Davis v. U.S., s. 82-2604

Citation716 F.2d 418
Decision Date07 October 1983
Docket Number82-2649,Nos. 82-2604,s. 82-2604
PartiesScott DAVIS, Plaintiff-Cross-Appellee, Cross-Appellant, v. UNITED STATES of America, Defendant-Cross-Appellant, Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Nancy K. Needles, Asst. U.S. Atty., Chicago, Ill., for defendant-cross-appellant, cross-appellee.

Robert B. Patterson, Drumke & Patterson, Louis G. Davidson, Chicago, Ill., for plaintiff-cross-appellee, cross-appellant.

Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

Scott Davis was injured in September 1978 while diving into Devil's Kitchen Lake in the Crab Orchard National Wildlife Refuge. The Refuge is owned and operated by the United States, and is heavily patronized--it had one and a half million visitors in 1978--especially by students at the nearby campus of Southern Illinois University (SIU). In the nine years preceding the accident there had been five diving accidents at another lake in the Refuge, Crab Orchard Lake. One of the accidents had been fatal; two others had rendered their victims quadriplegics. Knowing there was swimming in Devil's Kitchen Lake too and fearing lest the subsurface rocks in the lake cause serious diving injuries such as had occurred at Crab Orchard Lake, the government in 1975 had closed Devil's Kitchen Lake to swimming except at a beach at one end of the lake, and had posted along the Refuge's roads leading to the lake, near the entrances to the Refuge, signs of moderate size reading, "No Swimming in Devil's Kitchen Lake." Beneath each sign had been erected a slightly smaller one reading, "No Diving." Neither the size nor the color of the signs (white on blue) indicated danger, and there was no reference to the subsurface rocks or to any other possible hazard to a swimmer or diver--or, for that matter, to the fact that swimming was permitted at the beach. At first no effort was made to enforce the prohibition, but in 1976 the rangers who patrol Crab Orchard Refuge began issuing citations, accompanied by oral explanations of the danger, to people caught swimming in the lake. The government also made an effort to publicize the prohibition with local radio spots and notices in the SIU campus newspaper.

It was against this background that Davis, a 23-year-old student at SIU, went with three friends to swim in Devil's Kitchen Lake one summer afternoon. One of the young men, Ellison, had swum in Devil's Kitchen Lake before and had not noticed any hazardous rocks. As the group drove into Crab Orchard Refuge, Davis was seated on the left-hand side of the rear seat of the car and did not see the no-swimming and no-diving signs. One of the young men asked Ellison whether it was okay to swim in Devil's Kitchen Lake and he replied, "you're not supposed to but everyone does." Davis testified that he did not hear this exchange. The group parked in a gravel "widened spot" and walked to the shore. There was no one in the water and no indication that it was an authorized swimming area. Ellison inflated a rubber raft and floated out on it. Davis and another young man swam about for a short time without incident and then got out and walked some feet to a point on the shore opposite Ellison on his raft. The shore here was a stone ledge about three feet above the surface of the lake. The lake seemed clear to Davis, but he also testified, "There was glare from the sun. So that if you looked down at the water the sun was reflected into your eyes." Davis and his companion decided to swim out to Ellison and tip him into the water from his raft. They took running dives and while in the air Davis dropped his arms to his side. He landed head first on a rock outcropping that protruded from the bottom of the lake to a point about a foot and a half below the surface, and broke his neck. His companion struck the same outcropping but just scraped his chest.

The accident rendered Davis a quadriplegic. He brought this suit for damages against the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq. The district court determined his damages to be $4,047,000, and the amount is not contested. The district court also determined that the accident was due 75 percent to Davis's own negligence and 25 percent to that of the United States, and therefore awarded him $1,012,000. He has appealed, contending that he is entitled to his full damages or at least to more than 25 percent; the government has cross-appealed, contesting liability.

We think it clear to begin with that under Illinois law (which governs the substantive issues in this case, see 28 U.S.C. Sec. 1346(b), because the accident occurred in Illinois) the government was at least negligent in failing to warn the public of the danger of subsurface rocks more effectively than it did. The danger was not obvious, as in our recent decision in Kohl v. United States, 712 F.2d 286, 290 n. 1 (7th Cir.1983). From the photographs in the record Devil's Kitchen Lake, despite its faintly ominous name, presents a placid, unthreatening appearance. Although the shoreline is rocky, the lake looks deep and there is no indication that there might be sinister stilettoes jutting up from its bottom. Even to one swimming in the lake there is no suggestion of danger, for Davis and his companion swam about, and Ellison floated about on his rubber raft, for some minutes--how long is unclear--without noticing any subsurface rocks. The "No Swimming" sign was not much good as a warning of danger; the prohibition it laconically announced could just as well have been intended to protect the lake from swimmers as vice versa. The "No Diving" sign was a little better--for what could be its purpose but to warn of danger?--but still left too much to the imagination. For rangers to give oral warnings to people they caught swimming or diving was fine as far as it went, but did Davis no good, for no ranger saw these young men swimming; nor had they gotten the message by word of mouth from fellow students who had been caught, or from the occasional radio spots or occasional notices in the campus newspaper.

The history of diving accidents at Crab Orchard Lake showed that people were diving despite the prohibition against swimming and diving and were getting seriously hurt doing so; and the government was aware of unauthorized swimming, and similar danger, at Devil's Kitchen Lake. It would not have cost much to amend the "No Diving" sign to add "Danger: Subsurface Rocks," and to have posted these signs where swimmers could be expected, such as at the gravel widened spot where Davis and his friends parked their car, as well as at the entrances to the Refuge. Of course the cheapness of a precaution is not the only consideration in deciding whether its omission is negligent; the benefit from the precaution must be commensurate. See Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231 (1967); Bezark v. Kostner Manor, Inc., 29 Ill.App.2d 106, 111, 172 N.E.2d 424, 426-27 (1961); Albers v. Church of the Nazarene, 698 F.2d 852, 857 (7th Cir.1983). In this case it would have been. In view of the gravity of diving accidents, their incidence at the nearby Crab Orchard Lake, and the possibility, well illustrated by this case, that swimmers might simply be oblivious to the danger of subsurface rocks--especially since the refraction of light in water can cause a person to misjudge depth--signs such as we have described might well have been highly beneficial. If they had been posted and had prevented this accident, their benefits would have been measured in the millions of dollars and their costs in the thousands or less. Even if such signs would have reduced the probability of the accident by only one percent, they would have been a bargain in an expected-value sense, for one percent of $4 million is $40,000, which must be much more than what the signs would have cost to buy, install, and maintain. And this understates the benefits of the signs, since other potential accident victims, not just Davis, would have been warned.

But under the common law of Illinois it is not a tort negligently to injure a trespasser. Trout v. Bank of Belleville, 36 Ill.App.3d 83, 86, 343 N.E.2d 261, 268 (1976); Votava v. Material Service Corp., 74 Ill.App.3d 208, 212, 30 Ill.Dec. 113, 116, 392 N.E.2d 768, 771 (1979). While the district court found that Davis was not a trespasser when he was injured, the court did not explain its finding; and we think Davis was a trespasser as a matter of law. The fact that he may not have known he was a trespasser is irrelevant (it is unclear whether he knew, since the district court made no finding on whether, despite his denial, Davis had heard Ellison acknowledge that swimming was forbidden). See DuMond v. City of Mattoon, 60 Ill.App.2d 83, 87, 207 N.E.2d 320, 322 (1965) ("The original ordinance prohibited fishing in this area .... It is, of course, fundamental that everyone within the city is charged with constructive knowledge of its ordinances.... The implication of an invitation to fish there dies aborning"); McAllister v. Jung, 112 Ill.App. 138, 147 (1904) (dictum); Prosser, Handbook of the Law of Torts 74 (4th ed. 1971). Although the signs the government posted may not have been very good as warning signs, they were unequivocally prohibitory, and thus prevent Davis (whether or not he saw them) from claiming the status of an implied invitee under Beccue v. Rockford Park Dist., 94 Ill.App.2d 179, 187-88, 236 N.E.2d 105, 109 (1968), a case where no signs had been posted prohibiting entry to the area where the injury occurred. An invitee loses his status and becomes a trespasser "by going to a portion of the premises to which the invitation does not extend." Avery v. Moews Seed Corn Co., 131 Ill.App.2d 842, 845, 268 N.E.2d 561, 564 (1971); see also DuMond...

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