Hegg v. U.S.

• Citation: 817 F.2d 1328
• Decision Date: 04 June 1987
• Docket Number: No. 86-1503,86-1503
• Parties: Lauren R. HEGG, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1328

817 F.2d 1328

Lauren R. HEGG, Appellant, v. UNITED STATES of America, Appellee.

No. 86-1503.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 13, 1987.

Decided May 8, 1987.

Rehearing Denied June 4, 1987.

Mary K. Hoefer, Cedar Rapids, Iowa, for appellant.

Robert C. Dopf, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before BOWMAN and MAGILL, Circuit Judges, and HARPER, ^* Senior District Judge.

BOWMAN, Circuit Judge.

This is an action under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b). Plaintiff Lauren R. Hegg appeals from an order of the District Court ¹ granting summary judgment in favor of defendant United States. The District Court held that under the Iowa "recreational use" statute, Iowa Code Sec. 111C.1 et seq., the United States was immune from liability for its alleged negligence and that Hegg had failed to produce any evidence to support her claim that defendant acted willfully or maliciously (and thus would not be immune from liability under the statute). For the reasons set forth below, we affirm.

On May 4, 1980, Lauren Hegg (then 28 years of age) and a few of her friends had a picnic at the East Overlook recreational area of the Coralville Lake Reservoir in Johnson County, Iowa. This property is owned and maintained by the United States as a recreational area open for use by the general public without charge (except for overnight camping, for which there is a small fee). During the afternoon, Hegg and a friend were swinging on a T-shaped belt- or strap-type swing set. The center pole of the swing set was fixed in concrete, though each swing was positioned over a soil surface. According to Elizabeth Cannell, Hegg's companion and the only eyewitness to the accident, Hegg was swinging fairly high when during an upswing she slid or fell backward out of the swing and directly to the ground below. According to Cannell, Hegg did not strike the center pole or the concrete base, but landed on her back on the ground. There was no indication or allegation that the swing itself broke or was otherwise defective. Hegg suffered a spinal cord injury in the accident and is partially paralyzed as a result. Defendant had no knowledge of any previous injuries resulting from use of the swing sets at Coralville.

Hegg filed this action pursuant to the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b), alleging inter alia that defendant's employees were negligent in constructing the swing set and in failing to warn of its dangerous condition. Shortly before the scheduled trial date, defendant filed a motion for summary judgment, asserting that under the Iowa recreational use statute, Iowa Code Sec. 111C.1 et seq. (attached hereto as an Appendix), it was immune from liability for its alleged negligence, and that Hegg had not pled and could not prove "willful or malicious" conduct on the part of defendant so as to fall within one of the statutory exceptions to the general rule of immunity. Hegg resisted the motion, arguing that summary judgment was improper because the Iowa recreational use statute did not apply to defendant in this case and because there was a genuine issue of material fact whether defendant's conduct was willful or malicious. In particular, Hegg argued that (1) the statute applies only to private landowners, not to public landowners, and defendant therefore does not fall within the statutory definition of a "holder" of land; (2) the property on which she was injured did not fall within the statutory definition of "land"; (3) she was not using defendant's property for a "recreational purpose," as defined by the statute, when she was injured; and (4) there was a factual issue whether defendant willfully and maliciously failed to guard or warn against a dangerous condition, use, structure, or activity, and thus would not be entitled to immunity under the statute.

The District Court considered and rejected each of Hegg's contentions and entered summary judgment for defendant. In response to Hegg's first contention, the court noted that under the FTCA the United States is liable only in those circumstances in which a "private person" would be liable under the law of the state where the accident occurred. 28 U.S.C. Sec. 1346(b). Thus, since a private person could take advantage of the statutory immunity provided by the Iowa recreational use statute, statutory immunity was available to the United States. Cf. Mandel v. United States, 719 F.2d 963, 966-967 (8th Cir.1983) (applying Arkansas recreational use statute); Ewell v. United States, 776 F.2d 246 The parties have advised this Court that the issues regarding the appropriate construction of the Iowa recreational use statute are issues of first impression. There has been no reported case interpreting the statute. Both parties urge this Court to decide the case without certification to the Iowa Supreme Court. In cases involving issues of state law that previously have not been addressed by the state appellate courts, this Court often has stated that we will give substantial weight and deference to the district court's ruling unless it is " 'fundamentally deficient in analysis or otherwise lacking in reasoned authority.' " Kifer v. Liberty Mutual Insurance Co., 777 F.2d 1325, 1330 (8th Cir.1985) (quoting Ancom, Inc. v. E.R. Squibb & Sons, 658 F.2d 650, 654 (8th Cir.1981)). Our task is " 'not to adopt the construction we think most reasonable, but simply to review the district court's determination....' " 777 F.2d at 1330 (quoting Brown & Root v. Hempstead County Sand & Gravel, 767 F.2d 464, 469 (8th Cir.1985)). Having reviewed the District Court's rulings concerning the meaning of the statute, we cannot say that they are fundamentally deficient in analysis or otherwise lacking in reasoned authority. We therefore conclude that this is an appropriate case in which to defer to the District Court. Indeed, this is a typical case in which the construction of a state statute of previously unresolved meaning is best left to the district judge, who ordinarily is much more likely to be intimately familiar with the jurisprudence of his state than are the members of this Court. We therefore affirm the District Court's rulings construing the Iowa recreational use statute (which rejected Hegg's first, second, and third contentions noted above). See 8th Cir.R. 14.

248-249 (10th Cir.1985) (applying Utah statute). The court rejected Hegg's second contention regarding the appropriate construction of the statutory definition of "land," reasoning that the Iowa legislature intended to distinguish between rural and urban land when it used the phrase "land for agricultural purposes" and holding that the recreational area where Hegg was injured was "land" within the meaning of the statute. The court likewise rejected Hegg's third contention that she was not engaged in a "recreational purpose" when she was swinging because "swinging" is not specifically mentioned in the list of activities included within the statutory definition. The court reasoned that the list of activities expressly mentioned as within the statutory definition of "recreational purpose" was intended to be illustrative only, not complete and exclusive. The court held that in view of the general purposes underlying the statute and the popular and reasonable understanding of the meaning of the term "recreational purpose," swinging fell within that definition. Finally, the court held that there was no genuine issue of material fact on the issue whether defendant acted willfully or maliciously, so as to fall outside the protection of the statute. The court noted that in opposing the summary judgment motion Hegg had failed to produce any factual evidence that would tend to support her burden to prove willfulness or malice. The court concluded that there was no genuine issue of material fact on that issue and accordingly entered summary judgment for defendant. On appeal Hegg raises the same contentions that she raised before the District Court. ²

Remaining for our consideration is the District Court's ruling that there was no genuine issue of material fact on the issue whether defendant acted willfully or maliciously. In reviewing a district court order granting a motion for summary judgment, we apply the same standard as the district court. Mandel v. United States, 719 F.2d at 965.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court recently held that "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, --- U.S. ----, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265 (1986). "[T]he plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery." Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict...." Id. at 2512. Of course, "[c]redibility determinations, the weighing of the evidence, and the drawing of...