Ewell v. U.S., 84-1220

• Decision Date: 07 October 1985
• Docket Number: No. 84-1220,84-1220
• Citation: 776 F.2d 246
• Parties: Tracy EWELL, Plaintiff-Appellant, v. The UNITED STATES of America, the Bureau of Land Management of the United States Department of Interior, Glen Otten, Leaun Otten, Ella Rae Otten, Utah County, a body politic, and Gordon Swan d/b/a Swan's Market, Defendants- Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 246

776 F.2d 246

Tracy EWELL, Plaintiff-Appellant, v. The UNITED STATES of America, the Bureau of Land Management of the United States Department of Interior, Glen Otten Leaun Otten, Ella Rae Otten, Utah County, a body politic and Gordon Swan d/b/a Swan's Market, Defendants- Appellees.

No. 84-1220.

United States Court of Appeals Tenth Circuit.

Oct. 7, 1985.

Jackson Howard, Howard, Lewis & Petersen, Provo, Utah (Richard B. Johnson with him on brief), for plaintiff-appellant.

Joseph W. Anderson, Asst. U.S. Atty., Salt Lake City, Utah (Brent D. Ward, U.S. Atty. with him on brief), for defendant-appellee, U.S.

Before HOLLOWAY, Chief Circuit Judge, SEYMOUR, Circuit Judge, and BALDOCK, District Judge ^*.

BALDOCK, District Judge.

This is an appeal from an order of the district court granting summary judgment in favor of the defendant-appellee, the Bureau of Land Management of the United States Department of Interior. Plaintiff brought this action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-80. The plaintiff, Tracy Ewell, was injured on federal land when the motorcycle on which she was a passenger was driven off an embankment. The injury occurred at the West Mountain Gravel Pit, which is located west of Payson, Utah, on land administered by Bureau of Land Management. The land has been owned by the United States since 1848, but the gravel pit has been operated by Utah County. In her complaint, plaintiff alleged that the federal government failed to do the following: inspect the premises, cut down large embankments left from excavation, post warning markers, erect barriers, prevent vehicular traffic, and otherwise failed to keep the premises safe.

The Federal Tort Claims Act provides the general exception to the prohibition of suits against the federal government by making it liable for money damages "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. Sec. 1346(b). The terms of the government's consent to be sued define the court's jurisdiction. Minnesota v. U.S., 305 U.S. 382, 388, 59 S.Ct. 292, 295, 83 L.Ed. 235 (1938). This waiver of immunity should be neither extended nor narrowed beyond that which Congress intended. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979).

To determine the liability of the federal government under the FTCA, it is necessary to apply the law of the place where the alleged negligence occurred. 28 U.S.C. Sec. 1346(b); Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 590, 7 L.Ed.2d 492 (1962). The parties agree that the law of the State of Utah is applicable. In granting summary judgment, the district court concluded that the land in question was subject to the Utah Limitation of Land Owner Liability Act, Utah Code Ann. Secs. 57-14-1 to 57-14-7 (Supp.1983). The Act provides, in part, as follows: "an owner of land owes no duty of care to keep the premises safe for entry or use by any person using the premises for any recreational purpose, or to give any warning of a dangerous condition, use, structure, or activity on those premises to those persons." Sec. 57-14-3. The statute does not bar liability, however,

(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity or for deliberate, willful, or malicious injury to persons or property; or

(2) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land or use the land for any recreational purpose, except that in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease is not a charge within the meaning of this section.

Sec. 57-14-6.

The plaintiff concedes that several elements of the Utah statute which would preclude liability are satisfied: the land in question is located in Utah; she was involved in a recreational activity; and no fee was charged for entry to the land. She asserts, however, that the federal government is not immunized for two reasons: the Utah statute does not apply to public entities and the government's acts or omissions were willful or malicious.

The Utah statute is based on a model act developed by the Council of State Governments. Plaintiff cites the preamble to the model act, 24 Council of State Governments, Suggested State Legislation 150-52 (1965), to support her contention that the statute applies exclusively to private landowners. The preamble to the model act is not contained in the Utah statute, and there is no express language in the statute which would restrict its application to public entities. Although there is a split of authority in other jurisdictions with similar statutes, the Utah Supreme Court has not decided whether this statute applies to land publicly controlled.

How the Utah Supreme Court might construe the statute is not relevant to the present inquiry. The Federal Tort Claims Act makes the United States liable only to the extent that a private person would be liable under similar circumstances. It is clear that the Utah statute applies to private landowners and should be equally applicable to the United States. Simpson v. United States, 652 F.2d 831, 833 (9th Cir.1981); Jones v. United States, 693 F.2d 1299, 1301 (9th Cir.1982).

In the Tort Claims Act, Congress has expressly stated that the federal government's liability is to be determined by the private person standard. Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1955). In analyzing the legislative purpose of this language, we must start with the ordinary meaning of the words used. It is difficult to conceive of any more precise language Congress could have used to require the application of the private person standard than the words it did use. The legislative history also supports the ordinary interpretation of these words: "[t]he...