King v. U.S., 00-1486.

• Decision Date: 05 September 2002
• Docket Number: No. 00-1486.,00-1486.
• Citation: 301 F.3d 1270
• Parties: Jerry KING, et al., Plaintiffs, v. UNITED STATES of America, Defendant-Cross Claimant-Appellant, v. Wayne Emmett McKillop, Defendant-Cross Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

301 F.3d 1270

Jerry KING, et al., Plaintiffs, v. UNITED STATES of America, Defendant-Cross Claimant-Appellant, v. Wayne Emmett McKillop, Defendant-Cross Defendant-Appellee.

No. 00-1486.

United States Court of Appeals, Tenth Circuit.

September 5, 2002.

Alisa B. Klein, Appellate Staff, Civil Division, Department of Justice, Washington, DC, (Stuart E. Schiffer, Acting Assistant Attorney General, Thomas L. Strickland, United States Attorney, and Mark B. Stern, Department of Justice, with her on the briefs), for Defendant-Cross Claimant-Appellant.

Colleen A. O'Laughlin (William J. Kowalski and Mark Wiletsky with her on the brief), of Caplan and Earnest LLC, Boulder, CO, for Appellee.

Before KELLY and HOLLOWAY, Circuit Judges, and SHADUR, District Judge.^*

HOLLOWAY, Circuit Judge.

I

The third amended complaint (hereafter the complaint) in the instant suit alleges jurisdiction of this action for fire damages against the United States and others being pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2674 and 1346(b). Appellant's Appendix (Aplt.App.) at 1.

In the first claim for relief, the complaint averred that the Government was negligent in that it knew, or should have known, that the Pike National Forest in Colorado was in an unusually high condition of combustibility and that a fire ban should have been ordered. Id. at 8. The central ruling to this appeal is the dismissal of the Government's cross claim against defendant Wayne Emmett McKillop (McKillop), which the Government appeals. The cross claim against McKillop alleges he is liable to the Government for damages suffered as a result of a Buffalo Creek fire in the Pike National Forest. The liability of McKillop is averred to arise pursuant to terms of a Term Special Use Permit (the permit) obtained by McKillop from the Forest Service. Aplt.App. 26. He is alleged to be liable for damages suffered as a result of the fire, his liability to the Government arising "because the fire resulted from and related to his use of the Term Special Use Permit." Id. at 29.

The general factual background for the suit, drawn essentially from the Memorandum Opinion and Order on appeal and not in dispute, was as follows. On May 18, 1996, a fire began in the Pike National Forest near Buffalo Creek in Jefferson County, Colorado. The fire destroyed property and buildings owned and occupied by plaintiff Jerry King and several other people. The fire is alleged to have been started by several students of defendant McKillop who were on a field trip supervised by McKillop, a teacher for Community Involved Charter School (CICS). McKillop invited sixteen of his students to a cabin located on about one acre of land for which McKillop and his wife held a Term Special Use Permit issued by the United States Forest Service. See id. at 54-61. Some of the students slept in the cabin, while several others camped in a tent and built a campfire on land adjoining McKillop's site. The district judge found, inter alia, that McKillop used the property covered by the permit for the school camping trip; and that during the camping trip, the forest fire was started as a result of a camp fire built by the students on the camping trip. Id. at 108. Under these circumstances, the judge concluded that the damages claimed by the Government resulted from and were related to the permit. Id. Consequently the district judge denied McKillop's Rule 12(b)(6) motion directed to the Government's cross claim three. Id. at 108.

Owners of the destroyed property had brought suit in the United States District Court against McKillop, the students alleged to have built the campfire, CICS, the school district, and the Government. In the claim asserted against the Government there was an averment that the Government was liable for negligence in connection with a fire hazard. Two insurance companies intervened as plaintiffs. The Government filed cross claim three against McKillop, asserting a claim for damage to the forest as well as fire suppression costs under the permit. Id. at 29-30, 57. Other claims were settled or dismissed, and the only claim before us on appeal is the Government's cross claim three against McKillop. The court granted McKillop's Fed R.Civ.P. 12(b)(1) motion to dismiss that cross claim for lack of jurisdiction due to failure to file a timely notice within 180 days in accordance with Colorado law. Aplt.App. 103-04, 107. The Government now appeals that dismissal.

II

The motion for dismissal was granted because the Government had not complied with the 180 day notice requirement of the Colorado Governmental Immunity Act (CGIA), Col.Rev.Stat. §§ 24-10-101, et seq. The court held that such failure deprived it of jurisdiction. Aplt.App. 107, 115. We review de novo such a dismissal for lack of subject matter jurisdiction. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir.1999).

Section 24-10-118 of the CGIA provides that where a plaintiff sues a public employee such as McKillop, the employee is immune from claims arising from the performance of his duties, if such claims lie in tort or could lie in tort, unless the act or omission causing injury was "willful and wanton." The district court found, however, that a reasonable jury could find that McKillop's actions were "willful and wanton," and therefore did not grant the Rule 12(b)(1) motion on this basis. Aplt.App. 25-28.

However, a second section of the CGIA, § 24-10-109, includes a notice requirement that must be met even if the conduct was "willful and wanton." This section provides that a public employee acting in the scope of his duties may be sued only if notice is given within 180 days of the plaintiff's learning of the injury. The notice requirement states in pertinent part:

Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar such action.

Col.Rev.Stat. § 24-10-109(1) (emphasis added). It is undisputed that the Government did not give such notice. The district court therefore held that it lacked jurisdiction over the Government's cross claim against McKillop and granted McKillop's Rule 12(b)(1) motion on this basis.

The Government contends that its claim was brought in contract pursuant to federal law and premised on the Term Special Use Permit and, as a federal claim, it is not subject to the CGIA's limitations. Brief for the Appellant at 11, 17; Reply Brief for the Appellant at 3. Therefore, the Government urges the applicability of the federal 6 year limitations period of 28 U.S.C. § 2415(a), which governs actions founded on any contract, express or implied in law or fact, and which the Colorado statute cannot supplant. The Government further argues that it was entitled to bring its claim under both state and federal law, not just state law as McKillop argues. Id. at 5-6. On appeal, the Government argues only for its federal law claims.

The district court construed the Government's cross claim against McKillop as only a state law tort claim:

The United States' cross-claim against Mr. McKillop is properly construed as a state tort claim alleging damages as a result of McKillop's alleged negligence. The United States does not dispute that its claim lies in tort or could lie in tort. Furthermore, the United States has set forth no claim under federal law.

Aplt.App. 106A (Memorandum Opinion and Order). We must disagree with the district judge's interpretation of the Government's cross claim.¹

The Government disputes the district judge's construction of its cross claim, arguing that the claim was asserted to enforce the terms of the permit which was issued pursuant to federal regulations, citing 36 C.F.R. § 251.56(a)(i) & (ii). Brief for the Appellant at 10. The regulations, the Government contends, require that permit holders "indemnify the United States for any and all injury, loss, or damage, including fire suppression costs, the United States may suffer...." Id. (citing 36 C.F.R. § 251.56(d)(1)). Therefore, the Government argues that its cross claim against McKillop is governed exclusively by federal law. Id. at 12. McKillop counters that the Government waived this argument by failing to raise it with sufficient specificity in the district court.

III

A Whether the Government Raised This Argument in the District Court

As noted, the district court read the Government's cross claim as raising only a state tort claim. Therefore, McKillop argues, the Government waived its argument that it was bringing a federal claim. It is a general rule that this court will not consider an issue on appeal that was not raised below. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir.1992).

The Government asserted its cross claim against McKillop in its Amended Answer to Third Amended Complaint and Cross Claims, Aplt.App. 29 (Third Claim for Relief), under which appears the explanatory parenthetical "Liability under Term Special Use Permit." Paragraph 14² alleges:

Wayne E. McKillop is liable to the United States for its damages suffered as a result of the Buffalo Creek Fire pursuant to the terms of the Term Special Use Permit because the fire resulted from and related to his use of the Term Special Use Permit.

Id. (emphasis added). The Government explained its reasoning more fully in its Response to McKillop's Motion to Dismiss-Cross Claim. Aplt.App. 38-43. There, the Government acknowledged that the third claim for relief, discussed above, was its only claim...