McFeely v. US, IP 87-82-C.

• Citation: 700 F. Supp. 414
• Decision Date: 18 November 1988
• Docket Number: No. IP 87-82-C.,IP 87-82-C.
• Parties: Carolyn J. McFEELY and Robert T. McFeely, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Indiana

700 F. Supp. 414

Carolyn J. McFEELY and Robert T. McFeely, Plaintiffs, v. UNITED STATES of America, Defendant.

No. IP 87-82-C.

United States District Court, S.D. Indiana, Indianapolis Division.

November 18, 1988.

Charles G. Reeder, Holland & Holland, Indianapolis, Ind., for plaintiffs.

Sally M. Rider, Trial Atty., Torts Branch, U.S. Dept. of Justice, Washington, D.C., Gerald Coraz, Asst. U.S. Atty., Indianapolis, Ind., for defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

McKINNEY, District Judge.

This is an action against the United States of America brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., arising out of personal injuries sustained by plaintiff Carolyn McFeely while canoeing on the premises of the Camp Atterbury facility in Indiana. The cause comes before the Court on the motion for summary judgment filed by the United States of America, the plaintiff's response opposing the motion, and the defendant's response thereto filed on June 10, 1988. Oral argument has not been requested, nor does the Court find it necessary or appropriate in accordance with Local Rule 11. The matter is ready for resolution, and for the reasons set forth below, the Court hereby GRANTS the motion for summary judgment in favor of the United States of America and against the McFeelys. JUDGMENT FOR THE DEFENDANT IS ENTERED ACCORDINGLY.

I. Undisputed Facts:

Plaintiffs Robert and Carolyn McFeely are husband and wife and reside in the Southern District of Indiana. On June 9, 1984, Mrs. McFeely was canoeing on the Driftwood River on the premises of the Camp Atterbury Military Reservation in Bartholomew County, Indiana. Camp Atterbury is controlled and occupied by the Indiana National Guard; the record does not reflect whether the State of Indiana or the United States of America owns the land at Camp Atterbury. Plaintiffs did not pay any admission fee or other consideration to the United States nor to anyone else for the use of the Driftwood River. The United States does not charge or collect, on behalf of Camp Atterbury or the United States, an admission fee or payment of any kind for the use of the Driftwood River.

As Mrs. McFeely approached the Hendricks Ford Bridge in her canoe, Cadet Martin T. Hehman collided with her while participating in a training drill known as a "slide for life" exercise. Mrs. McFeely suffered serious personal injuries as a result of the collision. Her husband has suffered a loss of his wife's services, society, and companionship.

Cadet Hehman was a member of the Junior Reserve Officers' Training Corps ("JROTC") at the time of the incident. Cadet Hehman's activities in the slide for life exercise were controlled and supervised by the JROTC. The JROTC program is authorized by the provisions of 10 U.S.C. § 2031. JROTC is a cooperative effort by the United States and local school corporations to promote and instill qualities of leadership and discipline in young men and women in secondary educational institutions. By statute, the Secretary of the military department involved (Army, Navy, or Air Force) shall support JROTC by detailing retired officers under his jurisdiction to serve as administrators and instructors in JROTC; providing necessary text materials, equipment, and uniforms; and, establishing minimum acceptable standards for performance and achievement. By statute, retired officers serving as a administrators or instructors of JROTC are not considered to be on active duty or inactive duty training for any purpose.

Retired officers who serve as JROTC instructors are paid by the local school corporation. The school is then reimbursed for half of the salary by the United States. The JROTC unit to which Cadet Hehman was attached was established and administered by Indianapolis Public Schools ("IPS"). The JROTC unit in question was personally administered by Lieutenant Colonel Don Clark, United States Army (Retired). Clark has served as Director of the IPS JROTC unit since he retired from the United States Army in 1976. Clark is paid bi-weekly by IPS, and works out of his office at Arsenal Technical High School in Indianapolis. Colonel Clark oversees eight units of the JROTC program at eight different IPS high schools. Clark's formal title is "Director of Army Instruction for the Indianapolis Public Schools." His immediate supervisor in IPS is Dr. Highland, the director of secondary education for IPS. Colonel Clark is furnished a vehicle by the United States Army. The uniforms and materials for use in JROTC training are provided to the school corporations by the United States Army.

At the time of the incident in question, there were in effect official government regulations published in 32 Code of Federal Regulations Part 111, entitled "Reserve Officers' Training Corps Program for Secondary Educational Institutions." These regulations provide that the secondary educational institution that establishes the JROTC unit "is the employing agency"; that the Secretary of the branch of the services involved shall evaluate "annually the operation, administration, and effectiveness of the overall Junior ROTC programs"; and that the retired officer-instructors "are employees of the school and are responsible to school authorities for the conduct of the JROTC program." IPS retained the authority to hire, fire, assign, and reassign JROTC instructors.

II. Summary Judgment Standards:

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Further, Rule 56(e) provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

While these rules were formerly viewed with some hostility by the federal courts and were sparingly used in disposing of insufficient claims or defenses, see, e.g., Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), the Supreme Court has recently instructed the district courts to follow the mandatory aspects of Rule 56 and enter summary judgment where appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Celotex Court wrote:

Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the rule, prior to trial, that the claims and defenses have no factual basis.

Celotex, 477 U.S. at 327, 106 S.Ct. at 2555.

The Seventh Circuit has noted and readily embraced the change in attitude towards Rule 56. For instance, in affirming an entry of summary judgment, one panel of the court wrote, "When it is plain that a trial could have but one outcome, summary judgment is properly granted to spare the parties and the court the time, the bother, the expense, the tedium, the pain, and the uncertainties of trial." Spellman v. Commissioner, 845 F.2d 148, 152 (7th Cir.1988). Similarly, in Collins v. Associated Pathologists, Ltd., 844 F.2d 473 (7th Cir.1988), another panel recently expounded on the proper application of Rule 56 in light of the Supreme Court's new directives. In Collins, the court first noted that "the Supreme Court has made clear that, contrary to the emphasis of some prior precedent, the use of summary judgment is not only permitted but encouraged in certain circumstances...." 844 F.2d at 475. After citing to the trilogy of Supreme Court summary judgment cases, the Seventh Circuit explained the change in attitude towards Rule 56 at length, writing:

This language from the summary judgment cases indicates that a summary judgment motion is like a trial motion for a directed verdict and that `genuine' allows some quantitative determination of the sufficiency of the evidence. The trial court still cannot resolve factual disputes that could go to a jury at trial, but weak factual claims can be weeded out through summary judgment motions. The existence of a triable issue is no longer sufficient to survive a motion for summary judgment. Instead, the triable issue must be evaluated in its factual context, which suggests that the test for summary judgment is whether sufficient evidence exists in the pre-trial record to allow the non-moving party to survive a motion for directed verdict.

Collins, 844 F.2d at 476 (citation omitted).

It is also clear that a properly supported motion for summary judgment "cannot be defeated merely by an opposing party's incantation of lack of credibility over a movant's supporting affidavit." Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir.1988). An unsupported assertion that a movant's affidavit should not be taken as true for purposes of summary judgment does nothing to create a genuine issue of material fact. Id. And, it is settled that Rule 56 requires the non-movant to come forth with admissible evidence in opposition to a properly supported motion for summary judgment. 10A C. Wright and A. Miller, Federal Practice and Procedure, § 2727 at 156 (1983). Hearsay evidence that does not qualify under any of the hearsay exceptions may not be considered by the courts in...