Ashley v. United States
| Decision Date | 22 January 1964 |
| Docket Number | No. 17416.,17416. |
| Citation | 326 F.2d 499 |
| Parties | Harry ASHLEY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thos. A. Walsh, of Wear, Boland, Mullin & Walsh and A. Lee Bloomingdale, Omaha, Neb., made argument for the appellant and filed brief.
David L. Rose, Atty., Civil Division, Dept. of Justice, Washington, D. C., made argument for the appellee and John W. Douglas, Asst. Atty. Gen., Civil Div., Morton Hollander, Atty. Dept. of Justice, Washington, D. C., and Theodore L. Richling, U. S. Atty., Omaha, Neb., were with him on the brief.
Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.
Plaintiff (appellant) filed this suit in the United States District Court for the District of Nebraska under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671-2680, to recover damages for personal injuries received when he was bitten by a bear while a visitor in Yellowstone National Park in the State of Wyoming. From an adverse judgment plaintiff has appealed.
The facts are relatively simple and mainly undisputed. They are exhaustively and accurately detailed in the trial court's (Judge Van Pelt) memorandum opinion which embodies his findings of fact and conclusions of law. Ashley v. United States, D.C., 215 F.Supp. 39 (1963). Here, it will suffice to say that appellant was sleeping on the front seat of his automobile to the right of his wife (driver), and had his right arm resting on the sill of the open window when a bear bit the elbow of his right arm, causing him to sustain serious and permanent injuries.
Numerous issues were presented to and resolved by the trial court. In summary, the trial court found: (1) Under the facts involved, the doctrine which holds one who owns, keeps, or harbors inherently dangerous animals absolutely liable for such damage and injury as they may cause is inapplicable; (2) The applicable standard in determining the degree of care which the Government owed appellant is that which is owed to an invitee under Wyoming law; (3) Under such law, the Government owed appellant the duty to use ordinary and reasonable care to keep the park reasonably safe for his visit and to warn him of any hidden danger; (4) Appellant's injury was not proximately attributable to a failure of the Government to exercise ordinary care, i.e. — failure to warn appellant to keep his automobile windows closed alone, or combined with failure to remove or kill the bear thought to be the one that bit appellant was not the proximate cause of appellant's injury; (5) Handling of a troublesome bear, which had not shown an inclination to harm people without first having been provoked, involves the exercise of discretion on the part of Government employees, and such discretion — even if abused — "and the court does not believe that it was in the instant case," cannot be made the basis of a claim under the Federal Tort Claims Act. 28 U.S.C.A. § 2680 (a). Since the court found no actionable negligence on the part of the...
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Blessing v. United States
...1963) (field decision how to handle a troublesome bear in a national park protected by discretionary function exception), aff'd, 326 F.2d 499 (8th Cir. 1964), with Downs v. United States, 522 F.2d 990 (6th Cir. 1975) (FBI agent's decision how to handle an airplane hijacking not a protected ......
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Allen v. United States, Civ. No. C 79-0515.
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Casper v. Charles F. Smith & Son, Inc.
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