Blair v. United States

• Decision Date: 09 June 1977
• Docket Number: Civ. No. R-75-195 BRT.
• Citation: 433 F. Supp. 217
• Parties: Ellen BLAIR, Plaintiff, v. UNITED STATES of America, Does I thru V, and Doe Corporations I thru V, Defendants.
• Court: U.S. District Court — District of Nevada

433 F. Supp. 217

Ellen BLAIR, Plaintiff, v. UNITED STATES of America, Does I thru V, and Doe Corporations I thru V, Defendants.

Civ. No. R-75-195 BRT.

United States District Court, D. Nevada.

June 9, 1977.

Julian C. Smith, Jr., Ltd. by Samuel S. Wardle, Carson City, Nev., for plaintiff.

Lawrence J. Semenza, U.S. Atty. by Samuel Coon, Asst. U.S. Atty., Reno, Nev., for defendants.

ORDER

BRUCE R. THOMPSON, District Judge.

Plaintiff instituted this wrongful death action against the United States under the Federal Tort Claims Act after plaintiff's decedent drowned in a pool constructed by private persons on land under the care and operation of the Bureau of Land Management. Defendant has now filed a motion for summary judgment relying on the Nevada Sightseer Statute, NRS 41.510. It must therefore be determined if the Sightseer Statute precludes liability, for plaintiff may recover under the Federal Tort Claims Act only if she has a right of recovery under Nevada law.

The facts of the instant case, as gleaned from an uncontroverted record, indicate that plaintiff's decedent, an 11-year-old boy, traveled approximately 25 miles to use the facility. After swimming in the pool for a period of time, his body was thereafter found on the bottom of the pool, a victim of drowning.

NRS 41.510 provides as follows:

"1. An owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others for hunting, fishing, trapping, camping, hiking, sightseeing, or for any other recreational purposes, or to give warning of any hazardous condition, activity or use of any structure on such premises to persons entering for such purposes, except as provided in subsection 3 of this section.

"2. When an owner, lessee or occupant of premises gives permission to another to hunt, fish, trap, camp, hike, sightsee, or to participate in other recreational activities, upon such premises:

(a) He does not thereby extend any assurance that the premises are safe for such purpose, constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted, except as provided in subsection 3 of this section.

(b) Such person does not thereby acquire any property rights in or rights of easement to such premises.

"3. This section does not limit the liability which would otherwise exist for:

(a) Willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity.

(b) Injury suffered in any case where permission to hunt, fish, trap, camp, hike, sightsee, or to participate in other recreational activities, was granted for a consideration other than the consideration, if any, paid to the landowner by the state or any subdivision thereof.

(c) Injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike, sightsee, or to participate in other recreational activities was granted, to other persons as to whom the person granting permission, or the owner, lessee or

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