Mandel v. U.S., 85-1367

Decision Date08 October 1986
Docket NumberNo. 85-1367,85-1367
Citation793 F.2d 964
PartiesMichael MANDEL, Appellee, v. UNITED STATES of America, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

William G. Cole, Dept. of Justice, Washington, D.C., for appellant.

Robert C. Compton, El Dorado, Ark., for appellee.

Before ARNOLD and WOLLMAN, Circuit Judges, and GUNN, * District Judge.

WOLLMAN, Circuit Judge.

The United States appeals from a judgment awarding appellee, Michael Mandel, $928,193.58. We affirm.

On August 1, 1978, Michael Mandel was permanently paralyzed when he dived into a swimming hole in the Buffalo River and struck his head on a submerged rock. The swimming hole, known as Mud Cave, is located on property known as Camp Orr. At the time of the accident, Camp Orr was owned by the Boy Scouts of America (it has since been acquired by the National Park Service).

Mandel brought suit for damages against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b), and the Boy Scouts of America and its insurer, Insurance Company of North America, alleging that defendants were negligent in failing to warn him of subsurface rocks in the Buffalo River. Defendants 1 moved for summary judgment, each denying ownership of the riverbed where the accident took place. The district court declined to reach the question of ownership, instead holding that defendants' liability was limited by the Arkansas Recreational Use Statute 2 to "willful and malicious" conduct and that the undisputed facts of this case foreclosed the possibility that defendants had acted in this manner. Mandel v. United States, 545 F.Supp. 907, 914 (W.D.Ark.1982). We affirmed the summary judgment in favor of Insurance Company of North America. We reversed the summary judgment in favor of the United States and remanded the case to the district court, holding that an inference could be drawn from the evidence when viewed in a light most favorable to plaintiff, that the National Park Service had acted willfully and maliciously. Mandel v. United States, 719 F.2d 963, 968 (8th Cir.1983). 3

On remand, it was determined that the United States did not in fact own the riverbed at Mud Cave. Accordingly, the district court ruled that the Arkansas Recreational Use Statute could not be invoked by the United States since the statute applies only to the owner of the land where the accident occurred. 4 The case then proceeded to trial. The district court found the United States liable for Mandel's injuries, concluding that the National Park Service had failed to exercise ordinary care in not warning Mandel of the presence of submerged rocks in the Buffalo River, including that portion of the river flowing through Camp Orr.

The United States contends on appeal that it had no legal duty to warn Mandel of the danger of diving into those parts of the river located on privately owned property, and that if it had a duty to warn, its failure to do so was not the proximate cause of Mandel's injuries. Additionally, the United States argues that Mandel's action is barred by exceptions to the FTCA.

I.

The Buffalo National River is part of the national park system and was established in 1972 to preserve a 130 mile long, scenic, natural, free-flowing river in northern Arkansas. As of 1978, almost 60,000 acres bordering the Buffalo River had been acquired by the Park Service, while 35,000 acres, including Camp Orr, remained in private hands.

At the time he was injured, Michael Mandel was twenty-two years old and employed as a camp counselor by the St. Louis Jewish Community Center Association. He first visited Buffalo River National Park (the park) on Memorial Day weekend in May of 1978. He was accompanied by three other camp counselors, Billy Chase, Brian Spector, and Eddie Adler. The four were acquainting themselves with the park in preparation for future camping trips to the area.

Mandel next returned to the park on the weekend of July 4, 1978, along with Adler, Spector, several other camp counselors, and thirty to forty young teenagers. The group set up camp at a primitive camping area in the park known as Kyle's Landing. Shortly after their arrival, Mandel and Adler were approached by a National Park Service ranger. Mandel testified that he asked the ranger where his group could go swimming, whereupon the ranger directed them to a nearby swimming hole--Mud Cave--saying, "That's where everybody goes. That's where we recommend for you to go." Throughout the July 4th weekend, Mandel and several members of his camping expedition swam at Mud Cave without incident.

On August 1, 1978, Mandel returned to the Kyle's Landing area with a second group of teenagers from St. Louis. Together with counselors Chris Kirby and Stuart Ollanik, Mandel arrived at Kyle's Landing ahead of the others. The three unloaded a van filled with supplies and proceeded to Mud Cave for a swim. All three men climbed a large rock located several feet from the bank of the river. Kirby and Ollanik dived from the rock into the swimming hole. They encouraged Mandel to do the same. When Mandel dived into the water he struck his head on a rock submerged four or five feet beneath the surface and broke his neck. As a result, he is a quadriplegic.

The evidence shows that Mud Cave was freely accessible from the park. There were no visible physical indications that Mud Cave was part of Camp Orr and not a part of the park. Mandel testified that because the ranger recommended Mud Cave he assumed it was part of the park. He also testified that the ranger's recommendation made him feel "secure in that area."

Three park rangers went to Mud Cave on the day following Mandel's accident and, without notifying the Boy Scouts, conducted an investigation. Before leaving the area, one of the rangers shot down a rope swing that extended over the swimming hole.

The record shows that the Park Service actively and voluntarily solicited informational inquiries from its patrons concerning the entire river, and not just that portion of the river flowing through the park. Visitors to the park were encouraged to "ask a ranger" any questions about the river.

It is undisputed that the Park Service did not know of the particular rock at Mud Cave. The district court found, however, that the Park Service knew generally that the Buffalo River was laced with submerged rocks. A Park Service brochure warned of the danger of submerged rocks, stating that "rocks are harder than heads," and the Park Service had erected a warning sign against diving at one location on the river where a fatality had occurred. There was testimony from a Park Service ranger and a Park Service employee indicating that they were aware of submerged rocks strewn throughout the river. Moreover, in the two weeks preceding Mandel's mishap at least two accidents involving submerged rocks occurred on the Buffalo River, resulting in the death of one man and serious injury to another.

The district court found that the National Park Service provided general services and exercised authority over the entire river, including the parts flowing through private property. The district court also found that there were no warning signs posted at the Kyle's Landing area nor on the access roads leading from the park to Mud Cave. It is undisputed that Mud Cave was a very popular swimming area.

Based on these findings, the district court concluded that the National Park Service was negligent in failing to warn Mandel of the dangers of submerged rocks in the river, grounding its holding on the ranger's failure to couple his recommendation with a warning and on the National Park Service's failure to post warning signs at either the Kyle's Landing area or adjacent to the roadways leading from the park to Mud Cave.

II.

The United States contends that Mandel's suit is barred by the "misrepresentation" and "discretionary function" exceptions to the FTCA, 28 U.S.C. Secs. 2680(h) and (a).

Mandel's suit is not based on a misrepresentation theory. He does not claim that he acted in reliance on a false statement. Rather, he asserts that the Park Service failed to act--to warn--when it had a legal duty to do so. Section 2680(h) of the FTCA "does not bar negligence actions which focus not on the Government's failure to use due care in communicating information, but rather on the Government's breach of a different duty." Block v. Neal, 460 U.S. 289, 297, 103 S.Ct. 1089, 1093, 75 L.Ed.2d 67 (1983). That duty in Mandel's case was the duty to warn of the hazards of swimming at Mud Cave. Thus the misrepresentation exception is not applicable.

The United States argues with little conviction that the discretionary function exception to the FTCA, 28 U.S.C. Sec. 2680(a), also bars Mandel's suit. We do not agree.

A panel of this court recently discussed in detail the nature and scope of the discretionary function exception to the FTCA. Aslakson v. United States, 790 F.2d 688 (8th Cir.1986). The court held that the discretionary function exception does not apply to governmental conduct that involves the execution of a previously adopted safety policy that is neither regulatory in nature nor in the nature of administrative decision-making grounded in...

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