Miller v. United States

• Citation: 442 F. Supp. 555
• Decision Date: 02 December 1976
• Docket Number: No. 73 C 1798.,73 C 1798.
• Parties: Richard Paul MILLER, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Illinois

442 F. Supp. 555

Richard Paul MILLER, Plaintiff, v. UNITED STATES of America, Defendant.

No. 73 C 1798.

United States District Court, N. D. Illinois, E. D.

December 2, 1976.

Herbert P. Veldenz, Chicago, Ill., for plaintiff.

Thomas P. Sullivan, U. S. Atty., William F. Murphy, Asst. U. S. Atty., Chicago, Ill., for defendant.

MEMORANDUM DECISION

MARSHALL, District Judge.

This is an action brought by plaintiff, Richard Miller, against defendant, United States of America, under the Federal Tort Claims Act to recover damages for personal injuries plaintiff suffered when he dove into shallow water in Crab Orchard Lake which is owned by defendant. Jurisdiction is here under 28 U.S.C. §§ 1346, 2671-2680. Plaintiff alleges that he was in the exercise of ordinary care for his own safety and that his injuries were proximately caused by defendant's negligence in failing to post signs indicating the depth of the water, failing to warn plaintiff of the shallowness of the water and allowing members of the public to swim and dive in an unsafe area. Defendant denies any negligence on its part, denies that plaintiff was in the exercise of ordinary care for his own safety, and alleges affirmatively that plaintiff assumed the risk, that plaintiff's injuries were proximately caused by his own negligence, that plaintiff's injuries were proximately caused by a person or persons unknown to defendant, and that in order to recover, plaintiff must show that defendant was guilty of "willful or malicious failure to guard or warn against a dangerous condition" in light of the provisions of the Illinois Recreational Use of Land and Water Areas Act, Ill.Rev.Stat. ch. 70, §§ 31-37, which defendant asserts is applicable and controlling here. Plaintiff replies that the Illinois Recreational Use of Land and Water Areas Act is not applicable to defendant. Alternatively, at the close of all of the evidence, plaintiff was granted leave to amend his complaint to conform with the proof and to allege a willful and wanton failure by defendant to perform the duties owed plaintiff and the general public. The cause has been tried without a jury on the issue of liability, damages being reserved under Rule 42(b) Fed.R.Civ.P. No evidence was adduced in support of defendant's third affirmative defense, i. e., that plaintiff's injuries were proximately caused by a person or persons unknown to the defendant. Accordingly, that defense is stricken. The parties agree that under the Tort Claims Act, the law of Illinois controls. 28 U.S.C. § 2674. This memorandum will stand as our findings of fact and conclusions of law under Rule 52(a), Fed.R.Civ.P.

The Crab Orchard National Wildlife Refuge is situated in southern Illinois in the general vicinity of the cities of Carbondale, Carterville, Herrin and Marion. It is owned and operated by the United States Department of the Interior. Included in the refuge is Crab Orchard Lake, a 7,000 acre body of water with a shoreline of 127 miles. The east one-third of the lake is a wildlife sanctuary where the only permitted activity is fishing. The west two-thirds of the lake are open to the public and are used for all types of water activities, swimming, boating, water skiing and fishing. The boundary between the restricted area to the east and the public area to the west is marked by buoys and signs.

At the far west end of the lake, there is an improved area known as the west end boat dock which is where the incident in question occurred. It is served by a paved road or driveway into it from Spillway Road (which is one of the major thoroughfares around the lake); a paved ramp into the lake where boats may be launched off trailers; a rest room facility; a mowed grassy area with numerous trees; a sturdy wooden pier extending 50 feet into the water; and two paved parking areas, one adjacent to the boat ramp, the other adjacent to but separated from the pier by the grassy area and trees. The piers and the boat ramp are separated by the grassy area, trees and a small point or promontory of land with the result that the pier and boat ramp are not visible from one another. The pier was equipped with a rubber boat bumper (made from old fire hose) across the end which extends into the water. The pier was not equipped with a swimmer's ladder or raft.

At the intersection of the road which goes into the west end boat dock from Spillway Road, there was a sign which read "Boat Launching." That sign was some 1500 feet from the area. There were no signs in the vicinity of or adjacent to the boat ramp, the pier, the parking lots, the grassy area or the rest rooms. Specifically, there were no signs which prohibited swimming or diving.¹ There were, however, "No Swimming" signs posted at the spillway (or dam) where Spillway Road crosses it, at the Playport Boat Marina and in Devil's Lake and Grassy Lake, both of which are connected to Crab Orchard Lake.

About a quarter mile south on Spillway Road and a quarter mile east across the water from the west end boat dock were two areas where swimming was permitted. There is no evidence of the extent of their use on the day in question.

The water level of the lake varies as much as 12 inches over a summer season and in the fall the lake level is reduced 18 inches by opening the spillway. One of the plaintiff's witnesses, Fran Lence, had previously gone swimming at the west end boat dock. She testified that in June, 1970 when she was there, the water adjacent to the pier came up to about her shoulder. She is 5' 4" tall, so one can infer that the water on that occasion was about 4-4½ feet deep. In contrast is the testimony of plaintiff's witness, Jo Ann Duffy, who entered the water on the day in question to aid plaintiff after the occurrence. The water came up to about her hip, which in court measurements showed made the depth about 3 feet. Fran Lence also testified that when she was there in June of 1970, the water was within 3 or 4 inches of the top of the pier. On the other hand, Jo Ann Duffy testified that as she sat on the side of the pier on the day in question, her foot just touched the water. In court measurement showed this to be a distance of approximately 20 inches. In short, then, the depth of the water in the vicinity of the west end boat dock varied considerably from season to season and year to year.

The west end boat dock was not an authorized swimming area. However, the manager of the Crab Orchard National Wildlife Refuge knew that people went swimming and wading and picnicking there.

In an appendix to a memorandum dated July 17, 1964 from the Regional Supervisor, Branch of Wildlife Refuges, Minneapolis, Minnesota (which had jurisdiction over Crab Orchard) to the Regional Recreational Specialist, Branch of Wildlife Refuges, Minneapolis, Minnesota, regarding the Crab Orchard National Wildlife Refuge Recreation Plan, the following was specifically recommended:

"Beaches should be properly cleaned and maintained at all times and improved by sanding. Safety should be emphasized by the use of signs, depth markers and buoys to mark safe swimming distances from shore. Lifeguards should be on duty with life saving equipment readily available.

"Warning signs giving notice that swimming is permitted only at designated beaches should be erected at all unsupervised locations where visitors are likely to swim." (Plaintiff's Exhibit 1, App. A, p. 2, emphasis added.)

It is undisputed that this recommendation was not followed in respect to the west end boat dock on the day of the occurrence in question.

Defendant's Exhibit 10, a printed brochure on the wildlife refuge, was posted on bulletin boards at various places throughout the refuge. In small type in the lower center of the inside of the brochure appears the statement:

"Swimming is permitted only at designated beaches. Lifeguards are stationed at these areas during periods of heavy use. Swimmers are cautioned to observe posted regulations for their own safety."

But it is undisputed that even this was not posted at the west end boat dock. Furthermore, the testimony showed that during periods of light use, lifeguards were not on duty at the designated swimming areas.

The shore from which the pier at the west end boat dock extends is quite rocky. The photographs in evidence depict rocks of such a nature as to lead to the inference that they were placed there to prevent erosion. But the rocks cease a few feet from shore and the bottom becomes sandy and gradually slopes down. The bottom remains visible for 8 or 10 feet from the shore. As one goes out on the pier the water becomes murky and the bottom is no longer visible. Murkiness is a characteristic of the waters of Crab Orchard Lake because of its silt bottom.

On May 23, 1972 plaintiff, Richard Paul Miller, was 20 years old and in good health save for a 100% hearing loss in his right ear and a 40% loss in his left. He had been a swimmer and diver most of his life. He had been swimming in Crab Orchard Lake as a youngster with his family and as he recalled, he had gone to Carterville Beach with a friend the previous summer. He had not, however, ever been swimming at the west end boat dock and the day in question was his first visit to the lake in the summer of 1972.

When he was a youngster his mother told him that he should not dive into water of unknown depth. She tried to teach him to be careful. On cross examination he acknowledged that it is "common sense" not to dive into water of unknown depth and he grimly acknowledged that on the day in question he did not know the depth of the water at the west end boat dock.

On May 23 at about 2:30 a. m. Richard finished working his job as a counterman at a restaurant in Carbondale. He hitchhiked home to his trailer in Herrin and got to bed sometime between 5:30 and 6:30. Around noon four friends came to his trailer: three young women, Jo Ann Duffy, Fran Lence and Christine Kedziolka, and a young man, James Miller, not related to Richard....