Autery v. US
| Decision Date | 12 March 1992 |
| Docket Number | Civ. A. No. 90-0884-P-S. |
| Citation | 786 F. Supp. 944 |
| Parties | Nell D. AUTERY, as Administratrix of the Estate of Roy Franklin Autery, deceased, Plaintiff, v. UNITED STATES of America, Defendant. Charlotte SCHREINER, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
Joseph M. Brown, Jr., David G. Wirtes, Jr., Cunningham, Bounds, Yance, Crowder & Brown, Mobile, Ala., for plaintiff.
William R. Sawyer, Asst. U.S. Atty., Mobile, Ala., for defendant.
This matter was heard by the court sitting without a jury on January 30-31, 1992. The parties announced ready for trial, opening statements were made, evidence was presented, and closing arguments were made.
This case involves an accident that occurred in a national park and arises under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 hereinafter "FTCA". Roy Franklin Autery was killed in the accident, and Charlotte Schreiner — a passenger in Mr. Autery's car at the time of the accident — was injured in the accident.
Following the accident, proper and timely administrative claims were filed on behalf of both Autery and Schreiner, as is required by 28 U.S.C. § 2675(a). Autery's administrative tort claim was for $500,000.00, and Schreiner's was for $50,000.00. Plaintiffs' exhs. P, O. Both claims were denied. Id.
A claimant under the Federal Tort Claims Act is ordinarily restricted in the amount he or she may recover upon a finding of governmental liability to the amount specified in the administrative claim, "except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim." 28 U.S.C. § 2675(b).
On November 26, 1990, Mr. Autery's estate filed suit against the United States, claiming that negligence on the part of the United States caused Mr. Autery's death. Doc. 1. On that same day, Ms. Schreiner filed a separate suit against the United States, claiming that negligence on the part of the United States caused her injuries. Doc. 1A. The cases were consolidated on March 4, 1991. Docs. 12 & 12A.
On December 5, 1991, the plaintiffs filed second amended complaints, which added a claim that the death and injuries were caused by wantonness on the part of the United States. Docs. 37-38. These claims originally sought punitive damages, but plaintiffs' counsel later dropped the punitive damage claims. See Doc. 59 at 3 n. 1.
The basic facts concerning the accident in this case are not disputed. The accident occurred on July 5, 1989, in the Great Smoky Mountain National Park "GSMNP" on U.S. Highway 441, which is maintained and operated by the United States. Ray Franklin Autery was driving his 1989 Camaro south on U.S. Highway 441, also known as the Newfound Gap Road, in a part of GSMNP that is in the state of North Carolina. Ms. Schreiner was a passenger in the car, and the vacationing couple was approximately two hundred yards from the Oconaluftee Visitor's Center when a twin trunked black locust tree fell into the roadway. One trunk of the tree — the root of which was located approximately forty-five feet up the west bank of the road — struck Mr. Autery's car, instantly killing him and injuring Ms. Schreiner.
Plaintiffs contend that the United States was negligent in one or more of the following ways:
Doc. 24 at 5-6. The plaintiffs also claim that the defendant's actions were wanton with regard to the failures alleged above. Ms. Schreiner claims that she suffered mental anguish because of the government's alleged negligent and/or wanton conduct.
On September 4, 1991, the defendant filed a motion for summary judgment on the grounds that Schreiner and Autery hereinafter "plaintiffs" were licensees as a matter of North Carolina law, and as such the United States was only under a duty not to willfully injure them or to wantonly or recklessly expose them to danger. Doc. 23 at 6-9. The United States claims that it did not breach this duty. Id. at 9-10.1
The plaintiffs assert that even if they were licensees, the United States voluntarily assumed a higher duty toward them by undertaking a tree hazard plan and by classifying park visitors as invitees rather than licensees. Doc. 42 at 7-8.
In its answer to the plaintiffs' second amended complaint (Doc. 45) and its supplemental memorandum in support of its motion for summary judgment (Doc. 49), the defendant raises as a defense the "discretionary function exception" to the Federal Tort Claims Act, 28 U.S.C. § 2680(a).
Pursuant to 28 U.S.C. § 636(b)(1)(B), the motion for summary judgment was referred to the Magistrate Judge, who on January 24, 1992, issued a report and recommendation. Doc. 59. The Magistrate Judge, in recommending that the motion for summary judgment be denied, found that "no reasonable range of choices existed with respect to the Park Services' inaction, and, as such, the discretionary function doctrine of 28 U.S.C. § 2680(a) is inapplicable." Id. at 12. The Magistrate Judge also found that, as a matter of North Carolina law, plaintiffs were licensees and not invitees. Id. at 14. The United States filed objections to the Magistrate Judge's Report and Recommendation on January 28, 1992. Doc. 60.
On the day of the trial, before testimony was taken and after due and proper consideration of all portions of this file deemed relevant to motion for summary judgment, including the objections of the United States and the arguments of counsel, the court advised counsel that the Report and Recommendation of the Magistrate Judge as to the status of the plaintiffs as licensees was adopted as the opinion of this court, as is more fully explained below.
After due consideration of the testimony and demeanor of the witnesses at trial and of the pleadings, exhibits, and arguments offered by both parties, this court makes the following findings of fact and conclusions of law.
A. This accident occurred within the State of North Carolina along U.S. Highway 441 also known as Newfound Gap Road in the Great Smoky Mountains National Park which is owned and operated by the defendant, United States of America.
B. Roy Franklin Autery was killed instantly on July 5, 1989 at approximately 9:55 a.m. as he was driving south on the Newfound Gap Road approaching the Oconaluftee Visitor's Center when two (2) locust trees located at forty-five (45) feet up the west bank of the road fell into the roadway.
C. Charlotte Schreiner was a passenger in the vehicle driven by Mr. Autery and was injured as well in the accident.
D. Newfound Gap Road is a two-lane road traveling through a nearly straight segment where the accident occurred. The traffic was generally heavy for the time of day due to increased July 4th holiday visitation.
E. The accident occurred near a road sign which states: "35 Miles Per Hour, Congested Area."
F. At the time of the accident the sky was cloudy, but dry. There was no significant wind. The temperature was moderate.
G. Roy Franklin Autery was pronounced dead at the scene of the accident.
H. That the death certificate attached as Exhibit A to Plaintiffs' Request for Admissions filed April 4, 1991 is a true and correct copy of the death certificate issued by the appropriate authorities concerning the cause of death of Roy Franklin Autery.
I. That the list of general expenses attached as Exhibit B to the Request for Admissions filed April 4, 1991 is a true and correct copy of the expenses incurred by the Estate of Roy Franklin Autery in his burial.
J. That the list of medical expenses, with supporting documents, identified as Exhibit C in Plaintiffs' Request for Admissions of April 4, 1991 is a true and correct list of medical expenses which were reasonably and necessarily incurred by plaintiff, Charlotte Schreiner, concerning her injuries suffered in the accident made the basis of this suit.
K. That the medical records concerning the treatment received by Charlotte Schreiner by Dr. Provost at C.J. Harris Community Hospital, 59 Hospital Road, Sylva, North Carolina 28779, and attached as Exhibit D to Plaintiffs' Request for Admissions filed April 4, 1991 are true and correct copies of the medical records maintained at that institution concerning Ms. Schreiner's treatment.
L. That the medical records from the University of South Alabama Medical Center attached as Exhibit E to the Plaintiffs' Request for Admissions of April 4, 1991 are true and correct copies of medical records maintained by that institution concerning the care and treatment of Charlotte Schreiner as a result of the injuries made the basis of this suit.
M. That the divorce decree attached as Exhibit F to the Request for Admissions of April 4, 1991 is a true and correct copy of the...
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