Hartzell v. U.S.

• Decision Date: 09 August 1976
• Docket Number: No. 75-1603,75-1603
• Citation: Hartzell v. U.S., 539 F.2d 65 (10th Cir. 1976)
• Parties: Edson Keith HARTZELL, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 65

539 F.2d 65

Edson Keith HARTZELL, Plaintiff-Appellant, v.UNITED STATES of America, Defendant-Appellee.

No. 75-1603.

United States Court of Appeals Tenth Circuit.

Submitted May 18, 1976.

Decided Aug. 9, 1976.

Ralph B. Harden, Fort Collins, Colo. (Charles S. Bloom, Fort Collins, Colo., on the brief), of Harden & Napheys, Fort Collins, Colo., for plaintiff-appellant.

Raymond J. Connell, Denver, Colo. (Robert W. Harris, Denver, Colo., on the brief), of Yegge, Hall & Evans, Denver, Colo., for defendant-appellee.

Before BARRETT and DOYLE, Circuit Judges, and TEMPLAR, ^*District Judge.

BARRETT, Circuit Judge.

Edson Keith Hartzell appeals from an adverse judgment following a five day trial to the court.His complaint and claim for damages are based upon personal injuries he allegedly sustained when he fell down stairways while departing the United States Air Force Academy football stadium following a football game between the Air Force and Stanford on November 14, 1970.He invoked jurisdiction pursuant to 28 U.S.C.A. § 1346(b), commonly referred to as the Federal Tort Claims Act.The gravamen of the action is founded on the statutory language rendering the United States liable for money damages ". . . for personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting in 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".See also1 Barron & Holtzoff (Wright Ed.), § 54, pp. 294-297.

Hartzell and his wife drove from their home in Boulder, Colorado, about 8:30 A.M. Saturday, November 14, 1970.They first encountered heavy, slushy snow conditions on the highway a few miles south of Denver which continued to a point about eight miles from the Air Force stadium known as the Garden of the Gods Club, where they met their friends, Mr. and Mrs. Lee Wills, for lunch.The Hartzells drove past the Academy site only some 30 minutes after blizzard conditions had visited the area that morning.

Mr. Hartzell had anticipated the adverse weather.He wore heavy clothing, including long underwear, wool pants, a pair of stadium boots, a sweater with a regular shirt and tie, a tweed coat, and a very heavy abercrombie coupled with a hat, gloves and scarf.He observed some six or eight inches of snow on the ground in the area of the Academy, an overcast sky, and windy, cold weather conditions.Following lunch, the party proceeded by auto to the stadium, some eight miles away.The trip required about an hour and a half and, as a result, they missed the entire first quarter of the football game.They entered the stadium from the north side where they encountered some difficulty on the steps which had been hit by heavy snows which fell on Friday and Saturday.Once inside the stadium, they proceeded safely to their seats.Even though it was quite cold and windy, the snow had been substantially removed from within the stadium except for that under the stadium seats.

It snowed at the Academy on Thursday, November 12th, resulting in some slush gathered in the stadium.A very heavy snow, of blizzard calibre, struck on Friday, November 13th, accumulating between four and five inches and creating drifts.Lt. Col. Shields, Chief of Facilities of the Academy Athletic Dept., directed the stadium manager and a snow removal crew of some 30 persons in snow removal on Thursday and a crew of 26 within the stadium from about 2:00 P.M. until after 5:00 P.M. Friday in removing the snow.

Another snowstorm occurred Friday night, rendering conditions very bad.On Saturday the stadium manager arrived at the stadium about 4:30 A.M. Snow commenced falling again by 5:00 A.M. that day which, with the high wind, created blizzard conditions which continued until about 10:00 A.M. Col. Shields and his regular work crew of some 25 to 30 persons commenced snow removal work in the stadium and access routes thereto at 5:00 A.M.In addition, some 75 husky high school boys were enlisted in the snow removal operation.By 8:00 A.M. more than 125 persons were working feverishly to clear the stadium, notwithstanding the extremely adverse conditions.Six persons were spreading Snowmelt throughout the stadium prior to the game.

During the game some 10 staff members spread Snowmelt on many icy areas, particularly the south and north entrance exit stairways.Col. Shields examined both stairways prior to the game.He testified that they had been shoveled, that traction was good and that the Snowmelt was visible.He did detect snow and/or ice on the "side" or "edges" of the stairways.There are handrails on each side of the stairways and a third handrail in the center.

During the third quarter of the game, a spectator, Joseph L. Musso, left the stadium via the same south stairways that Hartzell subsequently fell from.Musso testified that he had entered the stadium through this stairway; that it was icy, slippery and snow packed at that time; and that the same conditions existed when he was exiting.Although he was proceeding carefully, Musso fell on the stairway and fractured his hip.An Air Force ambulance took him to the Academy hospital.This accident was not announced on the loudspeaker, nor was anything said or announced relative to the condition of these stairways.

After the game, the Hartzell party first proceeded to the top of the stadium near the pressbox section to warm themselves.They there decided to exit by means of the south stairway, having recalled how slippery the north stairway was when they entered the stadium.

They proceeded down the walkway ramp and the vehicular ramp on the south stairway, both of which were free from snow and ice.When they reached the steps they found them to be slippery, irregular, snow packed and icy.Hartzell, who had suffered a serious back ailment which had been substantially alleviated by surgery in 1962 and 1964, proceeded cautiously down the stairs, at times linking arms with one of his group and holding to the handrail.A few steps from the bottom, Hartzell fell down and back, striking his head and back on the steps, sliding to the bottom of the stairway where he laid in a dazed condition, with severe pain in his lower back.With the aid of his party, he walked to the Wills' vehicle.

After returning to his home, Hartzell reported the fall and discomfiture to a Doctor Wolfe who advised him to wait a couple of weeks to see if the pain would not quiet down.It did not.A succession of consultations, examinations, and hospitalization followed until it was determined that he should undergo back surgery.This was done in a Texas clinic on January 6, 1972.Hartzell endured great pain as a result of the surgery.He was hospitalized for one month.When he returned to his home, he was unable to perform his work as a consulting engineer with the partnership firm of Hartzell-Pfeiffenberger and Associates, Inc., of Boulder which had been formed in 1969 and which had been very successful.Many more consultations, examinations, medication and other treatments followed, even to the time of trial.Hartzell incurred substantial medical hospital expenses.In addition, he suffered great pain and substantial loss of income.

On appeal, Hartzell alleges that the trial court erred: (1) in its findings and conclusions that the United States acted reasonably and without fault in light of all of the facts and circumstances, (2) in its findings that Hartzell's pre-existing back condition was not aggravated by the fall he encountered in the stadium, thus eliminating the fall as a causation factor and (3) in admitting, over his objection, testimony concerning a disability rating and compensation award made to Hartzell by the Veterans Administration.

Preliminary to discussion of the claimed errors, we believe that the scope of our review should be placed in proper perspective.A trial court's findings of fact which have support in the record, considered with its interpretation and application of the law of the state of the federal trial judge's residence, shall not be disturbed on appeal unless determined to be clearly erroneous.Fed.Rules Civ.Proc., rule 52,28 U.S.C.A.;United States Fidelity and Guaranty Co. v. United States, 446 F.2d 851(10th Cir.1971);Black v. United States, 421 F.2d 255(10th Cir.1970);see alsoPermian Corporation v. Armco Steel Corporation, 508 F.2d 68(10th Cir.1974).The question on this appeal is not whether this appellate court, if involved in trial de novo, would resolve the controversy in the same manner as the trial court but only whether the trial court's decision is impermissible within the ambit of Colorado law, thus rendering it clearly erroneous.

I.

The trial court held that:

The duty owing to the plaintiff as a spectator at the football game is the duty to exercise reasonable care to have the premises in a reasonably safe condition commensurate with the circumstances involved.That duty includes the responsibility for warning of any condition creating an unreasonable risk of injury which defendant knew or reasonably should have known to exist.In Colorado, the trier-of-fact is given wide latitude in determining the reasonableness of the defendant's conduct in the failure either to remove or warn of any icy condition.King Soopers, Inc. v. Mitchell, 140 Colo. 119, 342 P.2d 1006(1959);Smith v. Mill Creek Court, Inc., 457 F.2d 589(10th Cir.1972)andEisenhart v. Loveland Skiing Corporation, 33 Colo.App. 120, 517 P.2d 466(1973).(R., Vol. IX, pp. 68, 69).

We agree.The above-quoted recital is consistent with Restatement, Second, Torts, §§ 343and343A (1965), relating to the responsibility of a possessor of land to his invitee.In determining whether the possessor of land should anticipate harm from a known or obvious...