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Andrews v. United States and Carl Andrews

filed: September 19, 1986.

MELISSA ANDREWS, ADMINISTRATRIX OF THE ESTATE OF LEO ANDREWS, JR., MELISSA ANDREWS, ADMINISTRATRIX OF THE ESTATE OF EDWARD ANDREWS AND MELISSA ANDREWS IN HER OWN RIGHT
v.
UNITED STATES OF AMERICA AND CARL ANDREWS, PERSONAL REPRESENTATIVE OF THE ESTATE OF LAVERNE ANDREWS (D.C.CIVIL NO. 82-0356) WALTER J. SMITH, ADMINISTRATOR OF THE ESTATE OF DAVID ALAN SMITH V. THE UNITED STATES OF AMERICA (D.C. CIVIL NO. 82-0357) CARL SPIKER, ADMINISTRATOR OF THE ESTATE OF CARLA MARIE SPIKER V. THE UNITED STATES OF AMERICA AND CARL ANDREWS, PERSONAL REPRESENTATIVE OF THE ESTATE OF LAVERNE ANDREWS, DECEASED (D.C. CIVIL NO. 82-0358) MELISSA ANDREWS, AS ADMINISTRATRIX OF THE ESTATE OF LEO ANDREWS AND EDWARD ANDREWS, AND IN HER OWN RIGHT; CARL SPIKER, ADMINISTRATOR OF THE ESTATE OF CARLA SPIKER; AND WALTER SMITH, ADMINISTRATOR OF THE ESTATE OF DAVID SMITH, APPELLANTS IN NO. 85-3678; CARL ANDREWS, JR., ADMINISTRATOR OF THE ESTATE OF LAVERNE ANDREWS, APPELLANT IN NO. 85-3698 V. UNITED STATES OF AMERICA (D.C. CIVIL NO. 82-0355); LUCILLE KARNS, PERSONAL REPRESENTATIVE OF THE ESTATE OF NANCY KAREN MCCLEESE, A/K/A NANCY KAREN MCCLEESE ANDREWS, DECEASED, APPELLANT IN NO. 85-3699 V. UNITED STATES OF AMERICA AND CARL ANDREWS, PERSONAL REPRESENTATIVE OF THE ESTATE OF LAVERNE ANDREWS, DECEASED (D.C. CIVIL NO. 82-0346)



On Appeal from the United States District Court For the Western District of Pennsylvania (Pittsburgh) (C.A. Nos. 82-0356; 82-0357; 82-0358; 82-0355; and 82-0346).

Before Seitz, Adams, and Stapleton, Circuit Judges

Author: Stapleton

STAPLETON, Circuit Judge.

I

On June 13, 1981, seven individuals, Leo Andrews, Laverne Andrews, Leo's wife Melissa, Leo's niece Carla Spiker, Laverne's wife Nancy, Leo's son Edward, and David Smith, launched two motorboats into the Ohio River, intending to engage in recreational boating. One boat, owned by Leo Andrews, was fourteen feet in length and had a 35 horsepower outboard engine. The other boat, owned by Laverne Andrews, was sixteen feet long and was equipped with a 50 horsepower outboard motor. At about 2:45 p.m., approximately one and half hours after being launched, both boats went over the crest of the Dashields Dam and overturned in the water below. Melissa Andrews was the sole survivor.

Melissa Andrews and the descendents' estates brought these suits against the United States, which owns the Dashields Lock and Dam. Plaintiffs' primary theory is that the Dashields Dam was a dangerous condition of which the United States failed to give adequate warning. In addition, Melissa Andrews and the estates of Nancy Andrews and Carla Spiker sued the estate of Laverne Andrews for his allegedly negligent operation of his boat.

The case was bifurcated. After a three-day bench trial on the question of liability, the court granted judgment for all defendants on the grounds that the United States had not been negligent and that the operators and all passengers were responsible for the tragedy. The plaintiffs have appealed.

Jurisdiction over the claims against the government in this is premised upon the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, which encompasses all marine torts alleged against the United States. Beeler v. United States, 338 F.2d 687 (3d Cir. 1964); see U.S. v. United Continental Tuna Corp., 425 U.S. 164, 176 & n.14, 47 L. Ed. 2d 653, 96 S. Ct. 1319 (1976). Jurisdiction over the passenger's claims against Laverne Andrews is conferred by 28 U.S.C. § 1333. Moragne v. States Marine Lines, 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970); foremost Insurance Co. v. Richardson, 457 U.S. 668, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982).

On appeal, although we have plenary review over the legal question of "the nature and extent of the duty of due care, . . . we are bound to sustain the factual findings unless they are clearly erroneous." Redhead v. U.S., 686 F.2d 178, 182 (3d Cir. 1982) (citation omitted) cert. denied 459 U.S. 1203, 75 L. Ed. 2d 435, 103 S. Ct. 1190 (1983); see Davidson Steamship Co. v. U.S., 205 U.S. 187, 190-91, 51 L. Ed. 764, 27 S. Ct. 480 (1907); Petitioner of M & J Tracy, Inc., 422 F.2d 929, 931 (3d Cir. 1969); Philadelphia Electric Co. v. Curtis Bay Towing Co., 390 F.2d 125, 127 (3d Cir. 1968).

Because the district court's conclusion that the United States was not negligent is not clearly erroneous and is in accordance with the applicable legal standards, we will affirm the judgments in is favor on the claims of he operators and the passengers. Because we sustain the district court's conclusion that the operators were negligent, but cannot uphold its conclusion that the passengers were negligent at or immediately prior to the accident, we will vacate the judgment in favor of Laverne Andrews were on the passengers' claims and remand those claims to the district court for further proceedings.

II

The following facts were stipulated to by the parties or were found by the district court and are not clearly erroneous. The United States built the Dashields Lock and Dam in the 1920s, and it is currently owned, operated and maintained by The Army Corps of Engineers ("ACOE"). The dam is a "fixed crest dam," and has no superstructure extending above the waters.

Although the ACOE has employed different warning mechanisms over the years, in 1981 the following devices were use at the dam.

a. A 225 foot long string of fifteen melons floats moored and angled upstream at a 45 degrees angle. The floats were 30 inches by 18 inches, white with two orange diamonds on each. In the center of each diamond was a cross.

b. A sign, 39 inches by 59 inches on an 8 foot pipe, on which were written the words "danger Dam" in 10 inch-high white letters on a red background and placed on the left river bank about 700 feet above the dam.

c. A sign, located on the right bank about 1000 feet above the dam, "Danger Dam." The sign was 30 inches by 48 inches with 10 inch-high ...


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