Off Beat: Up creek without a lawsuit

Beware the treacherous Yuba River. Not only is it dangerous, but don't expect any help from a federal judge if you sue the U.S. Army Corps of Engineers.

The survivors of Joseph Bailey found that out the hard way last month when their wrongful death suit against the government was tossed out.

Chalk up a win for the Army Corps.

Four years ago, Bailey took his two sons rafting down the Yuba. They didn't know that Daugerre Point Dam awaited them. The boys were rescued by bystanders. Dad died.

About a month before the accident, Army Corps workers placed big warning signs about 1,500 feet upstream from the dam. Unfortunately, high flows in the river washed out the signage before the Baileys took their fateful journey.

On May 25, 2005, four days before the fatal raft trip, Army Corps employees tried to assess the sign situation, "but were unable to reach the signs due to the then-existing dangerous water conditions," U.S. District Judge Morrison England Jr. wrote in his decision.

On May 30, the day after Bailey died, the signs were replaced.

So was the Army Corps at fault for Bailey's death? The federal judge said no, citing the corps' "Sign Standards Manual," (SSM) which notes the importance of replacing missing signs in a timely manner, while cautioning that "(p)ersonnel safety is a prime concern in performing sign maintenance."

According to the judge, "The crux of the instant dispute turns on whether the SSM imposed a mandatory duty upon the United States to replace the missing warning signs prior to Mr. Bailey's death or whether, instead, the SSM allowed Army Corps personnel to exercise some level of discretion that was grounded in social, economic, or political policy."

England continued, "Though no signs were in place at the time of the accident that caused Mr. Bailey's death, the absence of those signs was not due to a decision that the signs were unnecessary, but was due instead to a decision as to the timeliness of sign maintenance or replacement."In this case, he wrote, "The government was required to evaluate the availability of personnel capable of navigating moving water to place heavy signs in a turbulent river, while simultaneously ensuring that the safety of United States' employees remained a 'prime concern.'"

The judge concluded: "Army Corps employees were required to make a judgment call as to whether the considerations of public safety outweighed ... risks to their own safety or the expenditure of resources on signs that might once more wash away. While one might not agree with the decision ultimately reached, the decision-making process itself is protected, and the government is immune from suit."

So keep that in mind the next time you're rafting down the Yuba.

Harold Kruger is a veteran reporter and copy editor for the Appeal-Democrat. His column, "Off Beat," appears Sundays. He can be reached at 749-4717, or via e-mail at hkruger@appealdemocrat.com