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DAVIDOW v. UNITED STATES

February 14, 1984

PAULA M. DAVIDOW and GERALD DAVIDOW, Plaintiffs,
v.
THE UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: MARSH

Paula M. Davidow and her husband, Gerald Davidow, the plaintiffs, seek damages from the defendant, The United States of America, to compensate them for injuries they sustained on September 3, 1979, while boating on Raystown Lake, Huntingdon County, Pennsylvania. The suit was brought under the Federal Tort Claims Act. 28 U.S.C. § 2671, et seq. Original jurisdiction is vested in the district court. 28 U.S.C. § 1346(b).

 Pursuant to the Federal Tort Claims Act, § 2675, Gerald Davidow filed an Administrative Claim dated November 3, 1980 for damages of $500,000 for his wife and $15,000 for himself. In an accompanying letter (Plaintiffs' Exhibit 31), he claimed loss of consortium. Paula Davidow filed an Administrative Claim dated November 3, 1980 for $2,000,000. On June 8, 1982, her claim was amended to $4,000,000.

 The claims were denied by the United States Army Claims Service, Office of the Judge Advocate.

 Paula and Gerald Davidow were divorced on September 8, 1982.

 This case has been tried on the issue of liability, damages being reserved under Rule 42(a), Fed.R.Civ.P.

 Raystown Lake was constructed by the United States Army Corps of Engineers, Baltimore District, as a combination flood control and recreational project pursuant to a national policy and congressional authority. *fn1"

 Raystown Lake is owned by the United States.

 The United States Army Corps of Engineers had possession and control of the lake, but supervision was in certain respects shared between the Corps and the Pennsylvania Fish Commission under the terms of a Memorandum of Understanding between those entities dated February 28, 1977 (Plaintiffs' Exhibit 1). In the Memorandum of Understanding between those entities, the District agreed to consult with the Commission or propose to the Commission recommendations for specific Regulations which might be desirable for reasons of public safety and to consult with the Commission relative to marking the lake with buoys and posting of speed limits and no wake signs and provide, install and maintain such buoys as were necessary. (Emphasis supplied.) Paul J. Readly, a member of the Corps of Engineers, confirmed that the buoys were purchased and placed by the Corps (Tr. p. 294).

 The length of Raystown Lake is over 30 miles. It runs generally north and south. At the north end is a dam. A number of peninsulas penetrate the lake rendering its appearance as serpentine. *fn2"

 The accident occurred off the point of a peninsula at mile marker 23. This peninsula is 1 mile long running in an easterly direction to a point about 25 feet wide. It is covered with a dense growth of foliage, trees, and brush. No one driving a boat down the north or south sides of the peninsula could see across it. *fn3" There were no posted speed restrictions and no danger buoys were present.

 The point of land at mile marker 23 constituted a dangerous area and a hazard to navigation due to severely restricted visibility afforded boaters when approaching the point from opposite directions and close to the shoreline. The situation presented to boaters approaching the tip of the point within 40 feet of the shoreline is a blind curve.

 An additional danger at the point exists from underwater land close to the surface of the water as appears in Plaintiffs' Exhibits 3, 5, and 8. This becomes a dangerous hazard when the water becomes choppy for in that event the underwater land cannot be seen as shown in Plaintiffs' Exhibits 4, 6, 7, and 11. All of these exhibits are pictures of the peninsula at mile marker 23.

 Gerald Davidow and Barry Anderson had operated their boats on Raystown Lake frequently during the years 1976, 1977, 1978, and 1979. Davidow's boat was 16 feet ...


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