## Facts

- Eric A. Lindgren was injured on September 28, 1974, while water-skiing on the Colorado River south of Parker Dam when his ski struck the river bottom.
- The Bureau of Reclamation operated Parker Dam and allegedly altered river flow, water level, and riverbed configuration, creating a hazardous condition for recreational users.
- The Lindgrens alleged the government knew of both recreational use and the resulting hazards but failed to provide warnings.
- The plaintiffs sued the United States under the Federal Tort Claims Act (FTCA) seeking damages for personal injury, negligent infliction of emotional distress, and loss of consortium.
- The district court granted summary judgment to the United States under the FTCA discretionary-function exception, reasoning that because dam operations were discretionary, the failure to warn was also discretionary.
- On appeal, plaintiffs did not dispute that dam operations were discretionary; they challenged only the application of the discretionary-function exception to the alleged failure to warn.

## Issues

1. Whether the government’s alleged failure to warn of a hazardous river condition, allegedly caused by discretionary dam operations, is itself protected by the FTCA discretionary-function exception, 28 U.S.C. § 2680(a).
2. Whether summary judgment was proper where the district court treated the failure-to-warn claim as discretionary solely because the underlying dam operations were discretionary.

## Decision

- The Ninth Circuit reversed the grant of summary judgment and remanded.
- The court held the district court erred by applying a per se rule that a hazard created through discretionary dam operations automatically makes the failure to warn discretionary.
- The court required a separate analysis of whether the alleged failure to warn involved protected policy judgment (planning-level discretion) or unprotected operational conduct.
- The court left open whether the failure to warn was discretionary and, if not, whether substantive tort law imposed a duty to warn under the circumstances.

## Legal Principles

- Under 28 U.S.C. § 2680(a), the FTCA does not waive sovereign immunity for claims based on the exercise or failure to exercise a discretionary function, even if discretion is abused.
- The discretionary-function inquiry focuses on whether the challenged conduct involves policy judgment of the type Congress intended to shield, commonly described as planning-level decisionmaking.
- Government conduct must be disaggregated: the fact that an underlying activity is discretionary does not automatically render related conduct (such as warnings) discretionary.
- A failure-to-warn claim requires its own discretionary-function analysis to determine whether the omission reflects a policy-based choice or an operational lapse.

## Conclusion

The Ninth Circuit held that the discretionary nature of dam operations did not, by itself, bar an FTCA claim alleging failure to warn; the failure-to-warn omission had to be evaluated independently under § 2680(a), requiring reversal of summary judgment and remand for further proceedings.


Lindgren v. United States, 665 F.2d 978 (9th Cir. 1982)