1977). warning system could have been reason-
Earlier, ably we reviewed installed Henderson’s claim would overcome which factors, that the maliciously weather, wind, high and the as negligently by improving not fishermen, the dam and the of location downstream warning system, which the warning system which resulted in the fail- inadequate. knew was Under ing Henderson’s persons to alert below the dam that 1496 reasoning, the district on this Based tice.” dam. through the being released was
water summary judgment ordered Torts court (Second) Restatement See Henderson. 520(c).8 § husband the her while of whether that claims consideration Henderson This latter occasionally dam released the was operation by the that knew created risk is the care not dam, aware he was by reasonable through the eliminated can be his morning of determining whether danger on the specific factor crucial Colleges, ultrahazardous v. Lindenwood an thq Cross dam death. See operation re- (Mo.Ct.App.1984) failure 425 government’s activity. The S.W.2d concerning the invitee part of an complaints on the (“knowledge to the spond ade- danger an that suggest from which system condition general dam reasonably not necessarily could constitute warning system quate does arises claim danger support and appreciation and knowledge installed be ultra- an con- encountered.”). of the Henderson actually that can- issue factual This ever activity. danger been had hazardous that tends summary judgment. hus- on her then changing, be resolved never and present States, F.2d United v. that he Mandel aware have been would band summary suitable is not way. Henderson (“[A] case in harm’s himself placed facts undisputed are there decedent judgment where while argues that further inferences ultimate through different from which released might be that water knew to which as reasonably sign, be drawn might lot parking by the dam, warned (cit- disagree.”) might persons him to reasonable alert the siren to on he relied Diebold, 369 U.S. v. inade- United ing it was water, that release (1962)); 994, L.Ed.2d 655, 82 S.Ct. his death. which siren of the quacy Missouri-Kansas- v. also Hendricks see *9 not find did fishing below associated danger proximately Will conclusion court’s discharged knowledge dam, this Id. at 318. injury. his caused guard duty to warn of its from to be distinct here the case findWe the district danger. this him river striking the danger duty Will. has no words, landowner court’s “[A] Here, how- constant. was Will no- bottom already has to one who notice give reasonably will eliminated been have only tem have canvassed recognize 8. We whether ultimately determine suggested for considera- six factors three We activity. ultrahazardous an dam was proceeds to As the text by Restatement. tion remaining considera- address decline thus of whether factor feel explain, we Restatement. outlined warning sys- tions created risk harm ever, fishing gave below the dam rise rising to was ample time to make his way danger only when water was safely released gravel bar to the shore. through the dam. danger This intermittent Accordingly, a louder blast of the siren accounts very for the existence of the would put not have Henderson on notice of warning system. Only during the opera anything he did not know in sufficient time tion of the dam dangerous was it to be to allow for a margin of safety, yet for fishing in Taneycomo; Lake otherwise, only reasons known to him delayed his fishermen did not worry departure about from the gravel bar until it was rapidly rising water Fishermen, levels. too late. This unnecessary delay on his Henderson, like Robert upon relied part, the dam and not defendant’s failure to warn notify siren to them danger loomed. adequately, if indeed defendant was guilty Thus, genuine issue of material failure, ex of fact such a was the fatal error. See ists as to whether the inadequacy of Will v. United 315, 849 F.2d warning system or Cir.1988) (defendant’s asserted failure Henderson’s own negligence proximately to dangers warn of diving particular at a caused his accident. Hill v. campsite Air was not proximate cause of Shields, Inc., (Mo.Ct. 721 S.W.2d plaintiff’s injuries in view plaintiff’s App.1986) (a jury must decide knowledge whether de and evidence that a warning fendant’s failure to proximately warn would not have plaintiff deterred from en- plaintiff’s injury). gaging in the dangerous activity). The District Court determined there was
CONCLUSION no triable issue concerning Henderson’s early awareness that the water rising. We affirm the district court’s dismissal I am satisfied that its decision is correct of Henderson’s claim that the and should not be Therefore, disturbed. I maliciously in failing to adequately respectfully dissent. operation. announce the dam’s We reverse the district that, court’s ruling as a matter law, grossly
negligent failing to warn Robert
Henderson that being water was released
through dam, and further hold that the through
release of water might the dam
create an ultrahazardous condition. We also reverse district court’s MELAHN, Lewis E. Director of the Mis judgment ruling that Robert Henderson souri Division of Insurance and Receiv proximately caused his own death. Ac- er Casualty Company, of Transit Appel cordingly, case is remanded for further lee, proceedings consistent opinion. INSURANCE,
BOWMAN, PENNOCK Judge, Circuit dissenting. INC., Appellant. claim is Plaintiffs’ that defendant failed adequate sound of the re- No. 91-2316. dam, lease of from the and that this Appeals, United States Court of proximate failure was the cause of Robert Eighth Circuit. drowning. Based on the un- evidence, controverted the District Court Submitted 1992. Jan. granted summary judgment in favor of de- Decided June fendant, holding that if even defendant had *10 failed to adequate sound an warning, this
failure could not have proximate been the death,
cause of Henderson’s for Henderson
clearly actual knowledge the water notes theory, Henderson To further 483, 493-94 Co., 709 S.W.2d Texas R.R. compan- fishing the decedent’s neither in- court that trial (ruling (Mo.Ct.App.1986) heard fisherman nearby nor another ion expert witness permitted appropriately ques- morning in on the warning siren a regarding whether opinion express an tion. unusually dangerous crossing was railroad cites Will response, by the on relied factors none because Cir.1988), United exceeded opinion his framing expert judgment survived a case de- jurors who understanding of three-day trial. aof subject and was cross- themselves termine acci- diving swimming-hole involved Will dangerous). unusually ing was on his head struck Will where dent quadripleg- him a bottom, rendering river’s Cause Proximate B. diving at knew Will ic. Because contends next Henderson might and that dangerous hole ruling that erred court district (he had bottom the river his head strike her proximately did not search preliminary actually conducted held court district death. husband’s court depth), this its determine hole to knew because the district error clear