ELR Citation: ELR 20358
No(s). 439-70 (10th Cir. Jul 6, 1971)

Plaintiff, whose marina was damaged by the drawdown of the water level of Tuttle Creek Reservoir in Kansas by the Corps of Engineers, cannot recover against the United States under the Federal Tort Claims Act because Act exempts discretionary function performed by the government or its agents, "whether or not the discretion involved be abused," and here decision to lower the level of the reservoir was discretionary with the Corps. Failure to warn plaintiff of drawdown constituted, at most, an abuse of discretion by the Corps for which no recovery is possible, rather than an independent act of negligence.

Counsel for Spillway Marina, Inc.:
Paul L. Aylward
Ron Svaty
Miner & Aylward
P.O. Box 83
Ellsworth, KS 67439
(913) 472-3002

Counsel for U.S.:
Raymond D. Battocchi
Morton Hollander
Civil Division, Appellant Section
Department of Justice
Washington, DC 20253
(202) 739-3159