DiMella v. Gray Lines of Boston, Inc., 87-1209

• Decision Date: 14 September 1987
• Docket Number: No. 87-1209,87-1209
• Citation: 836 F.2d 718
• Parties: Diane DiMELLA, Plaintiff, Appellant, v. GRAY LINES OF BOSTON, INC., and Herb Edmunds, Defendants, Appellants. United States of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 718

836 F.2d 718

Diane DiMELLA, Plaintiff, Appellant, v. GRAY LINES OF BOSTON, INC., and Herb Edmunds, Defendants Appellants United States of America, Defendant, Appellee.

No. 87-1209.

United States Court of Appeals First Circuit.

Heard Sept. 14, 1987.

Decided Jan. 13, 1988.

Roberta Thomas Brown with whom Blake J. Godbout, Boston, Mass., was on brief, for appellants.

Nicholas C. Theodorou, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., Acting U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN, ALDRICH and TORRUELLA, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

This case, in its present aspect a federal tort claim against the United States, 28 U.S.C. Sec. 2671 et seq., was heard in a somewhat bastard form, part way between a formal motion to dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6), and, informally, a motion for summary judgment, not filed. While in exceptional instances this amalgam can be proper, see King v. Williams Industries, Inc., 565 F.Supp. 321, 323 (D.Mass.1983), aff'd per curiam, 724 F.2d 240 (1st Cir.), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984), the case began badly, a motion to dismiss being thoroughly out of order, and never recovered. We reverse the dismissal.

Plaintiff appellant DiMella was injured while alighting from a sightseeing bus to visit the Charlestown Navy Yard, now a tourist attraction and home of the U.S.S. CONSTITUTION and the U.S.S. Constitution Museum. She sued the bus operator and its driver, and, by a separate action, the United States. The two cases were subsequently consolidated. After the government's motion to dismiss as against DiMella was allowed, the other defendants sought to file crossclaims against it late. Their motions were denied, and, plaintiff having settled and voluntarily dismissed as against those defendants, the principal question now before us is her appeal from the court's allowance of the government's motion. ¹

The government's reliance was upon the Massachusetts recreational use statute, Mass. G.L. c. 21, Sec. 17C, which provides, in material part,

An owner of land who permits the public to use such land for recreational purposes without imposing a charge or fee therefor ... shall not be liable to any member of the public who uses said land for the aforesaid purposes for injuries to person or property sustained by him while on said land in the absence of wilful, wanton or reckless conduct by the owner.... (emphasis supplied)

So far as the motion to dismiss was concerned, this reliance was quite inappropriate. The government having, by the F.T.C.A accepted tort liability in accordance with local law, the statute is an affirmative defense, to be pleaded by defendant, Fed.R.Civ.P. 8(c); Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), and could not be raised by a motion to dismiss unless the complaint itself supplied the basis. See Quiller v. Barclays American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.1984), cert. denied, 476 U.S. 1124, 106 S.Ct. 1992, 90 L.Ed.2d 673 (1986). Rather than doing so, the complaint went out of its way to assert that plaintiff was a "paying patron at the Charlestown Navy Yard." Even when plaintiff conceded the factual accuracy of a statement initiated in the government's memorandum,--that the "Yard is open to the general public free of charge,"--this did not, as we shall develop, blood-let the complaint as a matter of law.

At the hearing on the motion, instead of requesting a full record by way of a motion for summary judgment, the court, doubtless in the interests of expedition, decided to proceed on statements of counsel. This resulted in a record which, even if correct, was not necessarily complete. From the court's standpoint plaintiff lost simply because public entry into the Yard was free, "and there are many things to do there besides visit the museum (such as tour 'Old Ironsides')." How many other things, if, indeed, any, did not appear. Nor was there any contradiction of the possibility that an appreciable number of visitors, even plaintiff herself, might be interested only in the museum. The content of the museum was not shown; it might well attract scholars who had no other concern. The court, however, met all possible problems by saying that plaintiff's statement that "she was on her way to the museum, for which she would have had to pay an admission, ... cannot be determinative."

Before dealing with this aspect, we dispose of plaintiff's attempts to avoid the Massachusetts statute. We do not accept her claim that the statute does not apply to the United States since it fails to apply to, viz., exempt, Massachusetts governmental instrumentalities. Assuming this last to be so, and it is by no means clear, it is a false issue. The extent that the federal government has accepted liability under the F.T.C.A. is "if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Whatever liability the Commonwealth may have chosen to assume for itself as a matter of governmental policy has no bearing on the liability of Massachusetts private persons, the standard the federal government accepted. For the opposite side of this coin, see United States v. Muniz, 374 U.S. 150, 164-65, 83 S.Ct. 1850, 1858-59, 10 L.Ed.2d 805 (1963); Raymer v. United States, 660 F.2d 1136 (6th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2009, 72 L.Ed.2d 466 (1982).

Plaintiff's suggestion that the statute applies only to rural, and not to urban areas, calls for no...