Richard McCarthy v. United States

Richard McCarthy appeals the district court’s dismissal of his action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 (b) and 2671 et seq. McCarthy was severely injured in a diving accident that occurred at a lake owned and operated by the United States and the Army Corps of Engineers as part of a federal flood control project. The district court concluded the United States was immune from liability under the Flood Control Act of 1928, 33 U.S.C. § 702c. We affirm.

I.

Lewisville Lake is a reservoir in Denton County, Texas constructed by the Army Corps of Engineers “in the interest ... of flood control” under the River and Harbor Act, as amended, March 2, 1945, 33 U.S.C. § 603a (1982). Although the State of Texas owns the water of Lewisville Lake, the United States owns the underlying land. The dam, constructed in connection with the flood control project, is owned and operated by the United States. Lewisville Lake is a multi-purpose project lake that has flood control as one of its purposes. The Corps monitors its water level daily and adjusts discharge rates when necessary.

The Lake also contains seventeen discrete parks, one of which is…