Mandel v. United States, Civ. No. 80-3025.

• Decision Date: 06 August 1982
• Docket Number: Civ. No. 80-3025.
• Citation: 545 F. Supp. 907
• Parties: Michael MANDEL, Plaintiff, v. UNITED STATES of America, Boy Scouts of America, and Insurance Company of North America, Defendants.
• Court: U.S. District Court — Western District of Arkansas

545 F. Supp. 907

Michael MANDEL, Plaintiff, v. UNITED STATES of America, Boy Scouts of America, and Insurance Company of North America, Defendants.

Civ. No. 80-3025.

United States District Court, W. D. Arkansas, Harrison Division.

August 6, 1982.

Morris J. Levin, Levin & Weinhaus, St. Louis, Mo., Robert C. Compton, Brown, Compton & Prewett, Ltd., El Dorado, Ark., for plaintiff.

J. Michael Fitzhugh, Asst. U. S. Atty., Fort Smith, Ark., Donald J. Adams, Adams, Covington & Younes, Harrison, Ark., W. W. Bassett, Jr., Bassett, Bassett & Bassett, Fayetteville, Ark., for defendants.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Introduction

Plaintiff instituted this action on June 23, 1980, against the United States of America, pursuant to 28 U.S.C. § 1346(b), commonly known as the Federal Torts Claims Act, and against the Boy Scouts of America and its insurer, Insurance Company of North America, pursuant to 28 U.S.C. § 1332, based upon diversity of citizenship.

On August 20, 1980, defendant, Boy Scouts of America, was dismissed from the action and plaintiff was allowed to proceed against defendant, Insurance Company of North America, pursuant to Ark.Stat.Ann. § 66-3240.

On February 8, 1982, and March 23, 1982, defendants, United States of America and Insurance Company of North America, respectively, moved for summary judgment. Plaintiff has timely responded and the issues are ripe for resolution. The Court has carefully considered the pleadings, the briefs of the parties, and discovery relevant to the issues raised, and makes the findings of fact and conclusions of law set forth below, separately stated.

FINDINGS OF FACT

1. Plaintiff is a citizen and resident of the State of Missouri.

2. This claim arises under 28 U.S.C. § 1346(b) and 28 U.S.C. § 1332.

3. Defendant, Insurance Company of North America, is the insurer of former defendant, Boy Scouts of America. Arkansas' direct action statute, Ark.Stat.Ann. § 66-3240, is applicable to the facts.

4. Plaintiff alleged that while on certain property owned by the National Park Service within the boundaries of the Buffalo National River, he decided to go in swimming at Kyle's Landing.

5. Kyle's Landing is located within the boundary of Camp Orr, adjacent property to the National Park Service Property, and is owned by the Boy Scouts of America.

6. Plaintiff dove into the water and struck his head on a submerged rock four or five feet beneath the surface, causing the injuries and damages of which he complains.

7. Plaintiff alleges that employees of the National Park Service and the Boy Scouts of America knew that persons would use the facility with their permission, and failed to adequately warn divers of the presence of submerged rocks.

8. Two weeks prior to the accident, plaintiff was advised by uniformed personnel that the place of the accident was a place in which others regularly swam. Christopher Kirby, a counselor for the Boy Scouts of America, agreed to assist plaintiff in locating a safe place in which to swim upon plaintiff's return to the area.

9. The United States had no knowledge of plaintiff's presence on the property on the date in question. Neither did it have reason to be aware of plaintiff's presence on the property on that date.

10. Plaintiff was engaged in the recreational use of the land where the injury occurred. Plaintiff used the land for such purposes without charge, and was so engaged at the time of the injury.

11. Neither defendant had knowledge of the submerged rock. Similarly, neither defendant had reason to know of the existence of the submerged rock. Neither did they have reason to believe that a foreseeable injury was likely or probable.

12. There is no evidence of willful or malicious failure to guard or warn against a dangerous condition on the part of the Boy Scouts of America or the United States.

13. There is no evidence of willful or wanton conduct on the part of the Boy Scouts of America or the United States.

14. The evidence does not admit of the slightest doubt that a genuine issue of material fact is not presented.

DISCUSSION

Plaintiff alleged in his complaint that while on certain property owned by the National Park Service within the boundaries of the Buffalo National River, he decided to go in swimming at Kyle's Landing. Kyle's Landing is located within the boundary of Camp Orr, adjacent property to the National Park Service property owned by the Boy Scouts of America. Plaintiff dove into the water and struck his head on a submerged rock causing the injuries and damages of which he complains.

Plaintiff alleged that employees of the National Park Service and the Boy Scouts of America knew that persons would use the facility with their permission, and failed to adequately warn divers of the presence of submerged rocks, and failed to properly mark or otherwise delineate safe diving areas.

The United States argues that the Buffalo River is a non-navigable river. Therefore, says the government, the riparian landowner holds title to the center of the stream. Thus, the argument continues, the Boy Scouts of America owned all of the property involved, and therefore the United States could not be liable for injuries sustained outside its property.

Defendant, Insurance Company of North America, asserts that the Buffalo River is a navigable river. Therefore the riparian owner's title extends only to the high water mark of the river. Since the Boy Scouts of America lack control or ownership, defendant argues that it was under no duty to the plaintiff.

The discovery undertaken by the parties shows that plaintiff was employed by the Jewish Community Center Association of St. Louis, Missouri, as a Hobbying Counselor, and was concerned with locating a safe spot for the young campers to swim. Approximately two weeks prior to the accident, the plaintiff and others had been in the same locale when some person, assumed to be a Park Ranger, advised him that others regularly swam at the place of the accident.

On this same earlier trip, plaintiff met Christopher Kirby, employed by the Boy Scouts of America as a counselor. Christopher Kirby, because of his knowledge of the area, agreed to assist plaintiff and the other counselors upon their return to the Buffalo River National Park. Christopher Kirby joined plaintiff's group and they decided to swim where the Park Ranger had recommended, a place where Christopher Kirby and the Boy Scouts regularly swam and dived.

At this location there is a rope swing affixed to a tree on the bank. In the river itself is a large rock frequently used as a place from which to dive into the river. Plaintiff dived, hit his head on a rock, broke his spinal column cord at the C-6 level, and became permanently quadriplegic.

Plaintiff notes that the boundary between Camp Orr and the National Park is not marked in any way; certain brochures published by the National Park Service available at Ranger Stations depict the entire area as being part of the Buffalo National Park under the superintendency and direction of the United States Park Service; and various National Park Service signs are posted on the premises of Kyle's Landing.

Thus, plaintiff, citing several cases from other states, argues that liability for injuries caused by defective premises attaches to any party who has asserted or maintained control over the premises. Plaintiff asserts that the same rule attaches where one encourages others to enter or utilize certain property.

In response, defendant, Insurance Company of North America, contends that the issue of navigability governs ownership of the place of injury, and that the proper categorization of plaintiff as trespasser/licensee/invitee under Arkansas law shows that no duty was owed to the plaintiff, and hence the Boy Scouts of America as insured, could not be liable as a matter of law. Both defendants contend that, in any event, neither of the defendants can be liable to plaintiff because of the provisions of Ark.Stat.Ann. § 50-1101 et seq.

Ark.Stat.Ann. § 50-1101 et seq., commonly referred to as Arkansas' "Recreational Use Statute," provides:

The purpose of this act §§ 50-1101 — 50-1107 is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

Ark.Stat.Ann. § 50-1102(c) defines "recreational purpose" as including, non-exclusively, the following: hunting, fishing, swimming, boating, camping, picnicing, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic or scientific sites.

Ark.Stat.Ann. § 50-1103 limits liability thusly:

Except as specifically recognized by or provided in § 50-1106 of this act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on such premises to persons entering for such purposes.

Liability is further limited by Ark.Stat. Ann. § 50-1104:

Except as specifically recognized by or provided in § 50-1106 of this act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

(a) Extend any assurance that the premises are safe for any purpose.

(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.

(c) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such person.

The standard of care is set forth in Ark. Stat.Ann. § 50-1106:

Nothing in this act limits in any way liability which otherwise exists:

(a) For wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.

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This standard of care is essentially that stated in AMI 1101, i.e., actual or...