Miller v. U.S., 78-1160
| Decision Date | 09 May 1979 |
| Docket Number | No. 78-1160,78-1160 |
| Citation | 597 F.2d 614 |
| Parties | Richard Paul MILLER, Plaintiff-Appellee, v. The UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Eloise Davies, App. Section, Civ. Div., Dept. of Justice, Washington, D. C., Thomas P. Sullivan, U. S. Atty., Chicago, Ill., for defendant-appellant.
Herbert P. Veldenz, Chicago, Ill., for plaintiff-appellee.
Before FAIRCHILD, Chief Circuit Judge, KILKENNY, Senior Circuit Judge, * and BAUER, Circuit Judge.
In this civil action arising under the Federal Tort Claims Act, the district court awarded Richard P. Miller one million dollars for injuries he sustained in a diving accident at the Crab Orchard National Wildlife Refuge in southern Illinois. The United States appeals from the lower court's judgment on the issue of liability. We affirm the decision for the reasons noted below.
As a first step, we must briefly outline the relevant facts. The Crab Orchard National Wildlife Refuge is owned by the United States and administered by the Department of the Interior. Within the refuge is a 7,000 acre lake, approximately two-thirds of which is open to the public for water-related activities such as boating, fishing, swimming and water skiing.
The accident in question occurred at a boat dock on the far west end of the lake. The dock area is served by a paved road from one of the major thoroughfares around the lake. It also includes a paved ramp that runs into the lake so that boats may be launched off trailers, a restroom facility, a mowed grassy area, a wooden pier that extends 50 feet into the water, and two paved parking areas. On the road that enters the dock, there is a sign that reads "Boat Launching." The area is not authorized for swimming or diving, but, at the time of the accident, there were no signs to that effect. The pier is not equipped with a swimmer's ladder or raft.
On May 23, 1972, twenty-year old Richard P. Miller arrived at the dock with a group of friends who had been searching for a place to go swimming. A swimmer and diver for most of his life, Miller had never been to the dock area before the day of the accident. Upon arrival, he removed his tank top and sandals, and walked on the pier to a point that was approximately ten feet from its end. The lake bottom at this point was not visible due to the murky water. Miller saw one man in the water toward the end of the pier who appeared to be treading water. In addition, he saw two or three people in the water along the left side of the pier about twenty feet from shore. After someone shouted that the water was "fine," Miller dove into the lake from the left side of the pier. The water depth, however, was only about three feet, and he apparently struck his head on the lake bottom. Miller is now a quadriplegic.
The threshold legal issue on appeal concerns the applicability of the Illinois Recreational Use of Land and Water Areas Act, Ill.Rev.Stat. ch. 70, §§ 31-37. The Act was passed "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." § 31. Accordingly, it provides that a landowner who permits his land to be used for recreational purposes has no duty of care to keep the premises safe for recreational use or to warn those who enter his land for recreational purposes of any dangerous condition thereon. § 33. However, the Act does not limit the landowner's liability for "willful or malicious failure to guard or warn against a dangerous condition." § 36(a).
On appeal, the United States argues that a private individual who operates a recreational facility similar to Crab Orchard Wildlife Refuge would be entitled to the protection of the Recreational Use of Land and Water Areas Act. If this is a correct reading of the law, then, under the Federal Tort Claims Act, the United States would be entitled to the same protection, 28 U.S.C. § 2674.
The district court found, however, that the United States' liability is governed by the Recreational Area Licensing Act, Ill.Rev.Stat. ch. 1111/2, §§ 761-785, rather than the Recreational Use Act. Noting that the two statutes should be read In pari materia, the court concluded that the Licensing Act applies to areas such as the Crab Orchard facility that are maintained primarily for recreational purposes, while the Recreational Use Act applies only to lands that are used on a "casual basis" for recreational purposes.
In our view, a fair reading of the statutes supports this construction. As was noted earlier, the central purpose of the...
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