Adams v. United States

• Decision Date: 19 March 1965
• Docket Number: Civ. No. 5436.
• Citation: 239 F. Supp. 503
• Parties: Edd ADAMS and Dorothy Adams, Husband and Wife, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Oklahoma

239 F. Supp. 503

Edd ADAMS and Dorothy Adams, Husband and Wife, Plaintiffs, v. The UNITED STATES of America, Defendant.

Civ. No. 5436.

United States District Court E. D. Oklahoma.

March 19, 1965.

Arnold B. Britton, James E. Grigsby, Oklahoma City, Okl., for plaintiffs.

E. C. Nelson, Asst. U. S. Atty., Muskogee, Okl., for United States.

DAUGHERTY, District Judge.

This is an action brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The plaintiffs are husband and wife and the parents of Sherrie Adams, who died as the result of a personal injury received while swimming or wading in Platt National Park near Sulphur, Oklahoma. This Park is owned and controlled by the United States of America, pursuant to 16 U.S.Code §§ 151, 152 and 153.

On July 12, 1963, the decedent, ten years of age, was visiting friends camped at Platt National Park with her mother. She and other children were swimming, wading and playing in a pool of water situated on Rock Creek which flows through the Platt National Park. Someone had affixed a rope to a limb overhanging the pool of water. A small boy swinging on the rope swung out over the pool of water in which the decedent was located and struck her on the head. The decedent suffered a traumatic cerebral hemorrhage as a result of this collision, from which she died in a hospital the following day. Her mother was not at the pool at the time of the collision but was at a nearby camp site.

Plaintiffs claim that their daughter was an invitee of the Government to Platt National Park and at the location where she sustained the injury involved herein. Further that the defendant as the proprietor of Platt National Park through its employees in charge of the Park owed its invitees the duty to exercise ordinary care to keep the premises in reasonably safe condition and to warn its invitees of dangers existing on the premises. Plaintiffs further allege that numerous children continuously used the pool of water above mentioned during the summer months for bathing, swimming and wading and that the defendant knew the same or in the exercise of ordinary care should have known of such continuous use. Further that the agents, servants and employees of the defendant in charge of said Park were guilty of negligence in permitting the rope swing to be suspended from the limb overhanging said pool of water and in allowing children to swing thereon and over said pool of water while other children were using the same for bathing, swimming and wading; that such rope swing so situated was a dangerous condition or instrumentality under the circumstances and created a hazardous condition for those using said pool of water as aforesaid; that the said agents, servants and employees of the defendant in charge of said Park either knew of the existence of said rope swing and its use prior to and at the time of the accident herein, or that same was suspended over said pool and so used by children as a swing for such a length of time prior to the accident herein, that in the exercise of ordinary care they should have discovered and eliminated the rope swing and dangerous use thereof. Plaintiffs also claim that the agents, servants and employees of the defendant failed to properly supervise said pool of water or have a life guard in attendance.

The defendant admits that it owns and controls Platt National Park but denies that it maintained the same as a recreational area for the public. The defendant denies all other allegations including notice or knowledge of the existence of said rope swing and pleads contributory negligence of the plaintiffs as parents of the decedent child in failing to maintain proper and adequate supervision and control over her, contributory negligence on the part of said deceased child in failing to stay a safe distance from said rope swing, and that the negligence of a third party, the one using said rope swing, was the sole and only proximate cause of the accident and death of the child of the plaintiffs. Defendant also alleges that swings are prohibited in said Park.

From the evidence the Court finds that plaintiffs' decedent as an invitee of the defendant was injured on July 12, 1963, while wading or swimming in a pool of water in Rock Creek in Platt National Park near Sulphur, Oklahoma, by being struck on the head by a boy swinging over said pool on a rope swing affixed to a limb overhanging the pool; that the plaintiffs' decedent died the next day; that the cause of death was traumatic cerebral hemorrhage resulting from the above incident. Further, the Court finds that the said rope swing was affixed to a limb overhanging the pool of water involved on Monday, July 8, 1963, and remained so affixed that week except that the same was down either Wednesday or Thursday of that week; that while so affixed to the limb, children at the pool would use the rope swing to swing out over the pool of water from a high ledge at the pool; that the rope swing was up Friday morning at nine o'clock A.M. and was up continuously during Friday until the accident here involved occurred about mid-afternoon; that said pool was a natural pool of water about waist deep with a dam of loose rocks being thrown up to deepen the water, apparently this being done by children using the pool; that during the summer months the pool was frequented by many children during the day and used for bathing, swimming and wading; that the employees of the defendant in charge of the Park had actual knowledge of this use; that no signs were posted at the pool or elsewhere prohibiting such use of the pool of water; that no life guard was stationed at the pool; that the employees of the defendant in charge of the Park did not patrol, supervise or inspect the pool of water but only went to the same when something amiss was reported;...