*1 Freake, is not to for negate responsibility (7th sufficient Cir.1981). 650 F.2d In cases, criminal acts.” those we set forth five factors which a district court should ruling consider in on The Wilson court determined that the a request to counsel. Those factors appoint (1) (2) mandatory; instruction was not (1) were the the whether merits of claim because it erroneous referred evi- colorable; are (2) ability the indigent of the instruction; dence context of an in the facts; to investigate (3) crucial whether the (3) an was not erroneous statement of law. nature of the evidence indicates the Moreover, the court said that one cannot truth likely will be exposed more despite plain language assume that the counsel; represented both by (4) sides are instruction, perverted the the jury capability indigent of the present upon acted it to the meaning prejudice case; (5) complexity legal issues agree the defendant. We and conclude Merritt, complaint. raised at 764. that Wilson has failed to show that Here, so instruction infected the entire trial that basis for argu- Wilson’s the resulting conviction due ment that proc- petition presents violated a colorable Kibbe, 154, ess. Henderson v. 431 U.S. at claim is granting of a certificate of probable S.Ct. at 1736. cause the district court. Wil- son has pointed or issues of fact law
III. that appointed counsel develop could presentation fact, to this Court. In Wilson Wilson next this challenges Court’s fails to consider that on appeal he could not denial of for appointment motion of coun present issues were not before sel. argument The crux of Wilson’s is that Thus, district court. the only issue that once a court grants district a certificate of may present Wilson is this Court probable pro litigant, cause to a se the court issue instruction, issue jury an ade- appeals appoint must counsel in order to quately presented to the district court. address the merits. Finding no further issues before properly 3006A, 3006A(g), pro- Section U.S.C. § Court, judgment of the district vides in pertinent part: court is affirmed. “Discretionary appointments. Any per- — son seeking ... relief under section or of title ... may representation pursuant furnished to the
plan whenever the magis- United States
trate Court determines justice
interests so and such require person DAVIS, Plaintiff-Cross-Appellee, financially rep- unable obtain Scott ” Cross-Appellant, .... resentation Further, it has been the of this circuit that appointment of indigents counsel for America, UNITED STATES Defend- habeas corpus proceedings rests the dis- ant-Cross-Appellant, Cross-Appellee. cretion of district courts “unless denial 82-2604, Nos. 82-2649. result fundamental unfairness im- United Court of Appeals, States pinging on due process rights.” LaClair v. States, Seventh Circuit. United (7th 374 F.2d Cir. 1967). Argued May 1983. Although our decisions address stan- Aug. Decided 1983.
dard for exercising appoint discretion to Rehearing Certify and Motion To State level, counsel district court those Question Law Denied Oct. 1983. standards would be in the appel- relevant Faulkner, late court. See Merritt v. (7th Cir.1983); Israel,
F.2d 761 McKeever v. (7th Cir.1982);
Nancy K. Asst. Atty., U.S. l., for defendant-cross-appellant, Il cross-appellee. Patterson, Robert B. Drumke & Patter son, Davidson, Ill., Louis G. Chicago, plaintiff-cross-appellee, cross-appellant. CUMMINGS, Before Judge, Chief POS- NER, FAIRCHILD, Judge, Circuit Sen- *5 ior Circuit Judge.
POSNER, Judge. Circuit injured Davis in September Scott diving 1978 while into Kitchen Devil’s Lake in the Crab Orchard National Wildlife Ref- uge. Refuge The is owned and operated by States, heavily patroniz- United and is ed—it had one and a half million visitors in especially by students at the nearby 1978— campus of University Southern Illinois (SIU). In the years preceding nine there diving accident had been five acci- dents at another in the Refuge, lake Crab Lake. Orchard One of the accidents had fatal; been two others had rendered their quadriplegics. Knowing victims there was swimming in Devil’s Kitchen Lake too and fearing lest the subsurface rocks in the lake diving injuries cause serious such as had Lake, govern- occurred at Crab Orchard ment in 1975 had Devil’s closed Kitchen Lake to swimming except at beach one lake, end of the posted along and had lake, Refuge’s leading roads to the near the Refuge, signs entrances to the of moderate reading, Swimming size “No in Devil’s Kitchen Beneath had sign Lake.” each slightly reading, been erected a smaller one the size nor the color Diving.” “No Neither surface, (white blue) dan- his signs companion on indicated and broke neck. His ger, and there was no reference to the struck the same but outcropping any possible subsurface rocks or to his scraped other chest. or, a swimmer or for that hazard to diver — The accident rendered Davis a quadri- matter, swimming to the fact that was per- He plegic. brought damages this suit for mitted at the beach. At first no effort was against the United under the Feder- States prohibition, made to enforce the but in 1976 Act, 1346(b), al Tort Claims 28 U.S.C. §§ who Orchard Ref- rangers patrol Crab seq. 2671 et The district court determined citations, uge began issuing accompanied by $4,047,000, damages and the danger, oral of the explanations people amount is not contested. The district court caught swimming govern- in the lake. The also determined that the accident was due ment made an effort publicize also percent negligence to Davis’s own and 25 with local radio and no- prohibition spots States, that of the percent United campus newspaper. tices in the SIU $1,012,000. therefore awarded him He has against background It was that Da- contending that he is entitled to appealed, vis, SIU, student at went with 23-year-old damages his full or at least to more than 25 three friends to swim in Devil’s Kitchen percent; cross-appeal- has Lake one summer afternoon. One ed, contesting liability. men, Ellison, young had swum in Devil’s We think it clear to begin with Kitchen Lake before and had not noticed (which Illinois governs under As the any group hazardous rocks. drove case, substantive issues in this see 28 U.S.C. into Davis was seat- Refuge, Crab Orchard 1346(b), because the accident § occurred ed on the left-hand side of the rear seat of Illinois) the government negli was at least no-swimming the car and did not see the gent failing to warn the public no-diving signs. young One of the men danger effectively of subsurface rocks more asked Ellison whether it okay to swim obvious, danger than it did. The was not replied, in Devil’s Kitchen Lake and he in our recent decision in Kohl v. United “you’re supposed everyone to but does.” States, (7th Cir.1983). 712 F.2d 290 n. 1 Davis testified that he did not hear this photographs From the in the record Devil’s exchange. group gravel in a parked *6 Lake, despite Kitchen its ominous faintly spot” “widened and walked to the shore. name, presents placid, unthreatening a ap in There was no one the water and no is pearance. Although rocky, shoreline indication that it was an authorized swim- the lake looks and there is no indica deep ming area. Ellison inflated a raft rubber might tion that there be sinister stilettoes and floated out on it. Davis and another jutting up from its bottom. Even to one man swam about
young short time in the there no swimming suggestion is lake got without incident and then out and danger, companion for Davis and his walked to a point some feet on the shore about, swam and Ellison floated about on opposite Ellison on his raft. The shore here raft, his rubber for some minutes —how was a stone about three feet above ledge noticing any is unclear —without sub long the surface of the lake. The lake seemed Swimming” sign surface rocks. The “No testified, Davis, clear to he but also “There good warning danger; was not much as a glare was from the sun. that if you So laconically it announced prohibition looked down at the water the sun was re- could as well have been intended to flected into his com- your eyes.” Davis and as vice protect the lake from swimmers decided to swim out to Ellison and panion sign The “No was a little Diving” versa. into the from his raft. tip They him water purpose better —for what could be its but took and while in the air running dives too much to danger? warn of still left He dropped Davis his arms to his side. —but imagination. rangers give For oral a rock that outcropping landed head first on warnings people they caught swimming lake protruded from the bottom of the went, far as it but did point diving about a foot and a half below the was fine as 424 good, ranger
Davis no
for no
saw these
But under the common law of Illi
young
swimming;
they gotten
men
nor had
negligently
injure
nois
is not a tort
from
message by word of mouth
fellow trespasser.
Belleville,
Trout v. Bank of
36
caught,
students who
been
or from the
had
83, 86,
261,
Ill.App.3d
(1976);
343 N.E.2d
268
occasional
spots
radio
or occasional notices Votava v. Material
Corp.,
Service
74 Ill.
campus newspaper.
212,
App.3d 208,
113, 116,
30 Ill.Dec.
392
768,
(1979).
N.E.2d
771
While the district
history
diving
accidents at
court found that Davis was not a trespasser
Crab
Lake showed that people
Orchard
he
injured,
when
the court did not
diving despite
prohibition against
were
explain
finding;
its
swimming
diving
getting
and were
se
and
think Davis was
so;
riously
doing
hurt
the government
a trespasser as a matter of law. The fact
was aware of
swimming,
unauthorized
may
that he
not have known he was a
similar danger, at Devil’s Kitchen Lake.
It
(it
trespasser is irrelevant
is unclear wheth
would not have cost much to amend the
knew,
er he
since the district court made no
“No Diving” sign
“Danger:
to add
Subsur
whether,
finding
denial,
on
despite his
Da
Rocks,”
face
and to have posted
signs
these
vis had heard Ellison
acknowledge
expected,
where swimmers could be
such as
swimming
forbidden).
See DuMond v.
gravel
at the
widened
spot
Davis and
Mattoon,
City
83, 87,
60 Ill.App.2d
car,
his friends parked their
as well as at
(1965) (“The
N.E.2d
original ordi
Refuge.
entrances to the
Of course the
prohibited
nance
fishing
this area ....
cheapness of a precaution is not the only
is,
course,
It
everyone
fundamental
deciding
consideration in
whether its omis within
city
charged
with constructive
sion is negligent;
the benefit from the pre
knowledge of its ordinances...
. The im
caution must be commensurate. See Lance
plication of an invitation to fish there dies
Senior,
36 Ill.2d
have cost buy, to and maintain. And possible It is that understates the benefits circumstances of signs, potential victims, suggesting might since other an invitation implied accident just Davis, not would have signs, been warned. override the and even that a land-
425 153, True, prevent (1979). to N.E.2d 416 some of steps take 391 any failure to owner’s trespass to a injury to forbidden zone the Illinois cases where straying invitees from an implied to “willful and wanton” enough be constitute er been deemed might has State, see, Mooneyham supra, v. e.g., invitation. Hill v. negligence,” See involve “active govern- 91, But while O.R.R., Ill.Ct.Cl. at 154. (7th 29 153 F.2d 93-94 Baltimore & prevent have more to ment here could done Wrigley v. Eleetric Machine Cir.1946); & diving, we can- swimming and people 972, from Co., (7th Cir.1969), which 419 F.2d 975 the lake nothing, it that itself say did to of a requires failing more than warn just invitation to swim and dive constituted an “willful and others define hazard. And there was no beach or place at a See, e.g., as serious misconduct. wanton” swimming or div- provided other for facility Lines, v. Transit Schneiderman Interstate ing. 569, 293, Inc., 583, 69 300 Ill. N.E.2d 394 safety for the (1946) (“a disregard reckless is no of duty The rule that there Cos., Ill. others”); v. Jewel 24 Murphy is, however, a ordinary trespasser care to 4, 47, (“it 1, (1974) 320 N.E.2d 50 App.3d law rule— allied to another common closely inadvertence such as goes beyond far mere is a contributory negligence complete that ordinary negligence, the case find in In both charge negligence. defense to a disregard for it a conscious for the requires prevented the victim could have cases More, others”). though, only find safety of trespassing accident reasonable cost —the a shade of difference between willfulness contributorily trespassing, victim not negli- on one hand wantonness care by using victim due for negligent See, e.g., v. gence Cooper on the other. enough this is common safety own —and Cox, 56, 651, Ill.App.2d 51, 175 31 N.K2d excuse the defendant from thinking Hara, 22, (1961); Spivak 69 Ill.App.2d 653 v. recently abrogated Illinois any liability. 26, 173, (1966) (describing N.E.2d 175 negligence as a defense and 216 contributory “a vague and wantonness as comparative negligence. Alvis willfulness substituted 1, shadowy close Bibar, 23, ordinary Ill.Dec. 421 somewhat area v. 85 Ill.2d 52 Bank v. Penn (Alvis Beverly Cen- (1981). negligence”); N.E.2d 886 declared that 82, 110, Co., 77, 315 Ill.App.3d be the tral 21 N.É.2d comparative negligence would rule 8, 1981, (1974) (“It is if he land- began trials after June as 115 sufficient all that [the 28, a rea- case 85 U1.2dat 52 had notice which alert the trial in this did. owner] 35, that danger Ill.Dec. at 421 at 898. Since the sonable man substantial N.E.2d reasona- sub involved and he failed take effective date of rule determines circumstances”); un applicable precautions it is to cases ble under rights, stantive Co., 34 v. Commonwealth Edison Spence der the Tort Claims Act. See U.S.C. 1059, 1067, 550, 340 N.E.2d 1346(b).) It would rather inconsistent Ill.App.3d § Hale, v. trespasser (1975); Tripp for Illinois to retain status (1979). complete defense rather than make Ill.Dec. 392 N.E.2d comparison one in the of fault. factor Latimer, 66 Ill.App.3d In Latimer 688-89, though, 23 Ill.Dec. N.E.2d conjecture, This used (1978), Appellate Court Illinois ground thinking there is solider wanton the formu- as the test of willful and apply the Illinois courts would not the rule (Second) of Torts there to a lation in Restatement duty trespasser is no care duty of care (1965) time landowner’s Although in this case. at one § formulation makes licensees. This duty trespasser of a landowner toward *8 an caused him, see, injury v. Brai the liable for e.g., to set for Bush landowner traps he or on land if “knows nard, by a the (N.Y.Sup.Ct.1823), Cow. 78 the mod condition the and the has to know of condition law of Illinois makes land reason ern common an unreason- that it involves and wanton” should realize owner liable for a “willful licensees, and such able risk of harm to See, e.g., to Mentesana injury trespasser. a will not or they discover LaFranco, expect 29 Ill.Dec. that should ... he ... to danger, implies realize the and fails will. ‘Wantonness’ a dis- complete condition and the warn the licensees of the for the or of regard rights safety the oth- ” describes case risk involved.... This our is Although support ers.” there some for (see id., j, effect comment on the perfectly cases, this the Illinois formulation in we not warn dan- posting signs that do of Illinois today think courts more draftsmen ger); though the intended to the tests of likely apply sections 335 or licensees, to to La- language apply Restatement; although 342 of the it to the equated timer case common remand the for a could case determination Illi- term and wanton” which under “willful government’s liability either under duty nois law defines the landowner’s tests, sufficiently these we are confident trespassers care as well. to any trier of that reasonable fact would find this government case willful and addition, 335 of the In section Restate- unwilling to be to prolong wanton liti- who possessor ment states: “A land gation. We understand and share dis- in- trespassers constantly knows ... govern- trict reluctance to judge’s find the land, a area of his is upon trude limited misconduct; guilty ment of serious subject liability bodily for harm caused to facts, appear, as shall do support such a dangerous] to highly them artificial [a finding. disagree Where we with the dis- land, if condition on the ... the condition trict is judge meaning over the of “willful ... is of such a nature that he has reason law, and wanton.” In Illinois these terms to trespassers believe such will do not have their usual English meaning; it, and has exer- discover ... failed to [he] heightened denote a they merely somewhat trespass- cise reasonable care warn such to negligence form of government such ers of the condition and the risk involved.” guilty was of here. Refuge The director of Orchard the Crab had described Devil’s Kitchen Lake before question The next whether impoundment the accident as “a man-made government’s liability for its willful and a environment for creating hazardous injury wanton was excused Illinois’ Rec swimming diving,” and we would add reational Use of Land and Areas Water it very Altering that was hazardous. Ill.Rev.Stat.1981, Act, ch. 31-37. The Hf this nature in fashion created an artificial Act to “encourage is intended owners of condition, Prosser, supra, see cases cited make land to land and water areas availa 45; at government 355 n. well public ble to the for recreational purposes aware that “trespassers constantly intrude by limiting liability persons their toward ”; ... it yet failed to take reasonable care entering thereon such 31. purposes.” for H to warn trespassers Although of the risk. end, provides To this that a landowner we have found no Illinois case that cites opens who for public land recreation Restatement, section 335 of the the fact no duty keep premises “owes of care that the Illinois Court in Appellate Latimer entry by any person safe for or use used wan- section to define “willful and any or purposes, give recreational warn would, ton” a suggests that Illinois courts condition, use, structure, ing dangerous fortiori, insist up landowners come activity on en premises persons such con- demanding (because less limited to tering purposes,” except for such H ditions highly that are both artificial and duty to avoid a “willful or malicious failure dangerous) care in 335. standard of section or warn con guard against dangerous judge found, dition,” 1136(a). how district If “willful or malicious” ever, higher wrong that the degree not “willful does not denote a wanton,” said, think, wanton” He “I than “willful and doing case. all, at government’s argument first of means Use Act fails doing ‘wilfulness’ some thing you We intentionally that know should threshold. But we think it does. de not be thereby constituting construing a miscon rive from cases support some done implies, least, states, duct. Gard v. It an exercise of a statutes in other see similar
427 States, horrendous, avert if are F.Supp. (N.D. 302 would effective United 420 Cir.1979) aff’d, (9th put 1230 to Cal.1976), government’s 594 F.2d cannot call failure States, curiam); v. Ducey United in to the (per explicit warning signs addition up see (D.Nev.1981); but F.Supp. that it did em- signs precautions and other States, F.Supp. Mandel United willful or malicious. ploy and more from the (W.D.Ark.1982), 912-13 Therefore, applies if the Use Act to that, of Illinois tort given the structure fact Refuge, government’s Orchard Crab law, no more if “willful or malicious” meant Davis is excused. The misconduct toward Act “willful wanton” the Use than and if the were plaintiff Refuge concedes against at all provide protection would no owned, its owner would be within privately of the common law liability. Under tort Act; scope under not the literal of Use and Illinois, permits if a but does landowner govern to use his land for recrea- the Federal Tort Claims Act the public invite is all Act liable “in the same manner and purposes tional the Use ment is —which to since its limitation contemplate private to the extent as individual appears same ” charged if a is liability inapplicable fee like circumstances .... 28 U.S.C. under users, Ill.Rev.Stat.1981, 70, 136(b) ch. States, 597 2674. But in Miller v. United § —the licensees, see users are Restatement (7th Cir.1979), we held the Use F.2d (Second) of 332 comment d Torts Refuge §§ to Crab Orchard inapplicable Act law, and Illinois the landown (1965); under statute, subsequent Illinois because a licensee same as duty er’s care to is the Licensing Act, Ill.Rev. Area Recreational trespasser avoid duty his of care to a Stat.1981, 111½, Act, ch. 761-785. That —to E.g., DuMond v. injury. willful or wanton exists, finding basis of a “that there on the Mattoon, at supra, Ill.App.2d City exist, future within the may and Latimer, 322; at Latimer v. 207 N.E.2d recreational areas .. . Illinois State (cid:127) 688-89, at 23 Ill.Dec. supra, fea important are which substandard Act 473, 384 109. So if the Use N.E.2d at cleanliness, sanitation,” or safety, tures of liability landowner’s merely confined the be purpose protect, pro its “to declares willful codi- injuries, or would be wanton health, mote, safety preserve public and modifying rather than his common fying by providing the estab general and welfare been liability, that could not have and minimum lishment enforcement of legislators’ intent. gener safety, cleanliness and standards areas warn al for all recreational government’s The failure to sanitation ” It not or malicious.” The Act defines “recreation here was “willful . . . . 1763. hazard, or other hidden but did as an area cabins knew there was a al area” steps campgrounds hands. It took just overnight sit on its facilities such accident that occurred type of prevent for recreational activities are maintained here, pre just failed to take additional 1762(b) but to include (broadly defined cost-jus have that also would been cautions camp swimming) limited or for not be not have been of certain yet would 1762(a). government concedes ing, The tified — at would little pay efficacy. Many people Refuge privately were that if Crab Orchard “Danger: to a that said Sub sign tention (the to federal apply Act does owned if would think that They surface Rocks.” 016) it would land, No. Ops.Ill.Atty.Gen’1 they the water stared hard at they camp it has subject to the Act because rocks; if like Davis and see the grounds. for a bit they friends had swum around us to recon asks diving, might decide that they before in Miller that landowners holding our lake, sider part referred another sign longer Act no Licensing may to the subject of what another manifestation under liability from tort immunity claim might nanny spirit they consider out, first, points Act. It signs the Use while such government. modern So rejected later Appellate Court they Illinois would be accidents cheap *10 428 Stryker dictum in Johnson v. no
holding provisions relating contains to tort liabil- 717, 721, 931, all, 26 Corp., Ill.Dec. it ity may preference at reflect a for a (1979) (“we N.E.2d cannot over a regulatory system common law for Miller,” i.e., adopt holding the restrictive of preventing accidents in recreational areas. apply that the Use Act does not to property imagine But we its overriding that concern Act). subject to the later-enacted Licensing is safety, and so conceived the Act would be But is only slight evidence of what the undermined if to it subject landowners con- if the Illinois courts would do faced with to tort enjoy immunity tinued the of the case. by present issues raised Miller and the very Use Act with its different purpose of Not was only the issue not involved in John encouraging the opening public of land for (the subject son landowner there was not to charge price recreation free of but at the of Licensing Act) the the entire dictum is but Also, danger public. some to the the Li- clause, a brief and conclusional subordinate censing bespeaks Act concern recrea- for the of quoted. meat which we have landowner, areas the tional where whether or for profit, steps
The out next that the not has taken to encour- government points inconsistent, two are which literally acts not by recreational age providing uses over- is ignores purposes. facilities; true but their The Use night and the fact that he has Act, passed designed to encour was so suggests done he has the resources to age up to their open property landowners protect safety users from hazards. public for when By free recreation. If the spirit may of a later statute the Licensing Act the had passed, state the scope allowed to limit earlier an safety become concerned about health and one, as cases such as v. United Erlenbaugh areas, oper recreational whether or not States, 239, 243-44, basis, U.S. ated on a user-fee that S.Ct. contained (1972), 34 L.Ed.2d is some indicate stays. for overnight facilities The Licens possible the canon ing despite hoary times brought Act these areas under de statutory by tailed that licensing requirements repeals impli scheme of construction disfavored, other cation are our in Miller regulatory holding controls. argues that real con legislators’ the later Licensing scope Act limits sanitation, cern with but this is belied predic of the Use Act well be a may correct by earlier, statutory language quoted how try tion of the Illinois courts will which repeatedly safety describes sani reconcile the two statutes. This is cer tation as alternative concerns. also See tain; but faced with construc statutory Ill.Rev.Stat.1981, 111½, ¶ ch. (Licensing problem indeterminacy, tion of classic we Act). if, It would be having brought odd shall adhere to Miller. Stare decisis has its under the strict safety require- and health claims.
ments of the Act of the Licensing a subset We turn to the question Da landowners who had been encouraged negligence. vis’s own To dive into water open earlier Use Act their land you head-first is to court disaster unless public recreation, the state these wanted that, hit, know you where the water has landowners to enjoy continue the almost depth sufficient absorb the dive. The complete immunity from tort con- liability diving cautious their truly confine to the ferred that act. This would mean that swimming pools, ends of deep piers state got until the to issuing regula- around jetties lakes that are marked safe for tions under Licensing covering Act swimming diving, the sides of boats far from diving areas unauthorized (which To done), it has not shore. dive from shore a lake yet the owner of a that has not been marked as diving recreational area un- safe for enjoy immunity der the liability negli- negligence per Use Act from se unless the diver has his gence being governed by safety soundings depth while taken careful regulations where he hit Licensing point Act at lake at will True, water, he swimming Licensing beach. Act which had done. Since Davis adopts the noticing any 1981). And even if Illinois mi- in the lake without had swum imagine nority position, cannot at some dis- but that was rocks subsurface degrees parties’ compare he dove. The fact will refuse to tance from *11 parties’ in a where both wrongdoing rocks of case his not noticed subsurface friends had defendant’s, just the can be negligence, there were was evidence that only slight (cf. as willful and wanton diving. His described where he was place none in the is, Schwartz, 111) as we supra, at the at depth the of the lake gauge ability to —-which see, was ob- case diving which he was the here. point into shall of the sun. A reasona- glare the by scured have to consider whether a We now not have dived. ble man would have trier of fact could found reasonable the district agree we with as as blameworthy So Davis to be three times but must 25 negligent, (75 per Davis versus percent court that government the can be a negligence meaning finding decide whether exact of such cent). next The mis clear, the and wanton with willful from compared too and the cases other is none At common government. conduct too (comparative negligence is jurisdictions a law, contributory negligence Illinois the Illinois courts to recent for negligence, but only defense complete guidelines applica for its have formulated of guilty it; the defendant was finding that tion) unhelpful compar in clarifying are the overrode wanton misconduct willful and are left ative-negligence judgments largely and al contributory negligence plaintiff’s of of fact. to the intuition the triers See See, damages. collect his full lowed him to Schwartz, But at its supra, chs. 17-18. root 297, Iverson, v. 56 e.g., Iverson as the may following: be some such idea 1135, 108, N.E.2d accident, injurer Ill.Dec. 370 the though parties both apportion no (1977). there was victim, Since could avoided the accident and have law, only damages at common ment of cost—for otherwise both at reasonable giving in such a case was between choice have and need negligent would not been every him nothing giving and plaintiff their would not compare negligence of con replacement But with the thing. have avoided the of them could arise —one by comparative negligence, other, tributory than the and at lower cost accident liability back shifting entire reason bear a share of burden larger he should disap to the willful and wanton defendant Schwartz, of failed to do so. Cf. having such true in a case pears. especially expected This is and if the at 278 n. 10. So supra, as is a term where willful and wanton the plaintiff of the accident is $10 cost of denoting merely higher degree of art of have avoided it at a cost and the $1 could comparative The negligence. $2, function plaintiff, at a defendant cost degrees compare is to different negligence as the defend blameworthy being twice negligence. ant, the cost acci should bear twice defendant, which means that his as the dent Therefore, Illinois although the should be reduced two-thirds. damages a defend yet have to decide whether courts prevented have misconduct could may government and wanton ant’s willful (if all) by erecting contributory plaintiff’s with the this accident compared of subsurface warning danger signs think it that when likely negligence, its rocks, rang- by stepping up patrols with will themselves they align issue arises would ers, prevention neither form of jur comparative-negligence majority But to efficacy. stop See, have been of certain isdictions, e.g., may. which hold that it would be let this observation Lines, F.2d 1091 with Plyler v. Wheaton Van easily. As the Schulze, off the hook too government 16 Wis.2d (9th Cir.1981); Bielski v. (1962); ranger patrols increased 1, 15-18, 112-13 signs 114 N.W.2d poten- all Davis but just 5.3 benefited not''have Schwartz, Comparative Negligence § diving acci- swimming victims of Negligence tial Kionka, Comparative (1974); of pre- dents, government the cost to the (Sept. Illinois, 70 Comes to Ill.Bar.J. the accident to Davis venting would have have a firm conviction that it is wrong. been than the total See, much less costs of those e.g., Caldwell v. Piggly-Wiggly Madi government Co., measures. The also had more 447, 459, 145 son 32 Wis.2d N.W.2d than Davis information about the hazards (1966); Hall, Winstead 251 Miss. of diving into Devil’s Kitchen Lake. (1966). It So.2d would be easy to uphold the district court’s allocation of fault But Davis’s own fault was grave. He if the guilty were of only mini- prevented could have accident just mal negligence. But parties since both not diving. This would have been a trivial were law, willful and wanton under Illinois sacrifice. He still could have swum out to the natural division of fault would have raft; tip Ellison off it would have 50-50; been and giving all due deference to taken him a few longer. seconds If he *12 the district court’s superior ability to make particular pleasure derived diving, from he the comparative-negligence determination, pursued could have in sport areas mark- we cannot find any basis in the district ed diving; safe for but it appears he dove opinion court’s or in the regard- record for get Furthermore, to the raft faster. ing Davis as having been more than twice had he not insisted on taking running as blameworthy government. as the This ledge dive—and from a three feet above the that, most, means at the he should bear surface of the water —the danger would (not three-fourths), two-thirds and the have By running been less. diving government one-third, of the cost of the from a he height made it certain that he accident. part dive into a depth lake the of which he could gauge not from posi- his We shall therefore reverse judgment tion on the shore. (Oddly, the record con- the district court insofar as it failed to tains no evidence of the distance between award Davis more than one-fourth of the the point from which jumped $4,047,000 he and the damages that parties agree rock outcropping on landed.) which he Fi- the proper measure of injury, and re- nally, by dropping his arms to his sides mand the case for a new trial limited to the while in flight he increased the risk proper apportionment fault, of the parties’ short, injury. In he could have. greatly Davis, unless within 21 days receipt reduced danger to himself with very of our by court, mandate the district files a little by running, diving written election accept one-third of the effort — from height, by keeping his damages. hands extend- We direct the district court (as ed in front of him his companion had the enter judgment for that amount if Davis do). sense to Of course he did not know files such an election within the specified there were subsurface rocks where he was time. Otherwise there must be a new trial diving, but a reasonable man would have apportionment limited to the question. Cf. known that the danger, small, though Schwartz, 206; supra, Parchia, Parchia v. great enough (considering possible con- 669-70, 24 Wis.2d 130 N.W.2d sequences) to warrant simple precau- (1964). tions that would have catastrophe. averted procedure This is not foreclosed was, therefore, Davis’s conduct Schiedt, Dimick v. 474, 486-87, 293 U.S. not minimally negligent but willful 296, 301, and S.Ct. (1935), L.Ed. 603 which wanton, like that of the plaintiff in Beverly holds that the Seventh Amendment forbids Bank v. Co., Penn Central supra. But it additurs in federal trials unless plaintiff does not follow that Davis’s willfulness and consents. This rule is triply inapplicable in wantonness was three times great as as this case: we have made the additur condi that of the government. Although consent; tional on the plaintiff’s scope judicial review of such a determi amount of damages dispute; is not in there limited, nation is the determination is not is no in jury trial Federal Tort Claims Act committed entirely to the discretion of the United, Inc., cases. McCoy Cf. v. Wean trier of fact and we must if we (E.D.Tenn.1975). reverse F.R.D. since we have complain cannot America, minimum of entitled to a ex rel. Davis is held that UNITED STATES TONALDI, matter of law. as a damages of his one-third Ronald Petitioner-Appellee, trial, under a new there be Should it will be before Rule 18 our Circuit will the trial though even judge, different Tyrone C. Richard J. ELROD issue; mention this to one be limited Fahner, Respondents-Appellants. uncertainty has been some because there par in cases applies the rule to whether No. 82-2063.
tial new trial. Appeals, United Court States no award of costs will be Finally, there Circuit. Seventh this court. Feb. 1983. Argued in Part. Reversed in Part and
Affirmed 19, 1983. Aug. Decided FAIRCHILD, Judge, con- Circuit Senior 14, 1983. Sept. Denied Rehearing dissenting part. curring part, rejection of majority’s I concur in *13 that it is entitled government
claim favor. in its judgment
to reversal majority’s to the doubt as
I have serious that Davis of law as a matter
conclusion to be no There seems trespasser.
awas invited into public that
question includ- purposes, for recreational
property locations. Under swimming at various
ing equate necessary
the FTCA under individual private with privately An invitee on circumstances.
like with con- charged not be
owned land would owner’s deci- private
structive notice I doubt swimming. permit
sion not to becomes that an invitee
Illinois would hold ineffectively violating an trespasser by otherwise on an
communicated restriction acceptable use. apparently 1229. F.Supp. See also govern- whether I doubt Similarly, adequate a more give failure to
ment’s matter of be held as a properly can
warning willful or wanton. to be majority has assuming
But even issues, I two do resolved these
correctly “firm conviction”
share fault was causal apportionment
75%-25% ap- judgment affirm the
wrong. I would
pealed from.