1 33 U.S.C. § 702c. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-10685

_____________________

JANICE LYNN KENNEDY,

Plaintiff-Appellant,

versus

TEXAS UTILITIES, a Texas company;

CITY OF GRAND PRAIRIE, TEXAS, and

UNITED STATES OF AMERICA,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court for

the Northern District of Texas

_______________________________________________________ June 21, 1999

Before REAVLEY, JOLLY and EMILIO M. GARZA, Circuit Judges.

REAVLEY, Circuit Judge:

In this personal injury suit, the district court granted

summary judgment in favor of the United States, finding it immune

from suit under the immunity provision of the Flood Control Act of

1928, 1 and remanded the remaining state law claims to state court.

We reverse.

BACKGROUND

Plaintiff Janice Kennedy was injured at Lynn Creek Park when2 Pub. L. No. 89-298, § 301, 79 Stat. 1074, 1093-97 (1965);

see also id. § 315, 79 Stat. at 1101 (specifying that Title III of

the Act (§§ 301-315) may be cited as “River and Harbor Act of

1965”).

3 S ee 79 Stat. at 1095 (funding for Trinity River and

tributaries).

2 she stepped on a live electrical cable on or about August 28, 1993.

The park is w ithin the city limits of defendant City of Grand

Prairie, Texas (City). The land on which the park is located was

purchased by the United States “for navigation, flood control and

other purposes” under the River and Harbor Act of 1965, 2 for the

construction of Joe Pool Lake, also known as Lakeview Lake (the

lake). The statute specified that Lakeview project would comply

with the recommendations of a March 14, 1963 letter prepared by the

Board of Engineers for Rivers and Harbors of the U.S. Army Corps of

Engineers (Corps). 3 The letter describes the Lakeview project as

a “multiple-purpose” reservoir, and describes those purposes as

including flood control, water storage, and recreation.

Hence, the Corps envisioned recreational development from the

outset of the Lakeview project. A 1976 contract between the United

States and defendant Trinity River Authority (TRA) for recreational

development of the lake recites that the United States “agrees to

design, construct, and operate the Project to provide for optimum

enhancement of general recreation consistent with the other

authorized Project purposes.” Under this contract the United

States and the TRA, an agency of the State of Texas, would share3

the costs of recreational development, and the United States agreed

to lease the property comprising the Lakeview project to the TRA.

The contrac t provides that the TRA “shall be responsible for

o peration, maintenance, and replacement, without cost to the

[United States], of all facilities developed to support Project

recreation opportunities.” A separate lease agreement between the

United States and the TRA provides that the TRA as lessee “agrees

to administer the land and water area s included in the lease for

re creation purposes and to bear the costs of operation,

maintenance, and replacement of all facilities and improvements on

the premises at the commencement of this lease or added during its

term.”

The United States also entered into a contract with the TRA

for water storage space. Under this contract, the TRA was granted

an undivided 100 percent interest of the total storage space of the

lake below an elevation of 522 feet. The TRA agreed to repay the

United States an amount representing that portion of the total

project cost allocated to the water storage right acquired by the

TRA.

In addition to the statutory mandate to construct the lake for

flood c ontrol, the record shows that the lake was built and its

water level regulated for flood control purposes, in conjunction

with other flood control facilities in the Trinity River basin.

The Corps monitors the water level in the lake daily as part of its

flood control operations. The lake is designed and operated to4

store water for conservation and water supply up to an elevation of

522 feet. The Corps refers to the lake as a conservation storage

pool up to this elevation. On the date of Kennedy’s injury the

lake elevation was about 521 feet. The lake is also designed to

store water up to an elevation of 536 feet for flood control

purposes during p eriods of above average inflows, and frequently

stores water at an elevation above 522 feet. The Corps designates

the lake as a flood storage pool at elevations between 522 and 536

feet. The United States offered evidence that the Corps originally

purchased land up to an elevation of 541 feet for flood control

purposes. The United States thus showed that the flood control

function of the project determined the boundaries of the property

it purchased for the Lakeview project. It also showed that the

highest recorded elevation of the lake is 533 feet, and that the

electrical line which injured Kennedy is sometimes submerged by the

lake. Hence, the evidence indicates that Kennedy was injured on

land purchased by the United States for flood control, water

storage, and recreational purposes, under lease to the TRA for

recreational purposes, and which is sometimes cover ed with flood

waters.

The injury occurred on a sandy beach area near the lake.

Kennedy had entered the park as a paid visitor. In interrogatory

answers she attested that she visited the park “for the purpose of

recreational swimming with friends,” and she later testified in her

deposition that “we went out there just to, you know, try to get a4 28 U.S.C. § 2671-80.

5 The suit was removable because a federal cause of action

was asserted, see 28 U.S.C. § 1441(a), and because the United

States was a defendant, see 28 U.S.C. § 1346(b)(1). Although

Kennedy originally asserted her federal claim against the Corps,

the United States is the proper and exclusive defendant to this

claim, and Kennedy does not argue otherwise. S ee 18 U.S.C. § 2679;

Atorie Air, Inc. v. FAA

, 94 2 F.2d 954, 957 (5th Cir. 1991) (“All

suits brought under the FTCA must be brought against the United

States.”). We note that Kennedy also filed a separate federal suit

against the Corps, and that this suit was consolidated with the

removed state court action.

5 tan and hang out at the lake.” She stepped on the electrical line

after either going for a swim, or wading and submerging herself in

the water. Kennedy offered evidence that the line was part of an

electrical system at the park that had been installed after

discussions among the City, defendant Texas Utilities Electric Co.

(Texas Utilities), and the TRA, regarding the need for a power

source at the park for recreational purposes such as concerts. The

evidence is undisputed that the line was not installed by the

United States, and was not used in connection with flood control.

The line was placed in the park after the park property was leased

to the TRA.

Kennedy brought suit in state court against the City, the TRA,

and Texas Utilities, asserting state law negligence cla ims. She

amended her state court petition to add a claim against the United

States under the Federal Tort Claims Act (FTCA). 4 The United

States removed the case to federal court. 5 In her last amended

complaint, Kennedy alleged several theories of premises and6 Kennedy alleged that the United States “as the owner and

landlord of the premises, retained control of the premises to such

an ex tent that it owes the duty to Plaintiff owed by a private

owner of land to an invitee,” and that the United States “breached

this duty and this br each proximately caused injuries to

Plaintiff;” alternativ e ly, that the United States “engaged in

inspections of the premises

. . . and exercised dominion and

control over the property by requiring repairs and alteration,” and

was therefore liable to Kennedy “for her injuries proximately

caused by ‘USA’s’ negligent performance of its undertaking to

inspect th e premises;” and alternatively that the United States

“negligently created the dangerous condition that proximately

caused Plaintiff’s injuries by limiting ‘TRA’s’ ability to safely

install or approve the proper installation of electricity along or

near the shoreline.”

6 negligence liability against the United States. 6 The United States

filed a motion to dismiss or in the alternative for summary

judgment, asserting immunity from suit under the Flood Control Act

and other grounds for summary judgment. The district court granted

summary judgment for the United States on grounds of immunity.

Thereafter, the City of Grand Prairie filed a motion to remand the

remaining state law claims to state court. The district court

granted this motion.

DISCUSSION

A. The Flood Control Act

Kennedy contends that the district court erred in ruling that

the United States is immune from suit under the Flood Control Act.

We agree for the reason that the summary judgment evidence

established as a matter of law that the Uni ted States is not

immune.

“[T]he starting point for interpret ing a statute is the7 C onsumer Prod. Safety Comm’n v. GTE Sylvania, Inc. , 447

U.S. 102, 108 (1980)

8 J ohnson v. Sawyer

, 120 F.3d 1307, 1319 (5th Cir. 199 7 )

(internal quotations omitted).

9 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

Partnership

, 507 U.S. 380, 388 (1993) (q uoting P errin v. United

States , 444 U.S. 37, 42 (1979)).

7 language of the statute itsel f.” 7 We have explained that “we

follow the plain meaning of a statute unless it would lead to a

result so bizarre that Congress could not have intended it.” 8

Absent congressional direction to the contrary, words in statutes

are to be construed according to “their ordinary, conte mporary,

common meaning[s].” 9

The immunity provision of the Flood Control Act (hereinafter

Act), 33 U.S.C. § 702c, states: “No liability of any kind shall

attach to or rest upon the United States for any damage from or by

floods or flood waters at any place.” The plain wording of the

statute is confined to damages sustained “from or by floods or

flood waters at any place.” Kennedy was injured on dry land

a djacent to a lake constructed for flood control and ot her

purposes. While the term “flood waters” may be ambiguous and thus

subject to differing interpretations, the ordinar y and common

meaning of an injury or damages sustained “from or by floods or

flood waters” does not, in our view, extend to an injury occurring

on land apart from water and as the result of a use of the land

itself.10 478 U.S. 597 (1986).

11 53 F.3d 81 (5th Cir. 1995).

12 478 U.S. at 599.

13 53 F.3d at 85 n.13 (quoting 16 U.S.C. § 460d).

8 The parties properly fo cus much of their argument on two

cases, the Supreme Court’s decision in United States v. James

, 10 and

our decision in Boudreau v. United States

. 11 We cannot agree with

Kennedy that § 702c immunity is limited to federal water projects

devoted exclusively to flood control, in contrast to a multipurpose project such as Joe Pool lake. In James , the Court found

that § 702c immunity applied even though one of the reservoir

projects in i ssue was “used for fishing, swimming, boating, and

waterskiing,” and the government promoted recreational use. 12 In

Boudreau

, we noted that federal law authorizes the Corps to

“construct, maintain, and operate public park and recreational

facilities” at flood control projects. 13 In both cases the injuries

were sustained by persons who were on the water for recreational

purposes. We agree with the Ninth Circuit that § 702c immunity is

not rendered inapplicable “by the multi-purpose nature of the flood

control facility

. . . . It is clear the immunity provision . . .

can apply even though a federal project has multiple purposes and

is not i ntended exclusively for flood control. J ames itself

involved injury to recreational users of a reservoir that also had1 4 McC arthy v. United States , 850 F.2d 558, 562 (9th Cir.

1988). S ee also Reese v. South Florida Water Management Dist.

, 59

F.3d 1128, 1130 (11th Cir. 1995) (holding that § 702c immunity

applies to Lake Okeechobee, a “multi-purpose federal flood control

project”); Zavadil v. United States

, 908 F.2d 334, 335-36 (8th Cir.

1990) (holding that § 702c applied because one of the purposes of

the federal water project in issue was flood control and

navigation).

15 478 U.S. at 599.

16 Id . at 599-600.

17 Id . at 604.

9 federal flood control use.” 14

Nevertheless, neither James nor Boudreau

, in o ur view,

supports governmental immunity on these facts. In J ames

, the Court

ruled that the immunity provision covered two cases “where

recreational users of reservoirs were swept through retaining

structures when those structures were opened to release waters in

order to control flooding.” 15 The reservoirs were federal flood

control projects, and the accidents occurred when the Corps

released water from the reservoirs. The accident victims drowned

or were injured when they were pulled through drainage structures.

At the time the reservoirs were at flood stage, and the release of

the waters was carr ied out by the Corps in the course of flood

control operations. 16 Finding it “difficult to imagine broader

language” than that found in § 702c, the Court he ld that the

language of the statute on its face covered the accidents in

i ssue. 17 The Court found it “clear from § 702c’s plain language18 Id . at 605.

19 Id . at 608.

20 Id . at 610.

10 that the terms ‘flood’ and ‘flood waters’ apply to all waters

contained in or carried through a federal flood control project for

purposes of or related to flood control, as well as to waters that

such projects cannot control.” 18 It found congressional intent to

extend immunity “to protect the Governm ent from “‘any’ liability

associated with flood control.” 19 In response to plaintiffs’

argument that the injuries were t he result of “alleged

mismanagement of recreational activities wholly unrelated to flood

control,” the Court concluded that “the manner in which to convey

warnings, including the negligent failure to do so, is part of the

‘management’ of a flood control project,” and further that “the

release of the waters

. . . was clearly related to flood control.” 20

James

, of course, rests on facts very different from those

presented in the pending case. The injured parties in James were

in the water, and suffered injuries when the Corps released flood

waters as part of its flood control function. In our view, nothing

in the language or reasoning of James compels us to hold that the

injury here, which occurred on dry land and was due to a condition

unrelated to flood control, is nevertheless an injury “from or by

floods or flood waters.” In James , the Court held that the terms21 Id . at 605 (emphasis added).

22 Id . at 608, 610.

23 53 F.3d at 82.

11 “flood” and “flood waters” “apply to all waters contained in or

carried through a federal flood control project for purposes of or

related to flood cont rol

. ” 21 By this reasoning all the waters in

Joe Pool Lake might well constitute “flood waters,” whether or not

the lake is at flood stage. It does not follow that Kennedy’s

injuries were “from or by” such flo od waters. Her injuries were

caused by an electrical cable which was not installed or maintained

by the United States, and which served no flood control purpose

whatsoever. The alleged liability is not, in our view, “associated

with flood control.” or “clearly related to flood control.” 22

We likewis e think that our B oudreau decision is factually

distinguishable. In that case, the plaintiff was boating on a

federal flood control reservoir. He requested assistance from the

C oast Guard Auxiliary after experiencing engine trouble. He

claim ed that he was injured due to instructions from the Coast

Guard Auxiliary to lift anchor. 23 Quoting language from J ames that

the immunity provision protects the government from “‘any’

liability associated with flood control,” and that “the terms

‘flood’ and ‘flood waters’ apply to all waters contained in or

carried through a federal flood control project for purposes of or24 Id . at 83 & n.5 (quoting James , 478 U.S. at 605, 608)).

25 Id . at 84.

26 Id . at 85-86 & n.15.

12 related to flood control,” 2 4 we held that “there is a sufficien t

a ssociation between the Coast Guard Auxiliary’s activities and

flood control” 25 for the immunity provision to apply. Specifically,

we noted that “the creation of the flood control project resulted

in the [Corps] being responsible for providing water safety patrols

at the lake,” a responsibility contractually assigned to the Coast

Guard Auxiliary; that the injury was related to “the management of

flood waters” because “the injury resulted from a boating accident

on flood control waters involving the Government’s patrol of those

waters;” and that “a boating accident such as this could only occur

on water.” 26 This reasoning, and the underlying facts, distinguish

the pending case from Boudreau . In the pending case, there is no

corresponding association with flood control. In B oudreau

, the

alleged negligent conduct of the government, and the accident

itself, occurred on flood control waters. The electrical cable

that injured Kennedy had no association with flood control, and the

federal governme nt’s alleged malfeasance or nonfeasance bore no

relation to flood control.

In this case, the only relation to “flood waters” is that

Kennedy would not have gone to the park b ut for the existence of

the lake, and that her injury occurred on a patch of land that is27 901 F.2d 79 (7th Cir. 1990).

28 53 F.3d at 83-85 & nn. 6,8.

13 within the flood stage pool. This alleged nexus with flood waters

is, in our view, too attenuated to hold that Kennedy suffered

“damage from or by” such waters under § 702c.

The United States has cited no authority, nor can we locate

any, for the proposition that an injury occurring on dry land, as

a result of a con dition on such land that is wholly unrelated to

flood control, falls within the ambit of § 702c. There is

authority to the contrary. In F ryman v. United States

, 27 discussed

in Boudreau

, 28 the Seventh Circuit held that th e government was

immune from suit by a plaintiff who was injured when he dived into

a lake cre ated for flood control purposes. In dicta, the court

rejected the notion that immunity s hould extend to the

circumstances present in our cas e – an injury on dry land and

unrelated to the management of flood waters:

James was so broadly written tha t it cannot be applied

literally. The “management of a flood control project”

includes building roads to reach the beaches and hiring

staff to run the project. If the Corps of Engineers

should allow a walrus-sized pothole to swallow tourists’

cars on the way to the beach, or if a tree-trimmer’s car

should careen through some picnickers, these injuries

would be “associated with” flood control. They would

occur within the boundaries of the project, and but for

the effor t to curtail flooding the injuries would not

have happened. Yet they would have nothing to do with

managemen t of flood waters, and it is hard to conceive

that they are “damage from or by floods or flood waters”29 Id . at 81.

30 827 F. Supp. 378 (N.D. W. Va. 1992).

31 Id . at 379-80.

32 Id . at 381.

14 within the scope of § 702c. 29

In Cox v. United States

, 30 the plaintiff was injured when she fell

from a rope swing, hitting her head on dry land. The swing was

located in a recreational area maintained by the Corps, adjacent to

a reservoir created for flood control purposes. The plaintiff had

gone to the lake to swim. 31 The court concluded that § 702c

immunity was not available to the government, essentially agreeing

with the analysis from Fryman quoted above:

It is interesting to note that the Fryman court chose to

illustrate situations where immunity would not apply to

citing hypothetical scenarios wherein accidents occurred

on land near, but not in, the water of a flood control

project. This Court believes that F ryman properly

defines the outer limits of Section 702c immunity. 32

Finally, we note that unambiguously extending immunity to the

facts presented here, either at the time of passage of the Act or

in later years, would have been a fairly simple exercise of

legislative drafting. Congress could have extended immunity to all

injuries occurring on property purchased for flood control

purposes, regardless of the relation of the injury to flood control

activities, and regardless of whether the injury occurred in the

water. Having chosen instead to limit immunity to “damage from or33 28 U.S.C. § 1367(c)(1) & (c)(3).

15 by floods or flood waters at any place,” we are persuaded that the

Act’s immunity provision does not extend to this case.

B. Remand of State Law Claims

After dismissing the federal claim against the United States,

the district court granted the City’s motion to remand the

remaining state law claims to state court. Kennedy complains that

the district court erred in granting this motion.

The district court remanded the case under 28 U.S.C. §

1367(c). This statute provides that a district court may decline

to exercise supplemental jurisdiction over a state law claim if

“the claim raises a novel or complex issue of State law,” or “the

district court has dismissed all claims over which it has original

jurisdiction. 33 The district court remanded for both reasons,

explaining:

The Court, having dismissed all claims against the United

States of America over which the Court possessed original

jurisdiction, is of the opinion tha t remand of the

remaining pendent [claims] is both authorized and proper.

The court dismissed all claims over which it had original

jurisd iction and the remaining claims are claims which

exist ed in the Plaintiff’s original complaint in state

court. The Court determines that the state interests in

litigating the claims, which raise a novel or complex

issue of state law, compel the Court to remand the

remaining claims to be determined in state court.

We are doubtful that the court would have remanded the

remaining state law claims but for its summary judgment dismissing

the federal claim against the United States, since a partial remand3 4 Doddy v. Oxy USA, Inc.

, 101 F.3d 448, 4 55 n.3 (5th Cir.

1996); Thomas v. LTV Corp. , 39 F.3d 611, 615-16 (5th Cir. 1994).

35 Doddy , 101 F.3d at 455.

3 6 Esmark Apparel, Inc. v. James

, 10 F.3d 1156, 1163 (5th Cir.

1994).

37 Koon v. United States , 518 U.S. 81, 100 (1996).

16 of state claims while the federal claim was still viable would have

necessitated prosecution of Kennedy’s cla ims in two courts, in a

case where issues of allocation of fault, contribution and/or

indemnity among the defendants appear to favor a resolution of the

claims in a single proceeding. Further, the suit was remanded

after over two years of litigation in federal court, which included

extensive discovery and the filing of numerous dispositive motions.

We may review discretionary remands under § 1367. 34 Review is

for abuse of discretion. 35 “A district court abuses its discretion

if it bases its decision on an erro neous view of the law or on a

clearly erroneous assessment of the evidence.” 36 “A district court

by definition abuses its discretion when it makes an error of

la w.” 3 7 Because we have held that the district court erroneously

granted summary judgment for the United Stat es, and because its

decision to remand the state law claims was based at least in part

on this summary judgment, we conclude that the court erred in

remanding the state law claims.

CONCLUSION17

For the foregoing reasons, the summary judgment i n favor of

the United States and the order remanding the remaining state law

claims are reversed, and we remand this cause to the district court

for further proceedings.

REVERSED and REMANDED.