Budde v. US

Decision Date23 April 1991
Docket NumberNo. C 88-1056.,C 88-1056.
Citation797 F. Supp. 731
PartiesLynn M. BUDDE, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Northern District of Iowa

Stephen J. Juergens, William C. Fuerste, Dubuque, Iowa, Richard H. Donohue, Baker & McKenzie, Chicago, Ill., for plaintiffs.

Paul C. Lillios, Asst. U.S. Atty., Cedar Rapids, Iowa, for defendant.


HANSEN, District Judge.

This matter is before the court on defendant's resisted motion for summary judgment, filed October 1, 1990; defendant's resisted motion to dismiss, filed October 1, 1990; and plaintiffs' counter-motion for summary judgment, filed October 12, 1990.


This action is brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2675. The following facts are undisputed. Plaintiffs are residents of Dubuque, Iowa. Plaintiff Lynn M. Budde is the wife of Lieutenant Commander Thomas J. Budde, United States Naval Reserve. In February 1986, Lieutenant Commander Budde was assigned to and serving at the Naval Air Station, Barbers Point, Hawaii, on a two week training mission. Mrs. Budde accompanied him. On February 19, 1986, Mrs. Budde and a friend, Wanda Gezik, were sunbathing and swimming at the officer's club pool at the Naval Air Station. Mrs. Budde was struck in the head by a piece of metal thrown by a riding mower operated by an employee of the Naval station, Robert M. Sears, who was cutting grass approximately 50 feet away.

There are other facts which are disputed. Compare defendant's statement of material facts, filed October 1, 1990, with plaintiffs' statement of undisputed material facts, filed October 12, 1990. However, the court must decide whether or not those facts are indeed disputed and whether or not the disputed facts are material under the governing law.

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Nelson v. City of McGehee, 876 F.2d 56, 57 (8th Cir.1989). The court also notes that some of the disputed "facts" are really disputes of law.


A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir.1986). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of its pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmovant "may not simply rest on the hope of discrediting the movant's evidence at trial." Matter of Citizens Loan & Sav. Co., 621 F.2d 911, 913 (8th Cir.1980). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to its case and on which it will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 668 (1988). Although "direct proof is not required to create a jury question, ... to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir.1985) (quoting Impro Products, Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1282, 79 L.Ed.2d 686 (1984)), cert. denied, 474 U.S. 1057, 106 S.Ct. 798, 88 L.Ed.2d 774 (1986). In applying these standards, the court must give the nonmoving party the benefit of all reasonable inferences to be drawn from the evidence. Krause v. Perryman, 827 F.2d 346, 350 (8th Cir.1987).

Defendant's Summary Judgment Motion

Defendant argues that the Hawaii Recreational Use Statute, Haw.Rev.Stat. §§ 520-1 et seq. (1984), absolves the United States of liability for any injury to plaintiffs. Plaintiffs agree that the court should look to the Recreational Use Statute. Plaintiffs vigorously dispute whether or not that statute absolves the United States of liability for plaintiffs' injuries.

For ease of discussion and reference, the court sets forth the pertinent portions of the statute.

The purpose of this chapter is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

Haw.Rev.Stat. § 520-1.

"Charge" means the admission price or fee asked in return for invitation or permission to enter or go upon the land.

Haw.Rev.Stat. § 520-2(4).

"House guest" means any person specifically invited by the owner or a member of the owner's household to visit at the owner's home whether for dinner, or to a party, for conversation or any other similar purposes including for recreation. ...

Haw.Rev.Stat. § 520-2(5).

Except as specifically recognized by or provided in section 520-6, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

Haw.Rev.Stat. § 520-3.

Except as specifically recognized by or provided in section 520-6, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose.
(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.

Haw.Rev.Stat. § 520-4.

Nothing in this chapter limits in any way any liability which otherwise exists:
(1) For wilful or malicious failure to guard or warn against a dangerous condition, use, or structure which the owner knowingly creates or perpetuates and for wilful or malicious failure to guard or warn against a dangerous activity which the owner knowingly pursues or perpetuates.
(2) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, ...
(3) For injuries suffered by a house guest while on the owner's premises, even though the injuries were incurred by the house guest while engaged in one or more recreational activities.

Haw.Rev.Stat. § 520-5.

The most efficient approach to the summary judgment motion is to examine each of plaintiffs' arguments why the statute does not apply.

A. "House Guest"

Section 520-5(3) of the statute does not absolve a landowner from liabilities incurred by a "house guest" while that guest is on the owner's premises and engaged in recreational activities. "House guest" is defined in § 520-2(5).

Plaintiffs state that, although the United States is not ordinarily thought of as having "house guests," the FTCA makes the United States liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Plaintiffs essentially ask the court to view the naval base and the officers' club as a "house" and consider her a "guest" at the invitation of her husband, a member of the armed forces of the United States. Defendant argues that Lynn Budde was not invited to go to Hawaii by the United States. Defendant points to Lieutenant Commander Budde's orders which do not specifically invite Mrs. Budde to accompany him on his trip to Hawaii. See orders, attached to defendant's memorandum in support of resistance, filed November 2, 1990. Defendant also points to Lieutenant Commander Budde's testimony at his deposition where he states that it was he, and not the United States, who asked his wife to join him on the trip to Hawaii. See deposition of Thomas Budde, at 216-18, attached to defendant's memorandum in resistance.

Under the statutory definition, a "house guest" must be "specifically invited by the owner or a member of the owner's household." Haw.Rev.Stat. § 520-2(5). There is no evidence that the United States, as "owner," specifically invited Mrs. Budde. In order to fit under the statute, the court would have to consider the person who did invite Mrs. Budde, Lieutenant Commander Budde, to be a member of the United States' "household."

Although the parties have not cited any case authority, the court concludes that Mrs. Budde was not a "house guest" within the meaning of the Hawaii statute. Black's Law Dictionary (5th Ed.) defines "household" as "a family living together" or as "those who dwell under the same roof and compose a family." While the United States Navy may from time to time think of itself as one large family, the United States of America is neither husband, father, mother, wife, sister, brother or any other family member to its employees. While it may furnish Bachelor Officers' Quarters for the use of its employees while on active duty for the government's convenience, it does so in its capacity as an employer and not as a home owner, and it does not occupy those quarters with its employees as a family. The United States does not have a "home"; it maintains no "household." The antithesis of a house guest is one who pays for the use of the house. In this case a charge of $6.00 per night was made for Mrs. Budde's occupancy of her husband's quarters. In short, Lieutenant Commander Budde was not a...

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    • United States
    • Hawaii Supreme Court
    • July 31, 2000
    ...See Howard v. United States, 181 F.3d 1064 (9th Cir. 1999); Palmer v. United States, 945 F.2d 1134 (9th Cir.1991); Budde v. United States, 797 F.Supp. 731 (N.D.Iowa 1991); Stout v. United States, 696 F.Supp. 538 (D.Haw. 1987); Viess v. Sea Enterprises Corp., 634 F.Supp. 226 (D.Haw.1986). Gr......
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    ...suggests a quid pro quo arrangement whereby the owner conditions entry on the land upon payment of a fee. See Budde v. United States, 797 F.Supp. 731, 735-36 (N.D.Iowa 1991) (similar "charge" provision in Hawaii recreational use statute required quid pro quo payment for use of recreational ......
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    ...6 P.3d 349, the court is unpersuaded by the AOAO's citation of earlier out-of-district case law. See, e.g., Budde v. United States, 797 F. Supp. 731 (N.D. Iowa E. Div. 1991). The court is also unpersuaded by the AOAO's argument that, because maintenance fees were charged to condominium unit......
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