546 F2d 645 Ramirez v. United States Department of Interior-Bureau of Reclamation

546 F.2d 645

Ramon RAMIREZ, Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF INTERIOR-BUREAU OF RECLAMATION
et al., Defendants-Appellees.

No. 76-2875
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Feb. 4, 1977.
Rehearing and Rehearing En Banc Denied March 2, 1977.

L. Taylor Zimmerman, El Paso, Tex., for plaintiff-appellant.

John A. Grambling, Harold L. Sims, El Paso, Tex., for El Paso Water Imp.

Appeal from the United States District Court for the Western District of Texas.

Before AINSWORTH, CLARK and RONEY, Circuit Judges.

PER CURIAM:

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1

This is an appeal from a judgment entered for defendant at the close of plaintiff's evidence in a nonjury trial. The wrongful death action was brought by the parents of a six-year-old child who drowned in the Franklin Canal, owned and maintained by the United States Government.

2

Based on the allegations in this case, we have serious doubt as to whether the Government is immune from the allegations of negligence in this suit under the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C.A. § 2680(a), see Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), as held by the district court. We do not, however, have to resolve this issue. The additional findings and conclusions of the court that there was no actionable negligence on the part of defendants are not clearly erroneous and properly apply Texas law, which controls this case. Cf. Avina v. United States, 115 F.Supp. 579 (W.D.Tex.1953).

3

AFFIRMED.

*

Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I