Mandel v. U.S., 82-2053

• Citation: 719 F.2d 963
• Decision Date: 22 December 1983
• Docket Number: No. 82-2053,82-2053
• Parties: Michael MANDEL, Appellant, v. UNITED STATES of America and Insurance Company of North America, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 963

719 F.2d 963

Michael MANDEL, Appellant, v. UNITED STATES of America and Insurance Company of North

America, Appellees.

No. 82-2053.

United States Court of Appeals,

Eighth Circuit.

Submitted April 12, 1983.

Decided Oct. 28, 1983.

Rehearing Denied Dec. 22, 1983.

J. Paul McGrath, Asst. Atty. Gen., W. Asa Hutchinson, U.S. Atty., Robert S. Greenspan, William Cole, Attys., Appellate Staff Civ. Div., Dept. of Justice, Washington, D.C., for appellee United States.

Bassett, Bassett & Bassett, W.W. Bassett, Jr., Fayetteville, Ark., for appellee Insurance Co. of North America, Inc.

Robert C. Compton, Brown, Compton & Prewett, Ltd., El Dorado, Ark., for appellant.

Before LAY, McMILLIAN and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Michael Mandel appeals from the district court's grant of summary judgment for defendants United States of America and Insurance Company of North America on his claim for damages under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b). Mandel was injured in Buffalo River National Park when he dived from a rock into a swimming hole and struck his head on a submerged rock in the Buffalo River. Mandel contends that the district court's granting of summary judgment was improper because (1) the Arkansas Recreational Use Statute does not apply to limit the liability of the United States, and (2) there is a genuine issue of material fact concerning whether the conduct of the defendants was willful or malicious. For the reasons stated below, we reverse the grant of summary judgment for the defendant United States and remand to the district court for trial. We affirm the grant of summary judgment as to defendant Insurance Company of North America.

In this appeal from a summary judgment, all facts must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences to be drawn from the facts. Portis v. Folk Construction Co., Inc., 694 F.2d 520, 522 (8th Cir.1982).

Michael Mandel alleges that he was severely injured as the result of the willful and wanton conduct of the defendants. At the time of the accident, August 1, 1981, Michael Mandel, then twenty-one years old, was employed as a camp counselor by the St. Louis Jewish Community Center Association. He visited the Buffalo River National Park in North Arkansas in mid-July 1981, in order to locate camping, hiking and swimming sites for a group of teenagers whom he was going to take camping at the park. According to Mandel's deposition testimony, Mandel approached a National Park Service Ranger at a point known as Kyles Landing on the Buffalo River, and asked where the ranger recommended that campers go swimming. The ranger recommended a swimming hole known as Mud Cave. Mandel testified that the Park Ranger, in recommending this particular swimming area, said "that is where everybody goes and that is where we recommend for you to go."

Approximately two weeks later Mandel and two friends returned to the Buffalo River National Park to visit the site where they proposed to take their camping group, and they went swimming at Mud Cave. While swimming, Mandel dived from a rock into the swimming hole. He struck his head on a large rock which was submerged four to five feet under the water, and which was not visible from the surface. Mandel broke his neck and was rendered quadriplegic by the accident.

The Mud Cave swimming hole was a popular swimming area for campers. Despite this fact, however, the National Park Service had never inspected it for potential safety hazards, and was unaware of the presence of the submerged rock until after the accident occurred. After Mandel was injured, a Park Service employee inspected the area and found the rock on which Mandel had struck his head.

The National Park Service was aware of the danger of submerged rocks, as evidenced by their brochures warning campers to be careful in diving. They did not, however, post any type of warning at Mud Cave, and the Ranger who spoke to Mandel and recommended the Mud Cave swimming hole did not indicate any possible dangers.

Mandel contends that the action of the Park Ranger in recommending the Mud Cave area as the place to swim, when in fact the Ranger was unaware of the hidden danger of submerged rock, constituted willful and wanton conduct resulting in his injury. Mandel argues that, had the government acted properly and discovered the rock before recommending the swimming hole, they could have either warned Mandel verbally or could have posted a sign, which would have prevented his injury.

In reviewing a district court decision granting a motion for summary judgment, we apply the same standard as the trial court. Portis, supra, 694 F.2d at 522.

Summary judgment should be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ralph's Distributing Co. v. AMF, Inc., 667 F.2d 670, 672 (8th Cir.1981). Summary judgment is an extreme remedy and is not to be granted unless the moving party has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances. Portis, supra, 694 F.2d at 522.

This appeal raises the questions of whether the Arkansas Recreational Use Statute, Ark.Stat.Ann. Sections 50-1101 to 50-1107, is applicable to the United States in this context, and if it is, whether the conduct of the United States was willful or malicious.

I.

The plaintiff argues that the Arkansas Recreational Use Statute ¹ is not applicable to the United States as a landowner. As support for his argument plaintiff cites Miller v. United States, 597 F.2d 614 (7th Cir.1979), a case decided under the Illinois recreational use statute.

We agree with the district court that Miller is inapposite to this case. The court's decision in Miller turned on the interplay between the Illinois recreational use statute and an Illinois licensing act. In Miller, the court found that the Illinois Recreational Use of Land and Water Areas Act ² was inapplicable to the United States because another Illinois statute, the Recreational Area Licensing Act ³ specifically applied to the property in question. Since Arkansas has no statute equivalent to the Illinois Recreational Area Licensing Act which would apply here, Miller is not support for the argument that the Arkansas Recreational Use Statute does not apply to the United States.

Other Circuits have uniformly held that state recreational use statutes do apply to the United States. See, e.g. Jones v. United States, 693 F.2d 1299 (9th Cir.1982); Simpson v. United States, 652 F.2d 831 (9th Cir.1981); Otteson v. United States, 622 F.2d 516 (10th Cir.1980). Plaintiff argues forcefully, however, that the Arkansas Recreational Use Statute is not applicable to the United States since the purpose of the statute is to encourage private landowners to "make land and water areas available to the public for recreational purposes," ⁴ while the United States has an independent duty to maintain the national parks as public recreational areas. ⁵ Plaintiff's argument is basically that since the United States, through the National Parks Services, has already been given the duty of establishing land and waterways for public recreation and use, the Arkansas Recreational Use Statute offers no additional incentive and, therefore, is inapplicable.

We recognize the incongruity that results when the Recreational Use Statute is applied to the United States as landowner in relation to a national park. However, after reviewing the language of the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b) and 2671-2680, under which plaintiff brings his claim, we conclude that the Arkansas Recreational Use Statute is applicable to the United States.

Under the Federal Tort Claims Act the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. Sec. 2674. There is no question that a private individual could take advantage of the limited liability provided by the Arkansas Recreational Use Statute; consequently, such protection is also available to the United States. "[T]he test established by the Tort Claims Act for determining the United States' liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred." Rayonier v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 376, 1 L.Ed.2d 354 (1957). Applying this test the liability of the United States is limited by the Arkansas Recreational Use Statute to the same extent as the liability of a private person.

II.

Although the Arkansas Recreational Use Statute limits a landowner's liability, a landowner is still liable for "wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity." Ark.Stat.Ann. Sec. 50-1106. The district court held therefore that Mandel must show that defendants knew or should have known of the dangerous condition and the probability of injury. Mandel v. United States of America, 545 F.Supp. 907, 913 (W.D.Ark.1982).

In granting summary judgment for the defendants, the district court made several specific findings of fact, in apparent contradiction to Rule 56 of the Federal Rules of Civil Procedure. See Burgert v. Union Pacific Railroad, 240 F.2d 207, 210 (8th Cir.1957). In particular it found that:

(1) neither defendant had knowledge of the submerged rock nor had reason to know of the existence of the submerged rock; (Finding number 11 in district court opinion.)

(2) neither defendant had reason to believe that a foreseeable injury was likely or probable; (Finding number 11 in district court opinion.)

(3) there is no evidence of willful or malicious failure to guard or warn against a dangerous condition, or of willful or wanton conduct on the...