                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
                      UNITED STATES COURT OF APPEALS
                                                                                   July 23, 2007
                               For the Fifth Circuit
                          ___________________________
                                                                              Charles R. Fulbruge III
                                                                                      Clerk
                                    No. 06-30529
                            ___________________________

           MARSHALL WAYNE POINDEXTER, Individually and on behalf of
           Thomas Wayne Poindexter; BRANDON WAYNE POINDEXTER,
               Individually and on behalf of Thomas Wayne Poindexter;
                   DEBORAH M. POINDEXTER, Individually and
                       on behalf of Thomas Wayne Poindexter,
                                                                      Plaintiffs-Appellants,

                                        VERSUS

                          UNITED STATES OF AMERICA,
                     on behalf of the U.S. Army Corps of Engineers,
                                                                           Defendant-Appellee,

                            ___________________________

         DEBORAH M. POINDEXTER; MARSHALL WAYNE POINDEXTER;
                     BRANDON WAYNE POINDEXTER,
                                                    Plaintiffs-Appellants,

                                        VERSUS

                         BOARD OF COMMISSIONERS OF
                       THE TENSAS BASIN LEVEE DISTRICT,
                                                                           Defendant-Appellee



                       Appeal from the United States District Court
                  for the Western District of Louisiana, Monroe Division
                                      3:04-CV-1158



Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*

       Plaintiffs Marshall, Brandon and Deborah Poindexter appeal the judgment of the district

court dismissing their suit against the United States Army Corps of Engineers and the Tensas

Basin Levee District relating to the drowning death of Thomas Wayne Poindexter at a weir in Big

Creek. The district court dismissed their case on summary judgment after concluding that the

defendants did not have notice of the particular risk of entrapment associated with the weir at

which the decedent was drowned. Because we conclude that the district court’s view of the

scope of the defendants’ duty associated with the known risks of the weir was too narrow, we

reverse and remand.

                                                 I.

       The plaintiffs in this case are the surviving sons and spouse of Thomas Wayne Poindexter.

They brought a wrongful death and survival action following his drowning death in Big Creek on

May 11, 2003.

       The drowning occurred in an area of Big Creek where the water level is controlled by a

series of weirs. The weirs consist of a wall of corrugated steel running from one bank of the

creek to the other and into the creek bed. On the upstream side of the wall is a layer of riprap or

rocks that add structural support to the wall and reduce erosion. On the downstream side of the

wall is a horizontal steel brace, known as a wale, that runs the length of the weir approximately 13

inches below the top edge. Multiple openings are present between the wale and the wall along the

length of the weir.



       *
          Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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       Poindexter was at Big Creek to go jug fishing with his brother-in-law, Oliver Douglas. It

was after midnight when they left the boat dock to retrieve jugs that had been set out by

Poindexter and his wife earlier that day. The water was calm but a significant rainfall had

occurred the night before and there was a strong current of approximately 10 to 14 inches of

water flowing over the weir that night.

       One of the jugs they wanted to retrieve appeared to be on or near the weir. As they

approached it, the boat propeller became lodged in the rocks of the riprap. Poindexter and

Douglas exited the boat to try to walk the boat to the bank. According to the magistrate’s report

at this point “the boat broke free and went over the weir, Thomas [Poindexter] slipped, was

knocked over by the boat, and/or lost his balance and fell, disappearing from sight over the edge

of the weir.” The plaintiff alleges that as Poindexter and Douglas exited the boat, “they

encountered the swift current around the weir, which caused Thomas [Poindexter] to either slip

or lose his balance.” After Poindexter went over the weir, he became entangled in a corrugated

opening of the weir, broke his leg and was trapped under the water, causing his death by

drowning.

       The plaintiffs originally sued the Tensas Basin Levee District in state court. The Levee

District filed a Third Party Demand against the United States (Army Corps of Engineers), which

removed the case to federal court. Plaintiffs allege that the defendants were negligent in their

ownership and maintenance of the weir and that such negligence caused Poindexter’s death by

drowning. Plaintiffs also asserted that the defendants knew of the foreseeable hazards presented

by the weirs in Big Creek, specifically with respect to the high current and turbulence of the water

at and near the weir structure.


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       It is undisputed that both defendants were aware that under the conditions that existed on

the night of Poindexter’s death, dangers were presented by the weir structure which could cause

strong current, turbulence, undertow and risk of drowning. The United States Army Corps of

Engineers had previously placed and maintained signs on cables across the creek, warning boaters

and other users of these dangers. The signs were abandoned by the government several years

before the accident, as the Corps claimed that the Levee District should assume responsibility for

the signs. No signs were in place on the date of the accident.

       The defendants moved for summary judgment on several grounds. The Report and

Recommendation (“R&R”) of the Magistrate Judge concluded that a dispute of material fact

existed between the two defendants regarding the ownership, maintenance and repair

responsibility for the weirs. Accordingly summary judgment on that issue was denied.

       The defendants also moved for summary judgment on the issue of their liability based on

lack of duty, no breach of duty, and lack of actual or constructive notice of any defect. The R&R

concluded that Poindexter’s death was caused by a “freak accident.” The report concluded that

the primary risk associated with the weir is being swept over and drowned in the undertow or

turbulent waters caused by the weir, but there is no known risk of falling off the front of the weir

and becoming entrapped in the wale. The report notes that previous signage at the weir

addressed hazardous undertow and turbulent water, not the danger of entrapment in the weir

itself. Further there was no record of prior accidents or complaints that would have alerted the

defendants to the risk. Accordingly, the report recommended that claims against the defendants

under Louisiana Civil Code Article 2317 or 2317.1 be dismissed. The district court adopted the

Magistrate Judge’s report and dismissed the claims.


                                                  4
       This appeal followed.

                                                  II.

       We review de novo the district court’s ruling on summary judgment applying the same

standard as the district court. After examining the record, we ask whether there is a genuine issue

of material fact and whether the moving party is entitled to judgment as a matter of law. Ford

Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001).

                                                 III.

       In this case, the plaintiffs allege that the weir constituted an unreasonably hazardous

condition under the Louisiana law, specifically Louisiana Civil Code articles 2315, 2317 and

2317.1. Under those articles, in order to establish a negligence claim, the plaintiff must prove that

the structure was in the defendant’s custody, that it contained a defect that presented an

unreasonable risk of harm to others, that the defective condition caused the damage, and that the

defendant knew or should have known of the defect. Brown v. Williams, 850 So. 2d 1116, 1120

(La. App. 2d Cir. 2003).

       The district court dismissed the plaintiffs’ action on the grounds that the defendants were

not nor should they have been aware of the particular risk of falling off the front of the weir in

such a way as to become entrapped in the wale. Noting that “[t]he primary risk encountered by

persons in connection with the weir is the danger of being swept over the weir and drowned by

the undertow or turbulent waters created thereby,” it distinguished the known risk of drowning

from the unknown and unforeseeable risk of being trapped in the weir.

       Based on our review of the record and Louisiana law, we conclude that this distinction

was drawn too finely. First, as the R&R acknowledged, it was reasonably foreseeable that, given


                                                  5
the overflow design of the weir, a risk existed that a person could be swept over the weir by

strong or turbulent currents and sustain injury, including drowning. The defendants were aware

of this risk. The U.S. Army Corps of Engineers sent a letter to the Levee District informing them

of the potential injuries that could be sustained by individuals from the “possible hazard” of the

weirs. Further, the warning signs originally posted by the Corps of Engineers indicate knowledge

that the weirs posed a hazard to individuals using the creek.

       Second, it is inconsistent with Louisiana law to conclude that when a particular hazard

exists (risk of person being swept over weir by current) and an injury is foreseeable (drowning),

the chain of causation is broken when the foreseeable injury happens in an unforeseeable manner

(through entrapment). The Louisiana Supreme Court has stated that “a risk is not excluded from

the scope of the duty simply because it is individually unforeseeable. A particular unforeseeable

risk may be included if the injury is easily associated with the rule relied upon and with other risks

of the same type that are foreseeable and clearly within the ambit of protection.” Forest v.

Louisiana, 493 So.2d 563, 570 (La. 1986), citing Carter v. City Parish Gov’t of East Baton

Rouge, 423 So.2d 1080 (La. 1982).

       In Forest, the court found that the Department of Transportation breached its duty to

properly warn motorists of the abrupt and unexpected road closure and detour. A bicyclist who

was lifting the barricade to ride the unopened section of the road after midnight was struck by a

motorist and killed as he stood in front of an unmarked highway barricade. The court held that

although the highway department might not foresee a vehicle striking a bicyclist or pedestrian at

this location, the death was easily associated with the Department’s duty to properly and safely

sign the barricade and is like the risks of the same type that are clearly within the ambit of


                                                  6
protection.

        In Carter, a child drowned in a flooded area on a highway after exiting the vehicle in

which she had been riding. The driver who was intoxicated drove around a highway barricade

into a closed section of the road into flood waters. The court found that the risk that the decedent

would exit a vehicle stranded in flood waters and choose the wrong direction to try to escape or

be led the wrong direction by the driver was within the scope of duties of a driver in the operation

of his vehicle.

        These cases are in accord with the negligence law of most states - that it is not necessary

that a custodian might or should have foreseen the likelihood of the particular injury or harm, the

extent of the harm, or the manner in which it occurred; instead, it is only necessary that the

custodian should have anticipated that some injury or harm might result from the identified risk.

100 A.L.R. 2d 942; Ortega v. Texas-New Mexico Ry.Co., 370 P.2d 201 (N.M. 1962); Hopson v.

Gulf Oil Corp., 237 S.W.2d 352 (Tex. 1951).

        As applied to this case, the unknown risk of becoming entrapped in the weir after

encountering the known risk of being swept over the weir by turbulent water is within the scope

of the defendants’ duty. Mr. Poindexter’s injury and drowning is easily associated with the

foreseeable risk. In other words, if the defendants had a duty to protect recreational users of Big

Creek from the known dangers of the weir - being swept over the weir by strong or turbulent

currents and drowning - then the risk that a person swept over the weir would drown by

entrapment is covered by that same duty. Summary judgment is inappropriate in this case on the

grounds relied on by the district court.




                                                  7
                                              IV.

       For the foregoing reasons, we reverse the judgment of the district court and remand this

case for further proceedings.

REVERSED and REMANDED.




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