Carolyn L. Ducey, Lois M. Olson, Helen Gruegel v. United States

dissenting:

I respectfully dissent.

My sympathy for those lost in the flood and their survivors is not exceeded by the majority. We simply disagree on how many opportunities a plaintiff should have to prove negligence. I would not reverse the district court’s finding of fact regarding proximate cause and remand for another trial when the record and the argument on appeal leave no doubt about what happened following our initial remand.

The district court found as a fact that the flood was not foreseeable and that the United States had no duty to warn. The majority does not reverse that finding, but remands for consideration of whether the government issued warnings regarding the 100-year flood that was foreseeable, and if so, whether those warnings would have prevented the loss and injury from the heavier, unforeseeable flood. The time to explore that issue has now passed. Counsel elected not to present evidence regarding that issue at retrial. Instead, he chose to rely on dicta from the initial proceeding where the trial court indicated that the plaintiffs have proven simple negligence in the government’s failure to post flash flood warning signs or to develop a system to alert…

830 F.2d 1071 Carolyn L. DUCEY, Lois M. Olson, Helen Gruegel et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 85-2568. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 15, 1987. Decided Oct. 22, 1987. Arthur J. Jaffee, Pomona, Cal., for plaintiffs-appellants. Betsy Handler, Los Angeles, Cal., for defendant-appellee. Appeal from the United States District Court for the District of Nevada. Before SKOPIL, FARRIS and O'SCANNLAIN, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 This is a second appeal of three wrongful death actions under the Federal Tort Claims Act arising from a 1974 flash flood on federal land in southern Nevada. In 1981 the district court held that a Nevada statute, limiting the liability of property owners who allow their property to be used by the public for recreational purposes, protected the United States from liability and dismissed the actions. We reversed. Ducey v. United States, 713 F.2d 504 (9th Cir.1983). On remand, the district court found that the flood was not foreseeable and that defendant had no duty to warn decedents and again dismissed the actions. Representatives for decedents appeal…

This is a second appeal of three wrongful death actions under the Federal Tort Claims Act arising from a 1974 flash flood on federal land in southern Nevada. In 1981 the district court held that a Nevada statute, limiting the liability of property owners who allow their property to be used by the public for recreational purposes, protected the United States from liability and dismissed the actions. We reversed. Ducey v. United States, 713 F.2d 504 (9th Cir.1983). On remand, the district court found that the flood was not foreseeable and that defendant had no duty to warn decedents and again dismissed the actions. Representatives for decedents appeal claiming that (1) the district court’s 1981 decision precluded it from finding that the United States was not negligent; and (2) the district court based its conclusion that the United States was not negligent on clearly erroneous findings of fact.

1. Law of the Case.

Appellants’ first claim of preclusion based on law of the case need not detain us very long. The basis for the district court’s 1981 decision was the applicability of Nev.Rev.Stat. § 41.510; the court’s statement suggesting that plaintiffs had proven simple negligence…