Hardin v. US4/30/2002
COUNSEL
ARGUED: Douglas S. Johnston, Jr., BARRETT, JOHNSTON & PARSLEY, Nashville, Tennessee, for Appellants. Stephen R. Campbell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Douglas S. Johnston, Jr., BARRETT, JOHNSTON & PARSLEY, Nashville, Tennessee, for Appellants. Stephen R. Campbell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
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OPINION
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SILER, Circuit Judge. Plaintiff Kathleen Pearce, on behalf of herself, her deceased husband, and her minor children, along with plaintiff Annette Harris, on behalf of herself and her deceased husband, filed suit under the Suits in Admiralty Act ("SIAA") against the defendant United States. The plaintiffs alleged that the negligent operation of the Old Hickory Lock and Dam ("Old Hickory") by the U.S. Army Corps of Engineers ("Corps") led to the drowning deaths of their husbands. After a bench trial, the district court found that the Corps was not negligent in its operation of Old Hickory and granted a judgment for the United States. Plaintiffs appeal that judgment. We affirm.
I. Background
Old Hickory, located on the Cumberland River above Nashville, Tennessee, is owned and operated by the United States through its agency, the Corps. The general public uses the waters above and below the dam for recreation, particularly fishing.
On July 29, 1997, Jeffrey Pearce and Keith Harris ("decedents") went fishing at Old Hickory. Throughout their fishing trip, they were observed by other fishermen. At approximately 4:00 p.m., the decedents launched Pearce's boat from a boat ramp located below the dam and, not wearing life jackets, drove the boat upriver toward the dam's powerhouse. Traveling through turbulent water containing "boils," which were created by discharges of water from operating turbines, they steered their boat to an area below the dam called the "taildeck." After arriving at the taildeck, they drove their boat into a turbine opening to fish. Once inside the dam opening, they secured their boat to the dam by tying it to a nail that was driven into the dam structure.
Nine warning signs were along the route from the boat ramp, where the decedents launched their boat, to the dam opening, where they fished. Two large signs read, "Warning: Life Jacket Required from Here to Dam." Four read, "Danger: Water Subject to Sudden Rise and Violent Turbulence." And three more, which were posted on the dam itself, read, "Turbulent Waters: Keep Out." Additionally, a navigational chart clearly marked the area above and below the dam, including the turbine openings, as "Danger Areas." This navigational chart was available to the public when the decedents went fishing on July 29, 1997.
Despite warning signs and the navigational chart that warned of danger, the decedents entered the dam opening and fished from their boat. There were no boils in the spot where they fished but, nonetheless, boils were "all around the dam." Other fishermen noticed that, while fishing inside the dam opening, the decedents were not wearing life jackets, which were required under Tennessee law, but none could say whether the decedents were wearing life jackets at the exact moment of their accident. The district court found that "the evidence strongly suggests that neither of the Decedents was wearing a life jacket immediately prior to the accident."
At approximately 6:20 p.m., the dam's shift operator turned the turbines off the condensing mode, which involved opening the gates to allow water to enter the turbine chambers. This procedure created turbulence and a powerful undertow. Hearing a grating sound that signaled to him that the gates were opening and a release was imminent, another fishe
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