June 2014 - Parks & Recreation - 36

L AW R E V I E W

" sovereign immunity would protect
the Government from 'any' liability
associated with flood control. " Accordingly, the court held " the terms
'flood' and 'flood waters' apply to
all waters contained in or carried
through a federal flood-control project for the purposes of or related to
flood control, as well as to waters that
such projects cannot control. " Subsequently, in applying James, lower federal courts had generally held all the
waters in any federal flood-control
project were " flood waters, " whether

or not a particular lake was at flood
stage. In so doing, the issue was simply whether flood-control activities
were a substantial factor, increasing
the probability of a particular injury. If so, under James, flood-control
immunity would apply. (See: " Does
U.S. Flood Control Immunity Include Reservoir Recreation? " January 1989 Law Review in Parks & Recreation, http://cehdclass.gmu.edu/
jkozlows/lawarts/01JAN89.pdf).
In 2001, the U.S. Supreme Court
revisited James in the case of Central

Accordingly, the specific issue before the federal district

lawarts/05MAY11.pdf). In this particular instance, the Corps contended
that all of the waters in Lake Shelbyville above flood stage (i.e., 599.7
feet above sea level) were exclusively
flood waters being retained in the lake
exclusively for flood-control purposes. Moreover, on the day of Kibler's
accident, the Corps noted that waters
in Lake Shelbyville exceeded 609.5
feet, a level where flood waters would
come up to the top of the low-water primary boat ramp. Further, the
Corps claimed waters in Lake Shelbyville had been retained at levels exceeding flood stage and not released
through the dam to prevent flooding
downstream.

court was whether the slippery surface, which caused
Kibler's injuries, was a " direct result of flood waters
maintained in the lake for flood-control purposes. "
Green Co. v. United States, 531 U.S. 425,
121 S. Ct. 1005, 148 L. Ed. 2d 919.
In Central Green, the Supreme Court
significantly limited the scope and
applicability of immunity under section 702c of the Flood Control Act.
Specifically, in Central Green, the Supreme Court held that federal courts
" should consider the character of the
waters that caused the relevant damage. " As a result, flood-control immunity would no longer apply to " every
drop of water " in a flood-control
project at all times of the year. On the
contrary, Section 702c flood-control
immunity would only apply to injuries and damages directly attributable
to flood waters released or retained
for the purpose of flood-control activity. (See: " Flood Control Immunity in
Recreation Evaporating, " May 2011
Law Review in Parks & Recreation,
http://cehdclass.gmu.edu/jkozlows/

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Flood Waters?
Accordingly, the specific issue before
the federal district court was whether the slippery surface, which caused
Kibler's injuries, was a " direct result
of flood waters maintained in the
lake for flood-control purposes. " In
this particular instance, the federal
district court found flood waters had
" incrementally coated that portion of
the ramp with extremely slick natural
substances that remained slick and in
place even after the flood waters receded down the ramp. " Further, the
court found " flood water covering that
portion of the low-water boat ramp
causing it to become slick and slippery
was not mixed with any nonflood waters. " As a result, the court concluded
that the slippery surface that caused
Kibler's injury on the low-water boat
ramp was " directly caused by the
flood waters in Lake Shelbyville. "
In this instance, Kibler had argued
that flood-control immunity should
not apply because the probability of
his injury was not increased by the
Corps' flood-control activities when
compared with a natural lake devot-

June 2014 - Parks & Recreation

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