Gard v. U.S.

• Decision Date: 08 February 1979
• Docket Number: No. 77-1484,77-1484
• Parties: Douglas S. GARD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1230

594 F.2d 1230

Douglas S. GARD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 77-1484.

United States Court of Appeals, Ninth Circuit.

Feb. 8, 1979.

Rehearing Denied April 19, 1979.

Michael G. Briskie, Mountain View, Blum, Lull, Niland & Bell, San Francisco, Cal., for plaintiff-appellant.

James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before MOORE, ^* WRIGHT and CHOY, Circuit Judges.

PER CURIAM.

Plaintiff Gard appeals from the district court's granting of defendant's summary judgment motion in his personal injury action against the United States. We affirm.

I. Statement of the Case

During their Christmas vacation from college in 1972, Gard and three friends took a car tour through Nevada. The four students were between 18 and 19 years old. While driving, the men saw an A-frame apparatus covering an old mine on federal property approximately 200 yards from the highway. The mine had a vertical shaft, and Gard and two of his friends descended a wooden ladder to the bottom. It was apparent that the mine was old and deserted and had not been kept in repair.

After leaving the A-frame mine, the men decided to explore other mines in the area. The four entered the mine in which Gard's accident occurred. It was as far from the road as the A-frame mine, but not as noticeable. It was also old, deserted, and in ill-repair. The four men entered the mine in single file. After a while, their only flashlight was passed to the third man in line. About 100 feet into the mine they discovered a horizontal shaft. While the third man retained the flashlight, Gard took the lead and proceeded down the horizontal tunnel. Almost immediately he either tripped or stepped into a vertical shaft and fell to the bottom. The impact of the fall caused Gard to become a permanent quadriplegic.

Gard brought suit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671. Gard claimed that the Government had been negligent in not protecting the public from the dangerous mine. The Government moved to dismiss the case for failure to state a claim, or in the alternative, for summary judgment. After a hearing and after affording the parties more time for discovery, the district court granted the Government's motion for summary judgment. Gard v. United States, 420 F.Supp. 300 (N.D.Cal.1976).

II. Standard of Review

This court has noted the standard for reviewing a granting of summary judgment:

First, is there any genuine issue as to any material fact? Second, if there is no genuine issue of fact, then viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, is the movant entitled to prevail as a matter of law. (sic)

MGM Grand Hotel, Inc. v. Imperial Glass Co., 533 F.2d 486, 488 (9th Cir.), Cert. denied, 429 U.S. 887, 97 S.Ct. 239, 50 L.Ed.2d 168 (1976); See Loya v. Immigration & Naturalization Service, 583 F.2d 1110, 1114 (9th Cir. 1978). The district court held that summary judgment was appropriate because as a matter of law Gard could not recover even when the facts were considered in the light most favorable to him. We agree.

III. Effect of Nevada Sightseer Statute

The Federal Tort Claims Act, under which Gard sues, allows plaintiffs to recover damages against the Government for injury

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. § 1346(b). Noting that the parties agreed that Gard was engaged in "sightseeing" and "recreational" activities when injured and that he had not received permission from the United States to enter the mine, the district court referred to Nevada Revised Statutes § 41.510(1):

An owner . . . of premises owes no duty to keep the premises safe for entry or use by others for . . . 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.

Subsection 3 provides in relevant part:

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.

The district court concluded:

Thus, plaintiff cannot recover damages under Nevada law, and, hence, the Federal Tort Claims Act, unless he can show that a federal employee willfully or maliciously failed to guard or warn against the danger presented by the mine.

420 F.Supp. at 302 (footnote omitted).

On appeal, Gard contends that § 41.510 does not apply to the Government. He argues first that the purpose of § 41.510 is to encourage landowners to open up their land to recreational use and that such a rationale does not apply to the Government. We disagree. Gard does not suggest that the Government could not completely close various federal lands to public use if it felt its potential tort liability was too great. Thus the principle of encouraging landowners to open their land by limiting potential tort liability applies with equal force to the Government as to other landowners.

Second, Gard refers to a Wisconsin decision holding that the Wisconsin sightseer statute did not apply to a municipality. Goodson v. Racine, 61 Wis.2d 554, 213 N.W.2d 16, 19 (1973). The Wisconsin Supreme Court noted that "(t)he legislative intent of the statute is obvious" in limiting its scope to private individuals. Id. By contrast, where statutes have not been explicitly limited to private individuals, the federal courts have held that they may apply to the United States under the Federal Tort Claims Act. See, e. g., Blair v. United States, 433 F.Supp. 217, 219 (D.Nev.1977) (§ 41.510); Hamilton v. United States, 371 F.Supp. 230, 233-34 (E.D.Va.1974). Such application is consistent with Congress' direction in § 1346(b) that the Government should be treated as would be a "private person" under applicable state law. See Martin v. United States, 546 F.2d 1355, 1361 (9th Cir. 1976), Cert. denied, 432 U.S. 906, 97 S.Ct. 2950, 53 L.Ed.2d 1078 (1977); Smith v. United States, 546 F.2d 872, 878-79 (10th Cir. 1976); Hamilton, 371 F.Supp. at 233.

We conclude that the district court properly applied the Nevada sightseer statute and that Gard could recover only by showing willful or malicious failure to guard or warn.

The district court rejected Gard's assertion that the required willfulness could be found in the Government's failure to put warnings or a fence around the mine. The district court noted:

The Nevada legislature clearly envisioned limiting liability under its statute to landowners who intentionally allow dangerous structures to remain unguarded and without warning, with the knowledge that someone will be injured. Under Nevada law, in order for a defendant to commit a willful injury, " 'there must be design, purpose and intent to do wrong and inflict the injury * * *.' " Crosman v. Southern Pacific Co., 44 Nev. 286, 194 P. 839, 843 (1921); Rocky Mountain Produce Trucking Co. v. Johnson, 78 Nev. 44, 369 P.2d 198, 201 (1962). Similarly, malicious acts are those done intentionally without justification or excuse. See Linkhart v. Savely, 190 Or. 484, 227 P.2d 187, 197 (1951).

420 F.Supp. at 302. Applying this standard the court found:

The undisputed facts of this case fail to show that defendant or any of its employees willfully or maliciously failed to guard or warn against the mineshaft that caused plaintiff's injuries. There is no evidence that any employee of the United States had ever even inspected the mine. (An affidavit from the Supervisory Mining Engineer for the Nevada State Office of the United States Bureau of Land Management) stated that in the 10 years he has overseen the Bureau's mineral management program in Nevada, he has never noticed any activity or persons in the vicinity of the two mines involved here, has never received any other expression of concern about the mines' safety from members of the public or federal employees, and has never heard of any other accident involving either mine. He also states that to his knowledge no Bureau of Land Management employee had even been in either mine before the accident in this case.

Id. at 302-03.

Gard responds that the district court employed too strict a test of willfulness. He argues that the court should have limited Crosman's definition of willful to the context of willful injury and not willful failure. He asks that this court adopt what he considers the superior definition of willfulness employed in a decision of the Georgia Court of Appeals, reversed by the Georgia Supreme Court on other grounds. McGruder v. Georgia Power Co., 126 Ga.App. 562, 191 S.E.2d 305 (1972), Rev'd, 229 Ga. 811, 194 S.E.2d 440 (1972). Gard claims that willfulness according to the McGruder definition can be proved.

Gard, however, ignores the congressional instruction that under the Federal Tort Claims Act, "the law of the place where the act or omission occurred" should apply. 28 U.S.C. § 1346(b); See Martin, 546 F.2d at 1361; Smith, 546 F.2d at 878-79; Blair, 433 F.Supp. at 219; Hamilton,371 F.Supp. at 233. Thus the district court could not choose to follow whatever law it felt to be most enlightened. And Crosman did not limit its definition of willfulness to willful injury. In Crosman, a plaintiff sought to establish that the defendant had acted willfully or wantonly in failing to protect plaintiff from injury on defendant's railroad tracks, so as to circumvent the defense of contributory negligence. After adopting "a general...