Ashley v. United States

• Decision Date: 06 March 1963
• Docket Number: Civ. 0839.
• Citation: 215 F. Supp. 39
• Parties: Harry ASHLEY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Nebraska

215 F. Supp. 39

Harry ASHLEY, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. 0839.

United States District Court D. Nebraska.

March 6, 1963.

Thomas A. Walsh, Omaha, Neb., for plaintiff.

Russell J. Blumenthal, Asst. U. S. Atty., Omaha, Neb., for defendant.

VAN PELT, Judge.

This case is brought under the Federal Tort Claims Act. Plaintiff seeks damages for injuries to his right arm and for expenses incurred in connection therewith resulting from a bite by a bear while he was on a trip with his family through Yellowstone National Park.

The questions presented can be stated as follows:

1) Is the United States of America absolutely liable to a person not a trespasser, injured in a national park by wild animals, under the doctrine relating to one who owns, keeps or harbors dangerous animals?

2) What standard of care is to be applied as to a vistor to a national park who has paid the vehicle fee required for entrance?

a) Is the standard to be applied that of the State in which the national park is located?

b) Was plaintiff an invitee or a licensee? It is not claimed that plaintiff was trespassing.

3) Does the Federal Tort Claims Act require a showing of negligence by a specific or named employee of the government as distinguished from a showing of negligence on the part of defendant's park employees generally, or some of them, in failing to adequately warn visitors to keep their car windows closed in the vicinity of bears?

a) Should the court receive in evidence an amended pamphlet (Exhibit 20) warning park visitors to roll up their windows when bears approach when action to add the warning had been initiated before Plaintiff's injuries but the amended pamphlet not received until afterward.

4) Was the failure to warn plaintiff to keep his car windows closed alone, or combined with the failure to remove or kill the bear thought to be the one that bit Mr. Ashley, the proximate cause of the injury?

5) Was plaintiff guilty of contributory negligence barring a recovery?

6) Did plaintiff assume the risk of injury by a bear

a) when he entered the park in an automobile knowing there were bears in the park; or

b) when he took sufficient Benadryl to cause sleepiness and went to sleep sitting in the front seat of his automobile on the right hand side with the window rolled down and with a part of his arm or elbow resting on the window ledge?

7) Did plaintiff suffer injury and damage, and if so, the amount of his damage? For reasons hereafter shown, we do not reach all of these questions.

The facts are not in serious dispute. Plaintiff is a rancher in northwest Nebraska. With his wife and three boys aged ten, eight and six, he went to Wyoming on a cattle buying trip. Having completed his business, they proceeded to take a trip through Yellowstone Park, at the suggestion of the boys. They drove to Cody, sometimes known as the east entrance to the park and stayed there all night. The following morning, June 29, 1958, they entered the park. Prior to leaving Cody, plaintiff, who had suffered through the night with hayfever, took a "good swallow" of Benadryl, which his wife, a registered nurse, had brought along for the boys, who were also hayfever sufferers.

At the park entrance, plaintiff, who was driving, paid the $3 vehicle admission fee. He received with the receipt (Exhibit 1) the usual bulletins consisting of a booklet about the park containing general information including comment relative to bears (Exhibit 3), and a leaflet which had the word "Dangerous" printed on its face in bold red type just above a large picture of a bear (Exhibit 2). This leaflet stated that bears cause many injuries to visitors and that regulations prohibit feeding or molesting them and directs visitors to watch them from a safe distance. The booklet, Exhibit 3, on page 3, with reference to the black bear, says that they are the visitor's greatest delight and the ranger's biggest headache, mentions their begging piteously for something to eat, says "stay away from them", refers to the park regulations prohibiting feeding, teasing or molesting them in any way, states that as many as 115 Yellowstone visitors received medical treatment in a single year for wounds resulting from feeding and familiarity with the bruin that is too close, and cautions "set your camera, take your pictures from inside the automobile, and go on your way."

These documents were read aloud by plaintiff's wife as they entered the park. As plaintiff drove, he saw some bears but did not stop. He became sleepy and pulled to the side of the road and asked his wife to drive. He then seated himself on the right of the driver in the front seat. The three boys were in the rear seat. He read the folder and leaflet which his wife had read aloud, including Exhibit 2, slid down in the seat, closed his eyes, pulled his hat somewhat over his eyes, and went to sleep.

He awoke with the car stopped, feeling severe pain in his right arm, he looked and found his elbow in a bear's mouth. The details of extracting the elbow from the bear's mouth are unimportant but he did get free from the bear. However, the arm was severely lacerated and the ulnar nerve was dangling. Neither his wife nor the three boys saw any of this occurrence. The wife first learned of it when plaintiff said to her "You've got to take me to a hospital." When she asked "Why", plaintiff said he had been bitten by a bear.

At the time of the injury the car was stopped in a line of traffic and three or four cars' lengths in front of it on the driver's side in the roadway were two bear cubs which the wife and three boys, who had "piled to the driver's side" in the back seat, were watching.

Plaintiff was given first aid at an emergency station and was then taken to a nerve surgeon at Great Falls, Montana, where he was hospitalized and his arm operated upon. He has suffered permanent injury to his right forearm and hand.

Plaintiff's argument and claim centers about the fact that Exhibits 2 and 3 did not warn plaintiff and other visitors, and they were not otherwise warned that "when bears approach, move on if you can; be sure and close your car windows." This language is not original with the court, with plaintiff or plaintiff's counsel, but is contained in Exhibit 20, which was offered in evidence and as to which the court reserved ruling. Exhibit 20 is the leaflet now used in Yellowstone in lieu of Exhibit 3. It has paragraphs relating to the black bear somewhat similar to Exhibit 3 and in part verbatim with Exhibit 3, but there has been added in heavy black italics "When bears approach, move on if you can; be sure and close your car windows." In November, 1957 the acting superintendent of Yellowstone National Park, instituted action to add on page 3 of the park folder the following: "Be sure to close your car windows when watching bears." When the 1958 revised issue of the park folder was received in August, 1958, it contained on page 3 the wording above quoted: "When bears approach, move on if you can; be sure and close your car windows."

Plaintiff's counsel concedes arguendo that the changing of conditions or making of repairs following an accident cannot be shown in evidence for the purpose of showing negligence, but says that Exhibit 20 should be received to show defendant's employees' knowledge of the inadequacy of their warning and to show that they were negligent in not warning plaintiff to roll up his windows when bears approached or when near bears. The court concludes to receive Exhibit 20, this being a trial to the Court. Builders' Steel Co. v. Commissioner, 8 Cir., 179 F.2d 377, supports this conclusion.

The evidence also shows that in the years 1953 to 1959 there were a total of 402 injuries from bears in Yellowstone National Park and that 296 of these occurred to persons inside vehicles. Carol O. Edwards, a district ranger in Yellowstone National Park since 1958, testified that any hungry bear was dangerous; that they are an animal that cannot be domesticated and no matter how much training a bear gets it is a dangerous wild animal. He stated that before June 29, 1958 he knew of a female bear with two cubs which frequented the area where Ashley was hurt, that she was increasingly more bold, and that she was less wary of human beings. He further stated that he had no knowledge of this bear's being dangerous, and that by "being bold" he meant she was less afraid of human beings.

Another ranger, Mr. Coleman, testified to the destruction of the mother of these two cubs, and the making of a report of the injury to Ashley in which he stated, "this bear was the subject of numerous aggressive actions against persons, including Chief Ranger Brown and the Ranger Patrolman and that an attempt was made to trap her which was unsuccessful, whereupon she was shot." In explaining this statement, he said that he made it to get clearance to kill the bear, and that it is not easy to establish the right to kill bears. He testified that rangers have to have a good reason before doing so; that he knew that there had been a report that the chief ranger had a ruckus with a bear in that vicinity; and that he didn't know that the bear which bit Ashley had bitten anybody else.

The above is a summary of the testimony relating to Ashley's injury and the claimed omissions of the government.

The plaintiff relies upon the familiar rule applied in most states which holds one who owns or harbors inherently dangerous animals absolutely liable for such damage and injury as they may cause. In support of his position the plaintiff cites the portion of 28 U.S.C.A. § 1346(b) which is quoted, infra, and argues that if a private citizen would be absolutely liable for harboring a bear, so is the United States. This contention must fail for several reasons. Section 1346(b) provides that the district courts shall have jurisdiction of a claim based on "the negligent or wrongful act or omission of any employee of the Government ...