A number of people drowned in
separate accidents at reservoirs in Arkansas and Louisiana when they got
sucked into flood control dams built by the US Army Corps of Engineers
They were sucked into the
floodgates when the gates were opened by USACE workers.
A number of separate tort
claims against USACE were brought under the Federal Tort Claims Act of
The Federal Tort Claims
Act allows suits against the Federal
government for negligence.
The Trial Court in Arkansas
found that although USACE willfully and maliciously failed to warn of a known
danger, the USACE was immune from damages under the Mississippi Flood
Control Act of 1928 (33 U.S.C.
§702c), which states that "no
liability of any kind shall attach to or rest upon the United States for
any damage from or by floods or flood waters at any place.
USACE had argued that since
the reservoirs were designed to stop floods, all of the water in them was
'flood water' and therefore they were covered under the immunity Statute.
The key words in this
Statute were any and damage.
The Trial Court in Louisiana
came to a similar decision. Both plaintiffs appealed.
The Appellate Court
consolidated the cases.
The Appellate Court reversed
the decision. USACE appealed.
The Appellate Court found
that that Congress intended 33 U.S.C. §702c to immunize the Government from liability for damage resulting directly
from construction of flood control projects and for flooding caused by
factors beyond the Government's control, but had not intended to shield
the negligent or wrongful acts of Government employees either in the
construction or continued operation of flood control projects, including
the failure to warn the public of hazards to their use of reservoirs.
The US Supreme Court reversed
the Appellate Court and found that 33 U.S.C. §702c shields USACE from liability.
The US Supreme Court found
that, on its face, the language of 33 U.S.C. §702c covers the accidents at issue.
The Court found that the
ordinary meaning of the word "damage" covers injury to both
property and person and cannot be considered ambiguous in that it might
refer only to damage to property.
The language "any
damage" and "liability of any kind" undercuts a narrow
The words "flood"
and "flood waters" do not create any uncertainty in the
context of these accidents.
The Court looked to the
legislative history of 33 U.S.C. §702c and found no ambiguity or contradiction.
The Court looked to the
legislative history and found that the legislative history does not
support construing 33 U.S.C. §702c
as immunizing the Government from liability only for property damage
directly resulting from construction of flood control projects, but
rather indicates Congress' intention to protect the Government from any
liability for damages that might arise out of flood control.
The Court was not unsympathetic
to the claims, but felt that their hands were tied by the language of the
"As the facts in this
case demonstrate, one can well understand why the Court of Appeals
sought to find a principled way to hold the Government responsible for
its concededly negligent conduct. But our role is to effectuate
Congress' intent, and Congress rarely speaks more plainly than it has in
the provision we apply here. If that provision is to be changed, it
should be by Congress and not by this Court. We therefore follow the
plain language of 702c, a section of the 1928 Act that received careful
consideration by Congress and that has remained unchanged for nearly 60
years, and hold that the Federal Government is immune from suit in this
type of case."
The Mississippi Flood
Control Act was probably written for
the limited purpose of insulating the USACE from damages if they have to
purposely flood some land as part of a flood control scheme. It was
probably not written to insulate USACE from liability for
drowning waterskiers. Congress probably didn't even consider the issue of
waterskiers in 1928.