Miсhael MANDEL, Appellant, v. UNITED STATES of America and Insurance Company of North America, Appellees.
No. 82-2053.
United States Court of Appeals, Eighth Circuit.
Oct. 28, 1983.
Rehearing Denied Dec. 22, 1983.
719 F.2d 963
Submitted April 12, 1983.
This action arose from the transfer of Barnes from a cell on the first floor of the prison to a cell on the third floor fоr a period of about six months. Evidence at trial indicated that Barnes was moved to allow a guard in Barnes’ original cell unit to supervise a dangerous prisoner‘s integration into the prison population following a lengthy detention in administrative segregation. Barnes contends that because of his medical problems the defendants’ actions with respect to the transfer amounted tо cruel and unusual punishment. A report from a prison physician stated that Barnes should remain in his cell on the lower floor. The chief security officer testified, though, that he was unaware of the medical report until after the transfer. The warden and associate warden indicated that their involvement in the transfer was limited. In addition, after the transfer another prison physician certified that Barnes could function properly in a cell one walk higher for a short period of time.
Although it is difficult to understand Barnes’ pro se brief, we will discuss the issues apparently raised by him on appeal. First, Barnes argues that the district court committed error in denying his motion for a new trial. The question of granting or denying a new trial following a jury verdict is within the discretion of the trial judge, however, and a decision by the triаl judge will not be reversed by this court in the absence of a showing of abuse of discretion. See Pitts v. Electro-Static Finishing, Inc., 607 F.2d 799, 803 (8th Cir.1979). We find no abuse of discretion in this case. Second, Barnes maintains that the defendants’ lawyer made misrepresentations during her opening statement and later presented false information to the jury. These grounds were not raised in the district court, and thus, because this is not an exceptional case, we do not consider them on appeal. See Kelley v. Crunk, 713 F.2d 426, 427 (8th Cir.1983).
We have carefully considered all discernible issues raised by Barnes and find none of any merit. Affirmed.
J. Paul McGrath, Asst. Atty. Gen., W. Asa Hutchinson, U.S. Atty., Robert S. Greenspan, William Cole, Attys., Appellate Staff Civ. Div., Dept. of Justice, Washington, D.C., for appellee United States.
Bassett, Bassett & Bassett, W.W. Bassett, Jr., Fayetteville, Ark., for appellee Insurance Co. of North America, Inс.
Robert C. Compton, Brown, Compton & Prewett, Ltd., El Dorado, Ark., for appellant.
JOHN R. GIBSON, Circuit Judge.
Michael Mandel appeals from the district court‘s grant of summary judgment for defendants United States of America and Insurance Company of North America on his claim for damages under the Federal Tort Claims Act,
In this appeal from a summary judgment, all facts must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences to be drawn from the facts. Portis v. Folk Construction Co., Inc., 694 F.2d 520, 522 (8th Cir.1982).
Michael Mandel alleges that he was severely injured as the result of the willful and wanton conduct of the defendants. At
Approximately two weeks later Mandel and two friends returned to the Buffalo River National Park to visit the site where they proposed to take their camping group, and they went swimming at Mud Cave. While swimming, Mandel dived from a rock into the swimming hole. He struck his head on a large rock which was submerged four to five feet under the water, and which was not visible from the surface. Mandel broke his neck and was rendered quadriplegic by the accident.
The Mud Cave swimming hole was a popular swimming area for campers. Despite this fact, however, the National Park Service had never inspected it for potential safety hazards, and was unaware of the presence of the submerged rock until after the accident occurred. After Mandel was injured, a Park Service emрloyee inspected the area and found the rock on which Mandel had struck his head.
The National Park Service was aware of the danger of submerged rocks, as evidenced by their brochures warning campers to be careful in diving. They did not, however, post any type of warning at Mud Cave, and the Ranger who spoke to Mandel and recommended the Mud Cave swimming hole did not indicate аny possible dangers.
Mandel contends that the action of the Park Ranger in recommending the Mud Cave area as the place to swim, when in fact the Ranger was unaware of the hidden danger of submerged rock, constituted willful and wanton conduct resulting in his injury. Mandel argues that, had the government acted properly and discovered the rock before recommending the swimming hole, they could hаve either warned Mandel verbally or could have posted a sign, which would have prevented his injury.
In reviewing a district court decision granting a motion for summary judgment, we apply the same standard as the trial court. Portis, supra, 694 F.2d at 522.
Summary judgment should be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ralph‘s Distributing Co. v. AMF, Inc., 667 F.2d 670, 672 (8th Cir.1981). Summary judgment is an extreme remedy and is not to be granted unless the moving party has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances. Portis, supra, 694 F.2d at 522.
This appeal raises the questions of whether the Arkansas Recreational Use Statute,
I.
The plaintiff argues that the Arkansas Recreational Use Statute1 is not appli-
We agree with the district court that Miller is inapposite to this case. The court‘s decision in Miller turned on the interplay between the Illinois recreational use statute and an Illinois licensing act. In Miller, the court found that the Illinois Recreational Use of Land and Water Areas Act2 was inapplicable to the United States because another Illinois statute, the Recreational Area Licensing Act3 specifically applied to the property in question. Since Arkansas has no statute equivalent to the Illinois Recreational Area Licensing Act which would apply here, Miller is not support for the argument that the Arkansas Recreational Use Statute does not apply to the United States.
Other Circuits have uniformly held that state recreational use statutes do apply to the United States. See, e.g. Jones v. United States, 693 F.2d 1299 (9th Cir.1982); Simpson v. United States, 652 F.2d 831 (9th Cir.1981); Otteson v. United States, 622 F.2d 516 (10th Cir.1980). Plaintiff argues forcefully, however, that the Arkansas Recreational Use Statute is not applicable to the United States since the purpose of the statute is to encourage private landowners to “make land and water areas available to the public for recreational purposes,”4 while the United States has an independent duty to maintain the national parks as public recreational areas.5 Plaintiff‘s argument is basically that since the United States, through the National Parks Services, has already been given the duty of establishing land and waterways for public recreation and use, the Arkansas Recreational Use Statute offers no additional incentive and, therefore, is inapplicable.
We recognize the incongruity that results when the Recreational Use Statute is applied to the United States as landowner in relation to a national park. However, after reviewing the language of the Federal Tort Claims Act,
Under the Federal Tort Claims Act the United States is liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances....”
II.
Although the Arkansas Recreational Use Statute limits a landowner‘s liability, a landowner is still liable for “wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.”
In granting summary judgment for the defendants, the district court made several specific findings of fact, in apparent contradiction to
- neither defendant had knowledge of the submerged rock nor had reason to know of the existence of the submerged rock; (Finding number 11 in district court opinion.)
- neither defendant had reason to believe that a foreseeable injury was likely or probable; (Finding number 11 in district court opinion.)
- there is no evidencе of willful or malicious failure to guard or warn against a dangerous condition, or of willful or wanton conduct on the part of the defendants. (Findings number 12 and 13 in district court opinion.)
It is contended by the plaintiff, Mandel, that the evidence presented to the district court created a genuine issue of material fact as to the willfulness or maliciousness of the United States in failing to guard or warn against a dangerous condition, thereby precluding the issuance of summary judgment. We agree.
There was undisputed evidence that no warning was posted at the Mud Cave swimming hole. It was also undisputed that neither defendant had knowledge of the particular submerged rock. One of the park rangers, however, testified that he knew that submerged rocks were all up and down the river. A National Park Service brochure warned of the danger of submerged rocks. Both a National Park Service employee and a National Park Service Ranger testified that they were aware of the hazards of submerged rocks in the river. There was undisputed testimony that Mud Cave was a very popular swimming area.
Mandel testifies to the specific recommendations of the Mud Cave swimming hole by a National Park Ranger whо told him “that is where everybody goes and that is where we recommend for you to go.” We believe that this evidence, together with the knowledge of the National Park Service of the existence and hazard of submerged rocks up and down the river, and the National Park Service‘s failure to know or warn of the submerged rock on which Mandel struck his head, when considered in the light most favorable tо appellant, permits the following inferences to be drawn:
- The National Park Service would have reason to know of submerged rocks in the swimming area they were recommending;
- The National Park Service would have reason to believe that an injury was foreseeable, likely or probable; and
- The recommendation, with knowledge of the presence of rocks generаlly, and without knowledge of the rocks in Mud Cave, was a willful and wanton failure to warn against the dangerous condition.
In reaching factual findings contrary to these inferences we believe to be justifiable, the district court erred.
Arkansas defines willful and wanton conduct as that which “shows an utter indiffer-
We are further fortified in our conclusion by Restatement (Second) of Torts § 310 which provides that
An actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor
(a) intends his statement to induce or should realize that it is likely to induce action by the other, or a third person, which involves an unreasonable risk of physical harm to the other, and
(b) knows
(i) that the statement is false, or
(ii) that he has not the knowledge which he professes.
According to Comment b of the Restatement (Second) of Torts § 310 the rule in § 310 applies where the misrepresentation is made concerning the physical condition of a place or thing and induces the person to believe that the place or thing is in safe condition for his entry or use. In this case, the National Park Ranger recommended the Mud Cave swimming hole to Mandel without knowledge as to whether the swimming hole was safe. On the basis of the ranger‘s recommendation, Mandel went swimming in Mud Cave and suffered permanent physical injury as a result. Although here we are dealing with a recommendation of a swimming hole without knowledge of its condition rather than a misrepresentation, we believe the Restatement principle would apply to the ranger‘s recommendation.
The district court failed to view the evidеnce in a light most favorable to the plaintiff when it concluded as a matter of law that there was no evidence of willfulness or maliciousness on the part of the defendant United States of America. In making this judgment the court made a choice of inferences to be drawn from the facts presented by both parties, “a choice which is impermissible on a motion for summary judgment.” Westborough Mall, Inc. v. City of Cape Girardeau, Missouri, 693 F.2d 733, 742 (8th Cir.1982); United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). In Diebold the Suprеme Court held that a case is not suitable for summary judgment where there are undisputed facts from which different ultimate inferences might reasonably be drawn and as to which reasonable persons might differ. 369 U.S. at 655, 82 S.Ct. at 994.
We believe the district court erred in concluding at this stage of the proceedings that the conduct of United States did not constitute willful or malicious failure to guard or warn against a dangerous сondition. From the evidence presented there are different inferences that might reasonably be drawn. We believe that such inferences, when considered in the light most favorable to the plaintiff, preclude a grant of summary judgment for the defendant United States. Therefore the district court‘s grant of summary judgment for the United States was improper.
We affirm the grant of summary judgment as to defendant Insurаnce Co. of North America, insurer of former defendant Boy Scouts of America. We agree with the finding of the district court that there is no evidence of willful or malicious conduct on the part of the Boy Scouts of America. It was a National Park Ranger, not a member of the Boy Scouts, who recom-
Therefore, since there is no genuine issue of material fact in regard to the cоnduct of the Boy Scouts of America, the grant of summary judgment for the defendant Insurance Co. of North America is affirmed. The district court‘s grant of summary judgment for the defendant United States is reversed and remanded for further proceedings not inconsistent with this opinion.
McMILLIAN, Circuit Judge, concurring in part and dissenting in part.
I concur in the majority opinion‘s holding that the Arkansas Recreational Use Statute is applicable to the United States. I also concur in the affirmance of the grant of summary judgment for the Insurance Co. of North America.
I do not concur, however, in the reversal of the district court‘s grant of summary judgment for the United States. I do not agree that appellant‘s evidence, when viewed in the light most favorable to appellant as the non-moving party, has created a genuine issue of material fact as to the willfulness or maliciousness of the United States in failing to guard or warn against the danger of submerged rocks. I would therefore affirm the grant of summary judgment in favor of the United States.
Paul A. Zoss, David L. Davitt, Myers, Knox & Hart, Des Moines, Iowa, for appellants.