June 2014 - Parks & Recreation - 34

L AW R E V I E W

the water level of the lake was at
594.45 feet above sea level.
As described below, the level of
the lake is legally quite significant in
determining the availability of immunity from liability for water-based
recreational injuries under the federal Flood Control Act. Specifically, when the water level in a federal
flood-control lake is below flood
stage, immunity under the Flood
Control Act would not apply.
Absent immunity under the Flood
Control Act, significant limited immunity might still be available to the
federal government under the discretionary function exception to the
Federal Tort Claims Act (FTCA) and
the state recreational use statute in
the jurisdiction where the injury oc-

the court held immunity under the
federal Flood Control Act applied.
Given the sheer size of the site
and volume of public recreational
use at Lake Shelbyville, water-related accidents and injuries are inevitable at this Corps lake site. Despite
the inevitability of such water-based
recreational injuries, liability is still
the exception rather than the rule. In
particular, as illustrated by the Kibler
opinion described herein, under the
Flood Control Act, the federal government is generally immune from
any liability for water-related recreational injuries when the injuries are
attributable to flood waters. In the
case of Lake Shelbyville, lake waters
in excess of 599.7 feet above sea level
would be considered flood waters.

When the water level in a federal flood-control lake is
below flood stage, immunity under the Flood Control
Act would not apply.

curred. However, in the Kibler case
described herein, given the applicability of immunity under the Flood
Control Act, it was unnecessary for
the federal district court to consider
such statutory alternatives. Moreover, even in the absence of any statutory immunity, a strong argument
could still be made that a recreational
boater had assumed the risk of slipping and falling when wading onto
a closed submerged boat ramp in a
lake. Similarly, in the case described
below, there was no need for the federal district court to consider any aspect of negligence liability, including
the assumption of risk defense, once

Parks & Recreation

Slip Sliding Away
In the case of Kibler v. United States
of America, 2014 U.S. Dist. LEXIS
35785 (3/18/2014), plaintiff Scott
Kibler was injured when he slipped
on a boat ramp owned, operated and
maintained by the defendant Army
Corps of Engineers at Lake Shelbyville in Moultrie County, Illinois.
On the afternoon of July 19, 2009,
Kibler drove his vehicle, trailer and
boat, along with his wife and five minors, to the high-water boat ramp at the
Forrest " Bo " Wood Recreation Area at
Lake Shelbyville. The Bo Wood Recreation Area did not have a boat dock,
and Kibler waited in line for about

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30 minutes to launch his boat on the
high-water boat ramp. At that time, no
one was using the nearby low-water
boat ramp to launch boats, because it
was under water. From his position on
the high-water boat ramp, Kibler could
see that the water came all the way up
the primary low-water boat ramp.
At the time of Kibler's injury, the
lower boat ramp had been closed
since May 17, 2009, after it became
submerged by flood water being retained in Lake Shelbyville. With the
primary low-water boat ramp submerged, it became necessary for the
Corps to open the high-water boat
ramp to the public. At the time, flood
waters in the lake were 11.82 feet
over the flood-water benchmark of
599.7 feet above sea level.
After launching his boat from the
high-water boat ramp, Kibler intended to wade through the water
on the low-water boat ramp before
swimming out to his boat. In so doing, Kibler slipped and fell on the
submerged low-water boat ramp, apparently striking his head. Waiting in
the boat, Kibler's wife saw him lying
facedown on the submerged ramp
in three to four feet of water. Several persons tried to come to Kibler's
rescue, but they were seen falling and
sliding before hitting the water. Eventually, two individuals were able to
get down on all fours, sliding back on
all fours and crawling to get Kibler.
Kibler was eventually rescued and
pulled out of the water.
If the flood waters had not been
in Lake Shelbyville on the day of
Kibler's injury, the concrete low-water primary boat ramp would have
been dry and there would not have
been any slick materials on the portion of the ramp where Kibler fell.
At flood stage, the water had incrementally coated the lower boat ramp

June 2014 - Parks & Recreation

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