Miller v. U.S.

• Decision Date: 03 October 1991
• Docket Number: No. 89-16091,89-16091
• Citation: 945 F.2d 1464
• Parties: Danny Wayne MILLER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1464

945 F.2d 1464

Danny Wayne MILLER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 89-16091.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 13, 1990.

Submission Deferred April 16, 1991.

Resubmitted Sept. 27, 1991.

Decided Oct. 3, 1991.

Appeal from the United States District Court for the District of Arizona.

Before TANG, FLETCHER and REINHARDT, Circuit Judges.

PER CURIAM:

Appellant Danny Wayne Miller appeals from the district court's grant of summary judgment in favor of the defendant, United States, in an action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 and 2671 et seq. In opposition to the United States motion for summary judgment, Miller argued, inter alia, that a genuine issue of material fact exists as to the duty of care the government owed him. He presented evidence that although the government possessed actual knowledge of the dangerous condition that caused his injuries, it failed to post any warnings or provide any safeguards. Miller asserted that this knowledge constitutes "wilful or malicious failure" under Arizona law. The district court concluded that no reasonable juror could find that the defendant employees' conduct amounted to "wilfulness" or "malice" within the meaning of the Arizona Recreational User Act, Arizona Revised Statutes (A.R.S.) § 33-1551. 723 F.Supp. 1354 (D.Ariz.1988). We reverse.

I.

On November 3, 1984, Danny Miller, age 17, went on a family outing to the Prescott National Forest, located in Yavapai County, Arizona. The Miller family entered the Forest through a gate with a United States Forest Service sign attached that read "please close the gate." The U.S. Forest Service, which had and continues to have jurisdiction over the Prescott National Forest, permitted use of this area for recreational purposes and was aware that recreational users, such as the Miller family, frequented the area.

After lunch, Miller decided to take his motorcycle "for one last ride" down a roadway directly connected to a staging area where earlier the family had unloaded their belongings. This roadway was Old Highway 279. While riding upon Old Highway 279, Miller was propelled toward an embankment of a dry wash bed, as the road beneath him suddenly disappeared. The road had at one time crossed a wash; its surface had rested on top of a metal culvert. Unknown to Miller, the culvert had been removed, and the road surface was no longer in existence. Instead, there was only a large, gaping area--the wash. There were no warning signs, barricades, or other notices of the danger on Old Highway 279, or in or around the wash--the area where the road surface no longer existed--to alert drivers to the hazard, or to prevent them from encountering, the dangerous condition. Totally unaware of the danger, Miller rode down the road and landed in the wash area over which the road had once crossed. Miller crushed his ankle in the accident and as a result suffered severe and permanent impairment of his mobility. At the time of his accident, Yavapai County held the roadway easement with respect to Old Highway 279. However, the United States, through the Department of Agriculture and the Forest Service, owned the land under and surrounding the roadway easement, including the wash. ¹

II.

We review de novo the district court's grant of summary judgment. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). Viewing the evidence in the light most favorable to the non-moving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. We construe the term "wilful or malicious failure to guard or warm" under the Arizona Recreational Use Statute, as we believe the Arizona Supreme Court would. See McMurray v. United States, 918 F.2d 834 (9th Cir.1990).

III.

The Federal Tort Claims Act confers jurisdiction upon federal district courts for claims against the United States for money damages under the following circumstances:

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). As the terms of the Act expressly provide, the substantive law of the place where the allegedly negligent act or omission occurred governs suits brought against the United States under the FTCA. Because Miller's injuries occurred in the State of Arizona, we must look to that State's law in evaluating his claim. Id.

Subsection (A) of A.R.S. § 33-1551, the Arizona Recreational User Statute, provides that an owner, lessee or occupant of premises does not:

1. Owe any duty to a recreational user to keep the premises safe for such use.

2. Extend any assurance to a recreational user through the act of giving permission to enter the premises that the premises are safe for such use.

3. Incur liability for an injury to persons or property caused by any act of a recreational user.

. . . . .

[However,] [t]his section does not limit the liability which otherwise exists for maintaining an attractive nuisance, or for wilful or malicious failure to guard or warn against a dangerous condition, use or activity.

Thus, the statute immunizes landowners from liability unless they have maintained an attractive nuisance or have wilfully or maliciously failed to warn or guard against a dangerous condition. At issue in this appeal is whether the United States Forest Service employees' alleged acts or omissions fall within the "wilful or malicious failure to guard or warn" exception of the statute.

The United States, for summary judgment purposes, admitted that its employees (1) knew of the removal of the culvert on Old Highway 279 at the site of Miller's accident, (2) knew that the roadway was used by off-road vehicles, (3) knew that the absence of the culvert presented a dangerous condition to recreational users of the roadway, and (4) failed to warn or guard against this dangerous condition. The government contends that these admitted facts establish simple negligence not wilful or malicious failure. ² We disagree.

In Southern Pacific Transportation Co. v. Lueck, 111 Ariz. 560, 535 P.2d 599 (1975), the Arizona Supreme Court defined wilful misconduct as "intentional, wrongful conduct, done either with knowledge that serious injury to another probably will result or with a wanton and reckless disregard of the possible results...." Lueck, 535 P.2d at 602. Arizona courts have not directly defined the term "wilful" as it is used in the Recreational User Statute. However, since the recreational use statute is in derogation of the common law, we construe it strictly and "take care to avoid an overbroad interpretation ... that would afford immunity that was not intended." Ducey v. United States, 713 F.2d 504, 510 (9th Cir.1983). The Arizona Court of Appeals recently concluded that the recreational user's statute is in derogation of the common law and therefore must be strictly construed. Walker v. City of Scottsdale, 163 Ariz. 206, 786 P.2d 1057, 1062 (Ariz.App.1989), review denied, 163 Ariz. 206, 786 P.2d 1057 (Ariz.1990). Absent any convincing evidence that the Arizona legislature intended to define the term differently than its common law meaning, we conclude, as did the district court, that the definition set forth in Lueck applies in this context also.

In cases in which wilfulness is an issue, "summary judgment should be granted with caution, since questions such as intent or motive are presented." Simpson v. United States, 652 F.2d 831, 834 (9th Cir.1981) (citing Gard v. United States, 594 F.2d 1230, 1234 n. 2 (9th Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1976)). As the Arizona Supreme Court stated in Lueck, the question of wilful conduct is "essentially a question of fact." Lueck, 535 P.2d at 602. ³

Here, the facts, which are undisputed for purposes of summary judgment, would, if true, justify the conclusion that the government's failure to warn was wilful--i.e. made with reckless disregard for the possible result. The undisputed facts are that the Forest Service was aware of the washed-out portions of Old Highway 279, knew that people used the area for recreational purposes, and believed that the wash-outs posed a significant hazard to recreational users. Notwithstanding these "facts," the Forest Service did not post a warning of any kind to alert users of the roadway to the dangerous condition caused by removal of the culvert. Nor did it take any other action to protect recreational users from the dangerous condition. These "facts," all of which are admitted as true by the government for summary judgment purposes, are sufficient at the very least to raise a genuine issue of material fact, precluding summary judgment.

The government contends that Arizona courts have refused to find defendants conduct wilful or wanton under facts similar to this case. It cites Kemp v. Pinal County, 13 Ariz.App. 121, 474 P.2d 840 (1970) and Webster v. Culbertson, 158 Ariz. 159, 761 P.2d 1063 (1988) as the two principal cases in support of this contention. Both cases are clearly distinguishable. In Kemp, the Arizona Court of Appeals held that the trial court properly refused to give the jury a gross or wanton negligence instruction where the county failed to erect signs warning of the existence of an intersection. The plaintiff in Kemp proffered no evidence that the county knew of the dangerous condition. The court of appeals noted that "[t]he intersection had recently been paved ... and no previous accidents had occurred at this intersection since its improvement." Id. 474 P.2d at 844. The appellate court also observed that the...