Klepper v. City of Milford, Kansas

• Decision Date: 28 September 1987
• Docket Number: 84-1174,Nos. 84-1029,s. 84-1029
• Citation: 825 F.2d 1440
• Parties: David L. KLEPPER, Plaintiff-Appellant, v. CITY OF MILFORD, KANSAS, Defendant-Appellee. and David L. KLEPPER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant & Third Party Plaintiff-Appellee, and City of Milford, Kansas, Third Party Defendant-Appellee. . As Amended
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1440

825 F.2d 1440

David L. KLEPPER, Plaintiff-Appellant, v. CITY OF MILFORD, KANSAS, Defendant-Appellee. and David L. KLEPPER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant & Third Party Plaintiff-Appellee, and City of Milford, Kansas, Third Party Defendant-Appellee.

Nos. 84-1029, 84-1174.

United States Court of Appeals Tenth Circuit.

As Amended Sept. 28, 1987.

Aug. 6, 1987.

Jerry K. Levy (Janet Jo Smith, with him on the brief), of Law Offices of Jerry K. Levy, P.A., Topeka, Kan., for plaintiff-appellant.

Howard Harper and Charles W. Harper, II, of Harper & Hornbaker, Chartered, Junction City, Kan. (Craig J. Altenhofen, with them on the brief), for defendant-appellee City of Milford, Kan.

Alleen S. Castellani, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., and Russell Kaufman, Asst. U.S. Atty., and R. Dale Holmes, Asst. District Counsel, U.S. Army Corps of Engineers, on the brief), Topeka, Kan., for defendant third party plaintiff-appellee U.S.

Before LOGAN, MOORE and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The incident on which these claims are based involves an injury resulting from a shallow-water dive off a boat docked at property owned and managed by a Kansas municipality and located at a lake owned by the United States government. Central to the case is the applicability and construction of the Kansas Recreational Use Statute, which assigns liability to owners of recreational lands only where fees are charged or where there is willful or malicious failure to guard against or warn of a dangerous condition, use, structure, or activity. The definition of "willful" under Kansas law is critical to the outcome of this consolidated appeal.

On August 5, 1978, while on weekend leave from his army duties at Ft. Riley, Kansas, twenty-five year old David Klepper went motor boating with two army friends on nearby Milford Lake. After several hours of boating, beer drinking, and intermittent swimming and fishing in deep water, the men pulled up to the small boat dock at the Milford city park. According to Klepper's two companions, as they approached the dock they had to lift the outboard motor up out of the water to keep it from dragging on the shallow bottom of the lake near the shore. They jumped out of the boat to tow it to the dock, thereafter tying it to the dock while Klepper remained in the boat. Then Klepper and one of his companions went to buy more beer at a small lakeside store. As Klepper returned to the lake shore from the store, he began to jog down the thirty-four foot boat ramp leading to the dock, apparently to attract the attention of an attractive teenage girl sunbathing in a bikini at the edge of the dock. Upon reaching the end of the dock, Klepper jumped aboard the boat and onto The Army Corps of Engineers ("Corps") had constructed Milford Lake for purposes of flood control, and the United States government owned the land under and surrounding the lake. The Corps managed the lake and leased certain land around the lake to the State of Kansas and local governments for recreational purposes, terming the leased land "outgranted land." The City of Milford ("Milford") had leased a small area on the lake shore for the operation of a city park and had constructed the wooden 8 x 16 foot boat dock involved in this accident. The dock was attached to a wooden ramp leading from the shore, which together with the dock created a forty-two foot long, T-shaped structure at the edge of the lake. The city park contained facilities for boaters, campers, and picnickers.

                the outside gunnel, appeared to lose his balance, but in any event lifted his arms over his head and dove head first into the murky water.  His arms and then his head hit the bottom of the lake, and he permanently injured his neck and spinal cord.  As he was being supported in the water while awaiting an ambulance, Klepper repeatedly stated "that was dumb."    The injury left him with only partial use of his arms and very little use of his legs.  Medically his injury is described as "incomplete quadraplegia."
                

Federal regulations govern the public use of water resource development projects that are administered by the Corps, such as Milford Lake. 36 C.F.R. Pt. 327 (1978). At the time of the accident, these regulations stated generally:

It is the policy of the Secretary of the Army acting through the Chief of Engineers to provide the public with safe and healthful recreational opportunities within all water resource development projects administered by the Chief of Engineers.

36 C.F.R. Sec. 327.1(a) (1978). The regulations further provided that "[s]wimming, snorkling [sic], or scuba diving is permitted, except in those areas of the lake, reservoir, or other body of water designated by the District Engineer and marked by the posting of appropriate signs." 36 C.F.R. Sec. 327.5 (1978). Finally, the regulations stated that Sec. 327 applies to outgranted lands as "a minimum regulatory requirement" but that, otherwise, "[a]pplicable laws and regulations of the State shall be deemed to apply on project lands or waters which are outgranted...." 36 C.F.R. Sec. 327.23 (1978).

Under the terms of the lease, Milford was responsible for the maintenance of the area where Klepper was injured, but the Corps made quarterly inspections of the area and issued recommendations to the city for repairs and improvements. Swimming was prohibited at the boat dock and launching site involved in this accident, and Milford had erected a 4' x 6' sign on the shore to that effect. Located some twenty-nine feet north of the boat dock ramp, the sign stated:

Milford City Dock

Loading and Unloading Only!

No Swimming or Fishing

Whether the sign was actually in place or had been dislodged and was in the water at the time of the injury was subject to dispute.

In separate actions Klepper sought compensation for his injuries from both Milford and the U.S. government. Klepper lost both suits in district court, and the two actions were consolidated on appeal. We affirm.

PROCEDURAL BACKGROUND

A summary of the procedural developments in this case is important for an understanding of the issues raised on appeal. On November 30, 1979, Klepper filed a diversity action against Milford for its common-law negligence in failing to erect and maintain a "No Diving" sign on or near the dock. Milford answered by denying In late autumn of 1981, first Milford and then the United States were granted permission to amend their answers to plead the Kansas Recreational Use Statute ("RUS"), K.S.A. 58-3201 to -3207, as a defense. The Kansas RUS exempted landowners (including lessees) from liability for mere negligent failure to warn recreationists of dangerous conditions where "land," including facilities thereon and water, was made available for recreational use free of charge. Instead, liability attached only for willful or malicious failure to guard against or warn of a dangerous condition, use, structure, or activity. In response to the amended answers, Klepper then sought and was given permission to amend his complaint to allege that, in addition to ordinary negligence, the willful conduct of the defendants caused his diving injuries.

                its negligence and asserting affirmative defenses of contributory negligence and assumption of risk.  Several months later, Klepper sued the United States in a separate action under the Federal Tort Claims Act ("FTCA"), see 28 U.S.C. Sec. 1346(b), alleging that his injuries were caused by the negligence of the U.S. government in failing to enforce proper safety standards, thereby violating its own regulations. 1   As had Milford, the United States answered by denying its negligence and by asserting contributory negligence and assumption of risk, among other things.  Both defendants asserted that Klepper was or should have been aware of the shallowness of the water at the end of the boat dock.  They also asserted that his apparent intoxication and desire to attract the attention of a pretty girl sunbathing on the dock in a bikini had impaired his judgment or caused him to forget the shallowness of the water.  The two actions were consolidated for purposes of discovery and summary judgment determinations.  At various stages in the pretrial proceedings, motions for summary judgment were denied
                

Klepper moved to consolidate the two cases for trial. His motion was denied. Klepper's case against Milford was tried to a jury from November 28 through December 5, 1983. The case was tried on theories of both ordinary negligence and willful failure to warn or guard against known dangers. Midway through the trial, the judge ruled in chambers that in spite of plaintiff's various attempts to get around the Kansas RUS, the jury instructions would preclude a verdict based on any ordinary negligence attributable to Milford. Instead, the instructions would require the jury to find Milford's conduct to have been willful. At that stage of the trial he left to the attorneys a determination as to whether evidence of Klepper's alleged intoxication was relevant to Milford's defense to the charge of willful conduct. However, at the end of the trial, jury instruction no. 8 stated that "[n]egligence of the plaintiff will not prevent his recovery from the defendant when defendant's conduct is wilful." R. Vol. I at 207. The jury returned a verdict for Milford.

Two days later, on December 7, 1983, the claim against the United States was tried before the Honorable Richard D. Rogers, the same judge who presided over the jury trial. A stipulation allowed the judge to consider much of the same evidence that was introduced during the jury trial. In a careful and exhaustive review of the many arguments raised, Judge Rogers held that the United States was not liable for Klepper's injury.

On consolidated appeal of the two cases, Klepper alleges three legal errors by the district court: (1) that the judge used an incorrect standard of...