*2 BOGGS, Before MILBURN and CONTIE, Judges, Circuit Senior Judge. Circuit BOGGS, Judge. Circuit appeal Plaintiffs judg- district court’s denying recovery ment in a tort action mailing put on the list or who injuries alleg- names be against the United navigational chart. purchased warnings about by inadequate edly caused affirm. Kentucky River. We on the a dam closed, the After the locks were warn-
ings
Secretary
revised as well. The
delegated
responsibil-
Army
ultimate
formulating
warning system
ity for
new
Kentucky
on the
Dam No.
Lock and
Kentucky
responsibili-
District. This
*3
1904 and
River,
between
was constructed
Engi-
the
ty was to be exercised
District
Army Corps of
by the United States
Dickson,
Larry
his
neеr and
associates.
time,
(the “Corps”). Since that
Engineers
Management
Waterways
the
chief
su-
continuously controlled and
it has been
District, made in-
Branch of the Louisville
responsibility
Corps. All
by the
pervised
regarding
legal
the
re-
quiries of counsel
Corps.
warning
rested with the
devices
for
deactivаting
maintaining
or
sponsibility just around the
11 is located
Lock No.
warnings,
of the
considered the
certain
sharp curves
the
series of
third of a
maintaining
feasibility of
the
costs and
the
The distance from
Kentucky River.
sign,
warning buoys
upstream
and the
and
of the dam about
to the crest
last curve
his recommendаtions
to the
forwarded
dam, a
approaching the
feet. When
Engineer.
Pursuant
to his recom-
Chief
illusion that
optical
the
is faced with
boater
mendation,
buoys
removed
the
were
be-
ahead, making
straight
river continues
the
locks,
cause,
Dickson felt that
without the
perceive.
very
dam
difficult
the
repair
or fix the
it would be difficult
place.
In
heavy chains that held them
system at Lock No.
warning
In
the
addition,
sign
away
feet
from the
upper
on the
sign painted
11 consisted of
also removed for
“Danger,
dam on the tree was
stated
guide
wall that
end of
sign
only
The
that
maintenance reasоns.
yellow
and black
High Dam” that was
the lock structure itself.
left was on
sign
at the lower was
lettering, a
downstream
Dam,
sign
possible
submer-
High
This
“Danger,
guide wall that stated
high.
level rose too
a tree
sion
the water
sign posted
on
Stay Away,” and
stating “Dan-
up river of the dam
1000 feet
on the
May
the water level
On
feet, Keep to the
ger, High Dam 1000
running
the level
5V2 feet above
river was
Right.”
a result
the word “Dam”
of the dam. As
“Danger” on
part of the word
possibly
from and
acting pursuant
to orders
In
submerged. On this
warning sign was
of the
River Division
the head of
Ohio
Pamela,
Graves,
day, Larry
his wife
warning
Engineers to increase the
Corps of
the rivеr for a
Darren were on
areas,
Dis-
their son
the Louisville
at certain water
operating the
Larry Graves was
upstream boat ride.
warning buoys
trict installed two
in the left-hand
Graves was
buoys
The
boat. Darren
dam at Lock No. 11.
from the
windshield, and Pamela
diameter,
seat behind the
rose 36 inches
13 inches in
were
reclining
seat in the
on a bench
water,
“Danger Dam” Graves was
and had
out of the
Pam and Darren had
front of the boat.
buoys
were also
painted on them.
was fas-
jackets,
only Darren’s
in or-
life
but
placed diagonally across the stream
wearing a
Larry
tened.
Graves was
right
of the dam
der to steer boaters
ride,
their
majority
For the
jacket.
life
lock.
towards the
the river.
stayed in the middle of
they
July
Corps decided to close
warning sign,
one
one
They only noticed
Kentucky River due to
locks on the
crossings.
underwater cable
about
information
rising
per
cost
use. This
their
saw
tеstified that no one
Pamela Graves
classified section
was disseminated
they realized the
any warnings, and that
Lexington newspa-
Louisville and
of the
ten
only approximately
danger of the dam
pers,
being mailed to all those
as well as
drop-off,
point
away from the dam
mailing
Corps.
of thе
feet
on the
list
who were
Ms. Graves
first becomes visible.
orga-
where it
This list included 1822 individuals
that her
that she could tell
their
further testified
requested
nizations who had
drop-off
light
difficulty
repair,
of the
also noticed the
because
able
husband
dam,
warning sign
on the
they
on his face before
went
of the look
рublished in
paper,
notices
and the nav-
Witnesses on the bank of
over the dam.
igational guidebooks
of the
ad-
appeared
it
that Mr.
testified that
river
equate warning
danger. The
court
engine into
put
reverse
Graves
also found that
the Graveses were the
went over
try to avoid the dam.
boat
accident; specifical-
proximate cause of the
river,
jack-
life
and Darren’s and Pam’s
travelling
fast,
ly, that the boat was
too
However,
ripped off of them.
ets were
lookout,
keep
there was a failure to
and a
they
managed to
the shore
both
reach
failure of Mr. Graves to wear a life vest.
Larry
help from others on the bank.
days
ten
body was discovered
la-
Graves’s
findings
clearly
These factual
are not
thirty
a site
miles from
accident.
ter at
there
erroneous because
was credible evi-
support
dence on the record to
these find-
suit in federal dis-
Pamela Graves filed
ings. There was evidence that
the boat
Admiralty
Act
trict court under the Suits
*4
may
travelling
have been
a safe
above
741-752,
(“SIAA”), U.S.C.App.
on be-
46
§§
speed because of Darren
testimo-
Graves’s
husband,
herself, her deceased
half of
ny
planing coupled
of
how
boat was
trial,
During
govern-
her minor child.
expert testimony concerning
speed
with
argued that the district court
initially
ment
required
planing;
expert
there was
evi-
jurisdiction because
subject
lacked
matter
jacket might
prevent-
that a
dence
life
have
exception”
“discretionary
function
Gravеs;
ed the death of Mr.
there was
type
from this
of tort
shielded the U.S.
testimony
evidence from Pamela Graves’s
admiralty
action
on
claims.
based
keeping
that no one on the boat was
not
court held that the United States was
lookout;
expert
and there was
evidence
case,
prеsent
immune from suit in the
but
buoys
repaired
could not be
warnings
provided
it had
sufficient
maintained when
locks were closed.
notice,
through
publications, and the re-
Similarly, the district court’s determination
maining sign
no
so that there was
breach
regarding
adequacy
warnings
of the
is
duty,
negligence.
of
and thus no
The court
clearly
erroneous. The court below
that,
event,
any
went on to hold
that,
correctly took notice of the fact
at
proximate
was the
Graveses’ behavior
circuit,
charged
in this
least
boaters
cause of the accident.
navigational
with the use of
charts. See
Stаtes,
Gemp v.
684 F.2d
408
United
II
(6th Cir.1982). We believe the district
Generally,
reviewing
a district
finding
knowledge coupled
court’s
of this
negligence
court’s determination of
an
remaining warning sign
with the
reason-
action,
admiralty
this court is not to over
ably
any duty
satisfies
to warn.
finding
clearly
turn that
unless it is
errone
Although there is evidence thаt a life
Co., Inc.,
Towing
692
ous. In re Paducah
jacket might
Larry
not have saved
Graves
Cir.1982).
(6th
finding
A
F.2d
421
is
warning sign
upriver
or that a
further
reviewing
if
“clearly erroneous”
court might
helped prevent
tragedy,
have
this
it
firm
is left with the definite and
conviction
duty
try
is not this court’s
the case de
made after exam
that mistake has been
Thеrefore, though
might
novo.
we
have
ining all of the evidence. Anderson v.
fact,
findings
made different
of
are not
we
564, 573,
City
City,
Bessemer
470 U.S.
“firm
under the
conviction that the district
(1985).
105 S.Ct.
had met its to warn of hazards Ill closing associated of the locks. Specifically, the district court concluded if Even we felt the district court’s deter- negligence clearly buoys that the removal of the was reason- minatiоn of to be errone-
137
ary
exception does not insulate all
of a
function
ous,
the suit because
would dismiss
we
making; specifically,
gov-
when a
decision
jurisdiction.
matter
lack
entity
job pursuant
ernmental
assumes a
of the
held that the conduct
court below
imple- governmental poliсy,
job
is to
com-
determining and
be
States
United
according
policy,
to the
and not with
pleted
the clo-
menting safety precautions after
Apparently, the dis-
immune from unbridled discretion.
No. 11 was not
sure of Lock
safety precautions
found the
“discre-
trict court
decisions were not
suit becаuse the
pursuant
to the decision to close
in Admi-
taken
under the Suits
tionary functions”
comparable
activity
11
to the
Lock No.
disagree.
ralty Act. We
after he had been
the loekmaster Chotin
court does not have
The district
operation
in the
of the locks. The
trained
Tort Claims
under the Federal
jurisdiction
similarity,
any,
illusory.
if
against the
for claims
United
Act
Chotin,
Unlike
the facts of this case
negligence consists in flaws
alleged
strongly suggest
applicability
performance of a discre
exception
function
because
duty. Myslakowski v.
tionary function or
States,
policy decisions werе made about what
F.2d
Cir.
United
warnings
2680(a).
type of
were effective and cost-
1986);
This discretion
28 U.S.C. §
justified, considering
that Lock No. was
exception
applies
also
ary function
Chotin,
brought.
closed. In
there had been a
case is
be
under which this
SIAA
States,
policy
operate
decision to
the locks
Transportation v. United
Chotin
Cir.1987)(en banc).
manner,
neg-
1342, 1347(6th
certain
which the loekmaster
carry
In the
determining
ligently failed to
out.
consider when
Factors
*5
case,
policy
by
excep
there was no
established
discretionary function
whether the
higher authority regarding
type
of
of the con
аpplies include the nature
tion
warnings needed at the site of a closed
duct,
Congress intended it
that is whether
Instead,
District exer-
liability, and
lock.
the Louisville
from tort
shielded
be
arriving
policy discretion in
at the
are
cised
government
actions of the
whether
warnings.
type of
Dickson
private
аppropriate
indi
regulator of the conduct of
as
cost,
Airlines,
feasibility of mainte-
considered the
Varig
United States v.
viduals.
types of
2755, 2765,
of various
797, 104
L.Ed. nance and effectiveness
81
467 U.S.
S.Ct.
recommendation,
warnings. His
final
(1984).
Discretionary decisions
2d 660
quintessen-
by
superiors,
his
was
simply adopted
policy, not
decisions that
involve
among competing considera-
tially a choice
government agency or
any decision that a
tions,
policy
merely an execution of
by Berkovitz
employee makes. Berkovitz
U.S. _,
may
108 S.Ct.
This distinction
States,
from above.
v.
486
received
United
by examining this
(1988).
further
1954, 1960,
This
illustrated
termined that United 682 of warning buoys (7th Cir.1982), duty presented a to maintain be- F.2d 613 issues difficulty buoy of maintenance many cause of the similar to those in the instant case presence case, of the locks. Certain- respects. without the In that the Seventh Circuit maintaining buoys, ly, difficulty in respect rеasoned as follows with consideration, is related to the safety a application of function ex- locks, government’s decision to close ception to the lock and dam discretionary decision. warning systems: that the reasonableness of made the mistake believe [W]e
Thе district court has specific warning systems “discretionary is a matter sus- function ex- applying of ceptible judicial scrutiny and highest-level we there- ception” only decisions fore conclude that the district court acted implementation of those de- finding all proper sphere determining within its discretionary. This is too cisions to be not program warnings implement- of rigid a determination that does not ade- negligent ed at lock and of this quately take into account the facts [the dam] supported finding liability. Supreme stated in the case. As the Court otherwise, Were to hold States, we it wоuld be v. seminal case Dalehite United perceive 956, 968, ‘difficult to which duties under 97 73 S.Ct. L.Ed. U.S. by tort law could not be avoided a similar (1953), policy ignore decision to them.’ “discretionary duty” function or [T]he for suit under that cannot form basis States, (quoting Id. at 622 v. Smith United Tort Act includes more than Claims (10th Cir.1976)). Analo- programs and the initiation of activities. rule, gizing to the Samaritan Good determinations made It also includes government court held that even if the executives or administrators establish- duty public boating to warn the specifications or ing plans, schedules risks associated with the lock and in- dam pol- operations. Whеre there is room for in that once it volved undertook icy judgment decision there is discre- safety perform that function it became obli- (footnote omitted). tion. gated negligence. to do so without Id. “ *6 continued, The court “The reaffirmed, recently As this court ‘even warning in failure to use due cаre negligent of a failure public danger could therefore be government policymaker to consider all rel- liability.” Id. basis aspects subject of a matter under evant consideration does not vitiate the discre- I hold that in the would instant as of the decision that tionary charactеr Callas, the reasonableness of the warn- ” made.’ In re Ohio River Disaster Liti- ing system government chosen as (6th Cir.1988) gation, 862 F.2d any negligence implementa- well as its 97). (quoting Myslakowski, susceptible judicial scrutiny. tion is Therefore, district we hold that the court However, opinion since I am of the jurisidiction matter to hear lacked II, majority analysis part is correct its this case. part represents separate and since II independent holding, I concur in alternative CONTIE, Judge, Senior Circuit judgment. the court’s joining concurring judgment in the part. majority’s judgment I concur in the af-
firming ap- the district court’s dismissal of
pellants’ join majority’s I in the claim. am, opinion.
analysis part II of its
however, agree majori- unable to with the analysis
ty’s opinion. III of its For reason, separately.
this I write