Garfield v. United States

• Decision Date: 18 February 1969
• Docket Number: No. 67-C-144.,67-C-144.
• Citation: 297 F. Supp. 891
• Parties: John S. GARFIELD and Betty M. Garfield, and John W. Wiseman and Audrey Wiseman, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

297 F. Supp. 891

John S. GARFIELD and Betty M. Garfield, and John W. Wiseman and Audrey Wiseman, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 67-C-144.

United States District Court W. D. Wisconsin.

February 18, 1969.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kenneth H. Conway, Jr., Baraboo, Wis., for plaintiffs.

Edmund A. Nix, U. S. Atty., John E. Clarke, Asst. U. S. Atty., Madison, Wis., for defendant.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is an action, instituted under the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., for damages for personal injuries. Plaintiffs seek to rest liability on the alleged negligence of defendant.

The incident from which this action arose occurred within the State of Wisconsin and, therefore, under 28 U.S. C. § 1346(b), the law of the State of Wisconsin governs this action. The government has filed a motion for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, on the ground that it is not liable for negligence under the facts as alleged in the complaint. Specifically, the government relies on § 29.68, Wis.Stats., entitled "Liability of Landowners".

The incident from which this action arose may fairly be described as bizarre. The complaint alleges that on October 24, 1965, plaintiffs and approximately fourteen other persons (hereinafter plaintiffs' group) entered upon the Camp McCoy Military Reservation, located in Monroe County, Wisconsin, at the invitation of defendant, for the purpose of squirrel hunting, picnicking, and hiking in a part of the reservation referred to as a public area; that prior to said date plaintiffs John S. Garfield and John W. Wiseman had each purchased a small game hunting permit issued by the Camp McCoy Fish and Wildlife Council authorizing them to hunt small game on the reservation; that plaintiffs Betty M. Garfield and Audrey Wiseman did not engage in small game hunting, but entered upon the reservation solely for the purpose of picknicking and hiking; that during the time that plaintiffs were on the reservation, one of the members of plaintiffs' group discovered a blank 90 millimeter cartridge in said public area; that said cartridge was transported a few hundred yards to an area in which members of plaintiffs' group had parked their automobiles and in which plaintiffs' group was planning to prepare a picnic lunch; that said cartridge was placed in a tree approximately 150 feet from this picnic area; that certain members of plaintiffs' group began shooting at said cartridge with a .22 caliber rifle from the vicinity of the picnic area; that while plaintiffs were engaged in preparing the picnic lunch a violent explosion occurred; that said cartridge was thereby propelled in a reverse direction toward the group preparing the picnic lunch; and that said cartridge struck plaintiffs John S. Garfield, John W. Wiseman and Audrey Wiseman and narrowly missed plaintiff Betty M. Garfield.

Plaintiff Betty M. Garfield sues for damages for physical injuries resulting from mental distress suffered as a result of this incident. Plaintiff John S. Garfield sues for damages for personal injuries suffered as a result of this incident and for medical expenses incurred by him for treatment of Betty M. Garfield and for the loss of the services, society and consortium of Betty M. Garfield. Plaintiff Audrey Wiseman sues for damages for personal injuries. Plaintiff John W. Wiseman sues for medical expenses incurred by him for treatment of Audrey Wiseman and for the loss of the services, society and consortium of Audrey Wiseman.¹

The government contends that it is not liable for any injuries which plaintiffs may have sustained on account of the alleged negligence of the government. For this contention the government relies on § 29.68, Wis.Stats., which provides:

"(1) Safe for entry: no warning. An owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others for hunting, fishing, trapping, camping, hiking, berry picking, water sports, sightseeing or recreational purposes, or to give warning of any unsafe condition or use of or structure or activity on such premises to persons entering for such purpose, except as provided in sub. (3).

"(2) Permission. An owner, lessee or occupant of premises who gives permission to another to hunt, fish, trap, camp, hike, sightsee, berry pick or to proceed with water sports or recreational uses upon such premises does not thereby extend any assurance that the premises are safe for such purpose, or constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or assume responsibility for or incur any liability for any injury to person or property caused by any act of persons to whom the permission is granted, except as provided in sub. (3).

"* * *

"(3) This section does not limit the liability which would otherwise exist for wilful or malicious failure to guard or to warn against a dangerous condition, use, structure or activity; or for injury suffered in any case where permission to hunt, fish, trap, camp, hike, sightsee, berry pick or to proceed with water sports or recreational uses was granted for a valuable consideration other than the valuable consideration, if any, paid to said landowner by the state; or for injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike, sightsee, berry pick or to proceed with water sports or recreational uses was granted, to other persons as to whom the person granting permission, or the owner, lessee or occupant of the premises, owed a duty to keep the premises safe or to warn of danger. As used in this subsection `valuable consideration' shall not include contributions to the sound management and husbandry of natural and agricultural resources of the state resulting directly from the recreational activity.

"(4) Injury to person or property. Nothing in this section creates a duty of care for injury to person or property.

"(5) Definition. The word `premises' as used in this section includes lands, private ways and any buildings, structures and improvements thereon."

This statute modifies the relationship which existed between a landowner and those who entered upon his property under the common law invitee-licensee-trespasser classification of entrants to property. Under the statute the landowner owes a duty of reasonable care to those entering his land for recreational purposes only if permission to enter the land is granted for a "valuable consideration". See Note, Torts-Statutes-Liability of Landowner to Persons Entering for Recreational Purposes, 1964 Wis.L.Rev. 705, 706.

Plaintiffs contend that the liability of defendant was not so limited in this case and that defendant did owe plaintiffs a duty of reasonable care because plaintiffs were granted permission to enter upon the land for a "valuable consideration" within the meaning of § 29.68(3). The "valuable consideration" to which plaintiffs refer is the fee paid by John S. Garfield and John W. Wiseman for small game hunting permits.²

Attached to the defendant's motion for summary judgment is a copy of the Cooperative Plan entered into by the Department of Defense, the Department of Interior, and the State of Wisconsin for conservation and development of fish and wildlife resources on the Camp McCoy Military Reservation. From this plan it appears that the fee for a small game hunting permit is 50 cents. The government does not dispute the payment of such a fee by John S. Garfield and John W. Wiseman, but contends that such fees are excluded from the term "valuable consideration" by the final sentence of § 29.68(3) because the fees are used for "sound management and husbandry of natural and agricultural resources of the state". The government finds support for this contention in the text of the Cooperative Plan which states in reference to the various permit fees:

"Such collections will be utilized on the reservation for the protection, conservation and management of fish and wildlife, including habitat improvement and related activities, and for no other purpose, in accordance with Section 3 of Public Law 86-797 74 Stat. 1052." (Emphasis in original.)

The last sentence of § 29.68(3) which provides the limitation on the meaning of "valuable consideration" upon which the government relies was added by Chapter 190 of the Laws of 1965. Chapter 190 of the Laws of 1965 does not provide when it is to become effective. § 990.05, Wis.Stats., provides that a law which does not expressly provide for the time when it is to take effect becomes effective on the day after its publication. It appears that Chapter 190 of the Laws of 1965 was published on August 11, 1965. Since the incident from which this action arose occurred on October 24, 1965, the last sentence of subsection (3) was in effect at that time and is applicable here.

§ 29.68 does not appear to have been construed by the courts of the State of Wisconsin in any reported decision. Additionally, although several states have enacted similar provisions³, there appear to be no reported decisions construing any of these statutes.

The government contends that permit fees are excluded from the term "valuable consideration" within the meaning of § 29.68(3) because said fees are utilized for "protection, conservation and management of fish and wildlife."

According to the Cooperative Plan, the fees collected are to be utilized for the sole purpose of "protection, conservation and management of fish and wildlife" on the reservation. The Plan provides for the establishment of a program of research and development with the following objectives:

"a. To develop and improve the habitats for desirable wildlife and to control those undesirable species which are objectionable to good conservation practice and installation objectives.

"b. To develop and improve the habitats for fish in the lakes and streams and to

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