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ROSA v. UNITED STATES

February 25, 1985

ANGEL ROSA, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: RAMBO

 Plaintiff filed the captioned action on August 6, 1982, seeking wrongful death and survivors' benefits in the death of eight year old Maria Rosa. This court, sitting without a jury, heard testimony from both parties in a trial which commenced October 16, 1984. Upon consideration of the record before it, this court finds the defendant liable in the death of Maria Rosa.

 Discussion

 Factual Background

 Blue Marsh Lake, located in the Schuylkill River Basin, Tulpehocken Creek, Leesport, Berks County, Pennsylvania, is property owned by the United States and administered by the Army Corps of Engineers. In October, 1962, pursuant to the provisions of the Rivers and Harbors Act, 33 U.S.C. § 426e-g and the Omnibus Flood Control Act, 33 U.S.C. § 701, et seq., Congress approved implementation of the Blue Marsh Lake Project. The Project, completed in 1980, is designed primarily to assist flood control and to enhance the quality and quantity of water supplied throughout the western sector of Perks County. In addition, designated areas incidentally created by and not devoted to these purposes are made available to the public for recreational use.

 The principal day-use facility, known as the Dry Brooks Recreation Area, is situated on approximately sixty-six acres of land bordering the northeast shore of the Lake's main lower section. A boathouse, concession stand and beach area are all available for use by the public. No fee is charged for admission to the Dry Brooks Recreation Area, or for use of the available facilities. *fn1" The designated swimming area consists of a shallow pool with a maximum depth of five feet. This area is marked off by orange buoys. Surrounding the designated swimming area is another area marked off by white buoys, referred to as the no boat zone. Water depths increase substantially. The area beyond the white buoys is referred to as the boat zone.

 Several differences between the designated swimming area and the boat zone are significant to this litigation. In the designated swim area, the water depths are shallow and increase only gradually. Even at a distance of eighty (80) feet from shore, the water depth would not exceed five (5) feet. The lake bottom is packed and fairly uniform. In contrast, in the boat zone (the area beyond the white buoys) the bottom is not packed; the surface is rocky and uneven. Water depths increase rapidly. The depth reaches five (5) feet at a distance of twenty-five (25) feet from shore. At a distance of seventy-five to eighty feet, the depth would be ten feet, or twice that of the designated swim area at a similar distance from shore. The uneven lake bottom makes it difficult to determine water depth in any given area. On a busy day when many people are in the lake, the water becomes muddy, making it even more difficult to determine water depth.

 Beach regulations are posted in the park area. The regulations provide, in part, that swimming is at one's "own risk," see 36 C.F.R. § 327.5 (1982); that for one's own safety, persons using the facilities should "remain inside the orange-zoned area" as "depths increase beyond," and that "inner tubes are prohibited" within the designated swimming area. Swimming outside the designated area is permitted but swimming at boat launch sites is prohibited. There were no signs which indicated the actual water depths in the area beyond the white buoy.

 The park manager at Blue Marsh Lake was Albert Schoenebeck. Mr. Schoenebeck is a graduate of Penn State University with a degree in Park and Recreation Administration. Following graduation, he spent ten (10) years working as an assistant park director. In May of 1979, he was hired by the Army Corps of Engineers as the first and only park manager at Blue Marsh Lake.

 As park manager, Schoenebeck supervised a staff of park technicians. These technicians would patrol the park, oversee the beach area and enforce park regulations. They received several days of training at the beginning of their employment. This training would include a Park Technicians' Manual drafted in part by Schoenebeck. No lifeguards were employed at the park. However, it appeared from the testimony that those technicians who patrolled the beach area had training in lifesaving. It is not clear from the record whether such training was a requirement for employment.

 Blue Marsh Lake was very busy on summer weekends. In an effort to control crowds when the parking lot was filled to capacity, technicians on duty would close the gates to the park. This action was not effective in controlling the crowds, since those wishing to use the lake would park outside the gates and walk in. No efforts were made to discourage this practice. Sunday, June 28, 1981 was such a day. Schoenebeck estimated that approximately 1800-2800 persons used the facilities of the Dry Brooks Complex at Blue Marsh Lake on that day.

 On June 28, 1981, eight year old Maria Rosa went to Blue Marsh Lake with an older brother, Andres, age 13, two sisters, Elizabeth, age 14 and Madolyn, age 9, and two adult family friends. Specifically, the group went to the Dry Brooks Complex. Maria Rosa was a nonswimmer. Andres and Elizabeth could swim only to a limited degree. The children took with them two innertubes.

 During the course of the afternoon, Maria's brother Andres and her sister Elizabeth took the innertubes into the designated swimming area (the area within the orange buoys). Maria was with them. Andres testified that while in that area, he walked to the end of the orange buoy. He got off the innertube and while the water came up to his chin he was able to walk on the sandy bottom of the lake. Andres was, by his own recollection, about five feet, five inches tall at that time.

 A short time later, Kathy Grimm, a uniformed park attendant and an employee of defendant United States of America, got the attention of the Rosa children and told them that the rules of Blue Marsh Lake prohibited them from using innertubes within the designated swimming area. That uniformed employee went on to instruct the children that they could move down the beach and use their innertubes in the boat zone (the area outside the white buoys). Maria was present during this interaction with the park attendant.

 The children followed the instructions given by the park attendant. They left the water, and returned to the beach for a short time. They then went to the boat zone (the area beyond the white buoys) in keeping with the instructions they had been given, and took their innertubes into the water. The children went out to about the same distance from shore as they had been while in the designated swimming area. Other people were standing in the water near them. While playing with her brother and sister, Maria Rosa attempted to jump from one innertube to another. She slipped from the tube and into the water. Unable to swim, she quickly sank below the water's surface. Elizabeth felt Maria's hand under water and grabbed it. Maria then slipped from her sister's grasp and could not be found again.

 At approximately 4:40 p.m., a park technician was alerted that Maria had disappeared under water. The technician radioed the Park Manager who, in turn, notified the local police and ambulance company. Park technicians then assembled a human chain of rescue volunteers and began repeated searches in the area where Maria was reported to have disappeared. At approximately 4:49 p.m., the police arrived. At approximately 4:50 p.m., Maria was found by a volunteer about 15 yards from the shore in water about ten feet deep. The police immediately began to administer CPR as Maria was carried to shore. She was transported by ambulance to Reading Hospital. Maria never regained consciousness and died on July 1, 1981 while undergoing intensive care.

 There were two sets of regulations in effect at Blue Marsh Lake in June of 1981, "Beach Regulations" and "Area Regulations." Typically, these regulations were displayed together. They were posted in the bath house (four locations), at the food concession stand (one location), and on a wooden kiosk or information center (beach regulations only). That kiosk, a roofed structure approximately four feet by four feet, was located about midway between the concession stand and the beach, a total distance of about 100-120 feet. There was some testimony that signs were also posted in the parking and picnicking areas. The signs were printed in English only.

 The beach regulations in effect in 1981 provided:

 
1. SWIMMING BEYOND NO-BOAT-ZONE BUOYS IS PROHIBITED. FOR YOUR SAFETY, PLEASE REMAIN IN SHALLOW ORANGE ZONE; DEPTHS INCREASE BEYOND.
 
2. BUOYS, BALLS, AIR MATS, FLOATS, FRISBEES ARE NOT PERMITTED. U.S. COAST GUARD APPROVED ...

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