You be the Judge

[NolaAuTiger 3,295]

I must say, I do enjoy the occasional threads on originalism and interpretation generally. A lot of respectable posters on here who, believe it or not, present far better arguments on interpretation than those by actual lawyers in the real world. 

So, I wanted to share a hypothetical from a book that I have and see what responses it will get. I'll delete if no one chimes in:

You're the Appellate Judge. Here is the case--There has been a tragic accident at a reservoir near New Orleans. Two honeymooning water-skiers have died. A federal employee sitting atop a tower that looked down on the reservoir. With full knowledge that there were skiers nearby, he opened the huge floodgates to let out water. There was no particular need to drain any water. Yet he did it. The force of the current he created sucked two married couples through the gates, and one member of each couple--one husband and one wife--died. The surviving spouses have sued the federal government. After a trial, the district judge found that the government employee's actions went "beyond gross negligence" and "constituted a classic example of death and injuries resulting from conscious governmental indifference to public safety."

The 1952 Federal Tort Claims Act broadly authorized most tort actions against the federal government, but it expressly excluded actions prohibited by the 1928 Flood Control Act, which said 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." The issue--whether this statutory immunity embraces the loss of human life--is a question of interpretation.

The lawyers in the case have urged you to consider all kinds of factors-

• The contents of the reservoir are "flood waters" under the statute, because a prior Supreme Court decision has so held.
• The immunizing statute is dated 1928, and the recent trend is against tort immunities.
• The purpose of the statute was to prevent a rash of lawsuits against the federal government for massive flood-control measures taken after the devastating Mississippi flood of 1927.
• The statute has not been the subject of reported litigation since 1942. One of your fellow-judges insists that the 1928 statute is defunct.
• It is well established that waivers of sovereign immunity are to be narrowly construed. This means, one of your colleagues asserts, that the 1928 exemption from the Federal Tort Claims Act should be broadly construed.
• The record suggests that the surviving spouses are of extremely modest means, and it does not show whether the decedents had any life insurance.
• The legislative history suggests that the overriding concern was with the federal government's destruction of farmland by flooding it to create reservoirs. Nowhere does it contain any reference to a loss of life.
• The original drafters of the immunity, as far as it appears, never foresaw a day in which flood-control reservoirs would be used recreationally (as they have been since the 1950s). One of your colleagues has invited you to imaginatively reconstruct what those members of Congress would want if they were here today; they would never, your colleague thinks, have intended immunity. The colleague also suggested that today's Congress would never endorse such an immunity.
• The Flood Control Act's immunity-conferring language is sweeping: no liability of any kind for any damage at any place.

You have the deciding vote. How should you decide? Why? What do you consider?   

 

[icanthearyou 4,462]

IMHO, the spirit, the intent of all of these laws, statutes is quite clear.  The government has liability in this situation.  All of the rest is,,, just fancy (stupid) lawyer tricks.

 

 

[Leftfield 2,595]

2 hours ago, NolaAuTiger said:

You're the Appellate Judge. Here is the case--There has been a tragic accident at a reservoir near New Orleans. Two honeymooning water-skiers have died. A federal employee sitting atop a tower that looked down on the reservoir. With full knowledge that there were skiers nearby, he opened the huge floodgates to let out water. There was no particular need to drain any water. Yet he did it. The force of the current he created sucked two married couples through the gates, and one member of each couple--one husband and one wife--died. The surviving spouses have sued the federal government. After a trial, the district judge found that the government employee's actions went "beyond gross negligence" and "constituted a classic example of death and injuries resulting from conscious governmental indifference to public safety."

The 1952 Federal Tort Claims Act broadly authorized most tort actions against the federal government, but it expressly excluded actions prohibited by the 1928 Flood Control Act, which said 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." The issue--whether this statutory immunity embraces the loss of human life--is a question of interpretation.

The lawyers in the case have urged you to consider all kinds of factors-

• The contents of the reservoir are "flood waters" under the statute, because a prior Supreme Court decision has so held.
• The immunizing statute is dated 1928, and the recent trend is against tort immunities.
• The purpose of the statute was to prevent a rash of lawsuits against the federal government for massive flood-control measures taken after the devastating Mississippi flood of 1927.
• The statute has not been the subject of reported litigation since 1942. One of your fellow-judges insists that the 1928 statute is defunct.
• It is well established that waivers of sovereign immunity are to be narrowly construed. This means, one of your colleagues asserts, that the 1928 exemption from the Federal Tort Claims Act should be broadly construed.
• The record suggests that the surviving spouses are of extremely modest means, and it does not show whether the decedents had any life insurance.
• The legislative history suggests that the overriding concern was with the federal government's destruction of farmland by flooding it to create reservoirs. Nowhere does it contain any reference to a loss of life.
• The original drafters of the immunity, as far as it appears, never foresaw a day in which flood-control reservoirs would be used recreationally (as they have been since the 1950s). One of your colleagues has invited you to imaginatively reconstruct what those members of Congress would want if they were here today; they would never, your colleague thinks, have intended immunity. The colleague also suggested that today's Congress would never endorse such an immunity.
• The Flood Control Act's immunity-conferring language is sweeping: no liability of any kind for any damage at any place.

You have the deciding vote. How should you decide? Why? What do you consider?   

 

I think we can all agree as to what "Justice" would be in this case, but of course we're debating the actual legal aspects, so:

I'm assuming there is no other information available for the exercise, so we should only focus on what has been given.

Was frustrated to see the first bullet point on the factors. Up until then I was thinking it would be a simple matter of pointing out that the water would not be considered flooding, since there was no need for the gate to be opened. Should have figured it wouldn't be that easy.

It seems clear based on a number of items cited that the original intent of the statute could never have anticipated recreational use. That being said, even though the Act hasn't been cited in litigation since the 40's, the 1952 Tort Claims Act specifically excluded it. I'd be very curious to know exactly when flood control reservoirs began being used recreationally, and if that was widespread knowledge when the 1952 Act was passed.

Even though it isn't addressed, I'd also be surprised if, during the drafting of the original legislation, no one at least brought up the possibility of loss of life as a potential form of damage. My guess is people of the time were very much aware of the dangers of heavy flooding.

I guess I don't have quite enough information to know for sure how I'd vote. I am not big on judges overstepping their authority, so I'd have to know if there were specific reasons the Statute wasn't changed in 1952, or anything that kept if from being changed since. That said, I do think a court should have the authority to remedy a situation when there is a clear understanding of what justice should be, and based on the information given this appears to be that. If I were the judge, I would go against Supreme Court precedent (easy for me to say) and rule that the waters released in this case were not flooding, though I would like to read the circumstances of the case where the Court so held it.

Should also mention that I would feel somewhat more at ease finding for the surviving spouses in this case since it appears to be a panel, and not a single judge, so power is not in the hands of a single person. 

One other curiosity is the mention of two couples. Is this something that actually happened, or is it a thought experiment? If it's the latter, I keep thinking there must be something odd legally about there being two couples, or the fact that one husband and one wife survived. I just can't think of any reason for there to be two couples instead of one, or a reason for the other specifics to be mentioned, unless this actually happened.

 

[NolaAuTiger 3,295]

3 hours ago, Leftfield said:

One other curiosity is the mention of two couples. Is this something that actually happened, or is it a thought experiment? 

Spoiler alert, this is based on a real SCOTUS decision. The case ultimately turns on what “damage” means. 

[NolaAuTiger 3,295]

10 hours ago, Leftfield said:

Even though it isn't addressed, I'd also be surprised if, during the drafting of the original legislation, no one at least brought up the possibility of loss of life as a potential form of damage.

This gets to the heart of the issue.

[Leftfield 2,595]

10 hours ago, NolaAuTiger said:

This gets to the heart of the issue.

I briefly went through the 1952 Tort Claims Act, but didn't see any specific mention of the Flood Control Act. I did not try to look up the SCOTUS case, so as to not "cheat."

Based on your hint, my guess is that loss of life was interpreted to be part of the definition of damages. Seeing as the 1928 Act made no attempt to define damages, it must have been intended to be at least extremely broad-based, if not all-encompassing. It appears the 1952 Act made no attempt to remedy that. Depending on when this case was decided, I could see it going either way. On a purely technical standpoint it would seem cut-and-dry that the plaintiffs had no case. Regardless, if it were a more recent case, I would suspect, citing your statement that recent trends go against tort immunity, the plaintiffs won.

As mentioned, I would have found for the plaintiffs, but I'm not exactly a legal expert. There is probably plenty I'm missing in terms of procedure, precedent, and technicalities.

[autigeremt 6,600]

Was there an inherit need to release water through the floodgates based on flow rates and upstream rainfall that, if not released, posed a serious and inherent danger to public safety above and below the dam? 

[NolaAuTiger 3,295]

Just now, autigeremt said:

Was there an inherit need to release water through the floodgates based on flow rates and upstream rainfall that, if not released, posed a serious and inherent danger to public safety above and below the dam? 

No. How important would that factor be in your view?

[alexava 6,973]

I’m more interested in investigating the employee who opened the gates. Intent? Criminal prosecution? TVA has policies, schedules publicly online and maybe other warning measures. I still avoid the upper side of dams. These skiers could have taken all precautions and been murdered. 

[NolaAuTiger 3,295]

On 12/3/2022 at 1:31 PM, Leftfield said:

I briefly went through the 1952 Tort Claims Act, but didn't see any specific mention of the Flood Control Act. I did not try to look up the SCOTUS case, so as to not "cheat."

Based on your hint, my guess is that loss of life was interpreted to be part of the definition of damages. Seeing as the 1928 Act made no attempt to define damages, it must have been intended to be at least extremely broad-based, if not all-encompassing. It appears the 1952 Act made no attempt to remedy that. Depending on when this case was decided, I could see it going either way. On a purely technical standpoint it would seem cut-and-dry that the plaintiffs had no case. Regardless, if it were a more recent case, I would suspect, citing your statement that recent trends go against tort immunity, the plaintiffs won.

As mentioned, I would have found for the plaintiffs, but I'm not exactly a legal expert. There is probably plenty I'm missing in terms of procedure, precedent, and technicalities.

Most of the bullet point arguments are irrelevant. If you are a textualist, you focus on the language passed by the legislature. As noted, the key word is damage. It is inconceivable that a native speaker of English would refer to human deaths as "damage at a place." Damages might be awarded for the deaths; but the deaths cannot idiomatically be referred to as damage. The word "damage" (harm to property) is distinct in meaning from "damages" (money awarded to a litigant). No one who witnessed the deaths would have said, "What horrific damage there was!" 

Based on the text alone, a textualist would conclude that the survivors should be allowed to recover because immunity is inapplicable. Again, most of the arguments from the lawyers are (or at least should be) wholly irrelevant.

In the actual case on which this is based, United States v. James, the Fifth Circuit allowed recovery, but SCOTUS reversed. The Court's opinion glossed over the distinction between damage (harm to property) and damages (money awarded in a court judgment) and used the words interchangeably. 

In truth, the surviving spouses recovered nothing. Justice Stevens filed an admirable textualist and originalist dissent. Definitely worth the read! 

[autigeremt 6,600]

12 minutes ago, NolaAuTiger said:

No. How important would that factor be in your view?

In my view very little. As for the federal government it might be useful information to defend the action itself. Is there clearly marked and defined safety zones with signage to inform the public of the potential danger of being within so many yards of the floodgates?

[Leftfield 2,595]

2 minutes ago, NolaAuTiger said:

Most of the bullet point arguments are irrelevant. If you are a textualist, you focus on the language passed by the legislature. As noted, the key word is damage. It is inconceivable that a native speaker of English would refer to human deaths as "damage at a place." Damages might be awarded for the deaths; but the deaths cannot idiomatically be referred to as damage. The word "damage" (harm to property) is distinct in meaning from "damages" (money awarded to a litigant). No one who witnessed the deaths would have said, "What horrific damage there was!" 

Based on the text alone, a textualist would conclude that the survivors should be allowed to recover because immunity is inapplicable. Again, most of the arguments from the lawyers are (or at least should be) wholly irrelevant.

In the actual case on which this is based, United States v. James, the Fifth Circuit allowed recovery, but SCOTUS reversed. The Court's opinion glossed over the distinction between damage (harm to property) and damages (money awarded in a court judgment) and used the words interchangeably. 

In truth, the surviving spouses recovered nothing. Justice Stevens filed an admirable textualist and originalist dissent. Definitely worth the read! 

Thanks for the education on this! I can definitely see the point. With damages I was interpreting based on how I expected it to be defined legally, thus showing my ignorance. Actually good to know that the definition is less broad than I thought.

[NolaAuTiger 3,295]

51 minutes ago, Leftfield said:

Thanks for the education on this! I can definitely see the point. With damages I was interpreting based on how I expected it to be defined legally, thus showing my ignorance. Actually good to know that the definition is less broad than I thought.

When I first tried the hypothetical, I was not nearly as close to the heart of the issue as you were. It also exemplifies how judges vary in their approach to resolving legal issues--at the end of the day, you can only decide what the parties place before you, more or less. 

[DKW 86 7,419]

So, legalisms over justice?

Isnt that why we have Judge Trials and Jury Trials?

[icanthearyou 4,462]

37 minutes ago, DKW 86 said:

So, legalisms over justice?

Isnt that why we have Judge Trials and Jury Trials?

The concept of jury nullification needs to be expanded to include civil litigation, IMHO.  Justice should be the goal.  The "rule of law" mean little without justice.

[DKW 86 7,419]

11 hours ago, icanthearyou said:

The concept of jury nullification needs to be expanded to include civil litigation, IMHO.  Justice should be the goal.  The "rule of law" mean little without justice.

Agree. That was my point. Juries seem to go for Justice more than Rule of Law. 

[NolaAuTiger 3,295]

13 hours ago, DKW 86 said:

So, legalisms over justice?

Isnt that why we have Judge Trials and Jury Trials?

Depends on what you think the role of a judge is. In my view, a judge's duty is to say what the law is--the law that was passed by Congress. Their role is not, on the other hand, to declare what they wish the law would be or to ignore the law for the sake of what they think is "just." The latter has no standard and is unpredictable. 

In the hypothetical/actual SCOTUS case above, I think the majority got it wrong. The spouses should have recovered, not because it is "just," but because the immunity at issue clearly did not apply. 

[Didba 5,256]

On 12/2/2022 at 1:00 PM, NolaAuTiger said:

I must say, I do enjoy the occasional threads on originalism and interpretation generally. A lot of respectable posters on here who, believe it or not, present far better arguments on interpretation than those by actual lawyers in the real world. 

So, I wanted to share a hypothetical from a book that I have and see what responses it will get. I'll delete if no one chimes in:

You're the Appellate Judge. Here is the case--There has been a tragic accident at a reservoir near New Orleans. Two honeymooning water-skiers have died. A federal employee sitting atop a tower that looked down on the reservoir. With full knowledge that there were skiers nearby, he opened the huge floodgates to let out water. There was no particular need to drain any water. Yet he did it. The force of the current he created sucked two married couples through the gates, and one member of each couple--one husband and one wife--died. The surviving spouses have sued the federal government. After a trial, the district judge found that the government employee's actions went "beyond gross negligence" and "constituted a classic example of death and injuries resulting from conscious governmental indifference to public safety."

The 1952 Federal Tort Claims Act broadly authorized most tort actions against the federal government, but it expressly excluded actions prohibited by the 1928 Flood Control Act, which said 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." The issue--whether this statutory immunity embraces the loss of human life--is a question of interpretation.

The lawyers in the case have urged you to consider all kinds of factors-

• The contents of the reservoir are "flood waters" under the statute, because a prior Supreme Court decision has so held.
• The immunizing statute is dated 1928, and the recent trend is against tort immunities.
• The purpose of the statute was to prevent a rash of lawsuits against the federal government for massive flood-control measures taken after the devastating Mississippi flood of 1927.
• The statute has not been the subject of reported litigation since 1942. One of your fellow-judges insists that the 1928 statute is defunct.
• It is well established that waivers of sovereign immunity are to be narrowly construed. This means, one of your colleagues asserts, that the 1928 exemption from the Federal Tort Claims Act should be broadly construed.
• The record suggests that the surviving spouses are of extremely modest means, and it does not show whether the decedents had any life insurance.
• The legislative history suggests that the overriding concern was with the federal government's destruction of farmland by flooding it to create reservoirs. Nowhere does it contain any reference to a loss of life.
• The original drafters of the immunity, as far as it appears, never foresaw a day in which flood-control reservoirs would be used recreationally (as they have been since the 1950s). One of your colleagues has invited you to imaginatively reconstruct what those members of Congress would want if they were here today; they would never, your colleague thinks, have intended immunity. The colleague also suggested that today's Congress would never endorse such an immunity.
• The Flood Control Act's immunity-conferring language is sweeping: no liability of any kind for any damage at any place.

You have the deciding vote. How should you decide? Why? What do you consider?   

 

Do I have access to the legislative history?

[Didba 5,256]

On 12/5/2022 at 9:12 AM, NolaAuTiger said:

In the actual case on which this is based, United States v. James, the Fifth Circuit allowed recovery, but SCOTUS reversed. The Court's opinion glossed over the distinction between damage (harm to property) and damages (money awarded in a court judgment) and used the words interchangeably. 

In truth, the surviving spouses recovered nothing. Justice Stevens filed an admirable textualist and originalist dissent. Definitely worth the read! 

This is so disappointing. 

[NolaAuTiger 3,295]

1 hour ago, Didba said:

Do I have access to the legislative history?

Legislative history. Sighs*, ahhhhhh (deep breath), the gutter of statutory interpretation. 😈

[AU9377 4,926]

On 12/2/2022 at 2:00 PM, NolaAuTiger said:

I must say, I do enjoy the occasional threads on originalism and interpretation generally. A lot of respectable posters on here who, believe it or not, present far better arguments on interpretation than those by actual lawyers in the real world. 

So, I wanted to share a hypothetical from a book that I have and see what responses it will get. I'll delete if no one chimes in:

You're the Appellate Judge. Here is the case--There has been a tragic accident at a reservoir near New Orleans. Two honeymooning water-skiers have died. A federal employee sitting atop a tower that looked down on the reservoir. With full knowledge that there were skiers nearby, he opened the huge floodgates to let out water. There was no particular need to drain any water. Yet he did it. The force of the current he created sucked two married couples through the gates, and one member of each couple--one husband and one wife--died. The surviving spouses have sued the federal government. After a trial, the district judge found that the government employee's actions went "beyond gross negligence" and "constituted a classic example of death and injuries resulting from conscious governmental indifference to public safety."

The 1952 Federal Tort Claims Act broadly authorized most tort actions against the federal government, but it expressly excluded actions prohibited by the 1928 Flood Control Act, which said 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." The issue--whether this statutory immunity embraces the loss of human life--is a question of interpretation.

The lawyers in the case have urged you to consider all kinds of factors-

• The contents of the reservoir are "flood waters" under the statute, because a prior Supreme Court decision has so held.
• The immunizing statute is dated 1928, and the recent trend is against tort immunities.
• The purpose of the statute was to prevent a rash of lawsuits against the federal government for massive flood-control measures taken after the devastating Mississippi flood of 1927.
• The statute has not been the subject of reported litigation since 1942. One of your fellow-judges insists that the 1928 statute is defunct.
• It is well established that waivers of sovereign immunity are to be narrowly construed. This means, one of your colleagues asserts, that the 1928 exemption from the Federal Tort Claims Act should be broadly construed.
• The record suggests that the surviving spouses are of extremely modest means, and it does not show whether the decedents had any life insurance.
• The legislative history suggests that the overriding concern was with the federal government's destruction of farmland by flooding it to create reservoirs. Nowhere does it contain any reference to a loss of life.
• The original drafters of the immunity, as far as it appears, never foresaw a day in which flood-control reservoirs would be used recreationally (as they have been since the 1950s). One of your colleagues has invited you to imaginatively reconstruct what those members of Congress would want if they were here today; they would never, your colleague thinks, have intended immunity. The colleague also suggested that today's Congress would never endorse such an immunity.
• The Flood Control Act's immunity-conferring language is sweeping: no liability of any kind for any damage at any place.

You have the deciding vote. How should you decide? Why? What do you consider?   

 

This is a terrific exam question.  I will go into more detail when I have more time, but my first impressions are the following...

1. The economic position of the plaintiffs should have no bearing on the applicability or inapplicability of the statutes, other than an argument that the plaintiffs are unjustly denied the ability to be made whole by any other measure.  I believe an argument exists that the 1928 statute prevented litigation against the federal government over the federal government's remedial actions in addressing a problem that had devastated the region and created the need for government action.  In contrast, the actions here are in no way remedial actions, but are deliberate actions by an agent of the government carried out in a manner that has been determined to be gross negligence and in total disregard for the damage caused tp the plaintiffs.

2. In many ways, this is a classic FTCA case.  I represented the parents of 4 British rugby players that were killed when the U.S. Army van they were being transported in crashed on their way back to Ft Benning from Atlanta.  To make a long story short, they were here as guests of the Army and they had been provided housing on base.  They were also provided a driver.  The driver was active duty and had been assigned the task by his commanding officer.  They were transported in U.S. Army vans.  After playing their tournament games in Atlanta, they went out in Buckhead drinking.  The driver was to pick them up at a designated time and place.  The driver had several friends in the Atlanta area and decided to socialize with them during the gap in time between dropping the team off and picking them up.  The driver arrived at the designated time and place and the team boarded the van for their return trip to Ft Benning.  The team members were unaware that the driver had been drinking with friends and had a blood alcohol level of approx .20.  The soldier passed out behind the wheel, crossing into the media and flipping the van, killing 4 of the young men. 

I will continue tomorrow.