Gould v. U.S., 98-1746

• Decision Date: 18 November 1998
• Docket Number: No. 98-1746,98-1746
• Citation: 160 F.3d 1194
• Parties: C. Russell GOULD, Appellant, v. UNITED STATES of America, Appellee. William R. ZANETELLO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1194

160 F.3d 1194

C. Russell GOULD, Appellant, v. UNITED STATES of America, Appellee.

William R. ZANETELLO, Appellant, v. UNITED STATES of America, Appellee.

No. 98-1746.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 25, 1998.

Decided Nov. 18, 1998.

Michael B. White, Kansas City, MO, argued, for Appellants.

James C. Bohling, Kansas City, MO, argued (Thomas Larson, on the brief), for Appellee.

Before BOWMAN, Chief Judge, and WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

William Zanetello and Russell Gould, strangers to each other at the time, were injured on different days while sledding down the back of a dam built, operated, and owned by the Army Corps of Engineers (the Corps) at Longview Lake in Jackson County, Missouri. Each of them was seriously hurt when his sled crashed after having been propelled into the air upon contact with a sloped terrace that was three or four feet high. Each sued the United States under the Federal Tort Claims Act. See 28 U.S.C. § 1346(b)(1), §§ 2671-2680.

Both lawsuits asserted a theory of "premises liability," that is, they claimed that the plaintiff was injured by an unreasonably dangerous condition that existed on property of the United States. After a bench trial, the court entered judgment for the United States based on its findings that both Mr. Zanetello and Mr. Gould actually knew, or in any event could reasonably have been expected to discover, the risk of becoming airborne.

Mr. Zanetello and Mr. Gould appeal. We affirm the judgment with respect to Mr. Zanetello. With respect to Mr. Gould, we vacate the judgment and remand the case for further proceedings not inconsistent with this opinion.

I.

Mr. Zanetello and Mr. Gould contend that the unreasonably dangerous condition relevant in this case was the presence of the terrace and that the relevant risk was that a person's sled could be propelled four to six feet high after crossing the terrace. That risk is relevant, of course, only if it is what actually caused the plaintiffs' injuries.

With respect to Mr. Zanetello, however, there was no evidence that he in fact reached such a height. At trial, neither he nor either of his two sledding partners estimated the height that he achieved, and the trial court found only that Mr. Zanetello "became airborne." The evidence was simply insufficient to support a conclusion that Mr. Zanetello was injured after being propelled four to six feet in the air. We therefore affirm the trial court's judgment for the United States with respect to Mr. Zanetello.

With respect to Mr. Gould, David Gross testified that Mr. Gould achieved a height of four to six feet. Adam Gross testified that Mr. Gould flew over his head, although he could not remember if he was standing at that time, and further testified that Mr. Gould "flew close to eight feet, somewhere around there, five to ten feet." Although the matter is not entirely free from doubt, it seems evident that the trial court believed David Gross's testimony that Mr. Gould achieved a height of four to six feet. The trial court's decision relied substantially on Mr. Gross's testimony for the crucial facts that the terrace was visible on the day of the accident, that Mr. Gross made a sled run and went airborne prior to Mr. Gould's run, and that Mr. Gould's sled "lost contact with the ground and flew a number of feet through the air." It thus appears to us that the trial court credited Mr. Gross's testimony concerning the height Mr. Gould's sled reached, and we therefore turn to a consideration of the Missouri law applicable to this kind of case.

II.

In Wells v. Goforth, 443 S.W.2d 155 (Mo.1969) (en banc), overruled in part on other grounds, Rowe v. Farmers Insurance Company, Inc., 699 S.W.2d 423, 424-25 (Mo.1985) (en banc), the Missouri Supreme Court stated that the principles applicable to this kind of case are those outlined in § 342 of the Restatement (First) of Torts. Missouri law imposes liability on a landowner when a licensee is injured on the owner's land only if the owner had actual knowledge of a condition presenting an unreasonable risk, and had a reason to believe that a licensee would not discover the condition or realize the risk. See Restatement (First) of Torts § 342 at 932 (1934).

The Missouri courts have held that landowners have no reason to believe that open and obvious conditions or risks will not be discovered, and that landowners do have a reason to believe that conditions or risks will not be discovered if they are not open and obvious. See, e.g., Vogt v. Dace, 762 S.W.2d 838, 841 (Mo.Ct.App.1988), and Birdsong v. Adolf, 724 S.W.2d 731, 734 (Mo.Ct.App.1987). The risk, in the ordinary case, is likely to be discovered when the relevant physical condition is open and obvious. See Restatement (First) of Torts § 342, comment b, at 932. "[T]he fact that the condition is obvious," so that a licensee could reasonably be expected to know of or discover it, "is usually sufficient to apprise [a licensee], as fully as the possessor, of the full extent of the risk involved in it." Id.

Much of the Missouri case law deals with situations in which full knowledge of the risk necessarily followed from an injured party's observation of a physical condition. For example, the risk of injury is obvious when jumping or diving into a lake from a cliff that is 70 feet high, Birdsong, 724 S.W.2d at 734, and the risk of being hit by a falling ladder is obvious when the ladder is clearly unsecured, Fisher v. Northmoor United Methodist Church, 679 S.W.2d 305, 305-06 (Mo.Ct.App.1984). But these cases cannot be read as creating a rule that a licensee's knowledge of a physical condition is always enough to free a landowner from liability to a licensee;...