Miller v. United States Dept. of Interior

• Decision Date: 20 November 1986
• Docket Number: No. G83-724 CA7.,G83-724 CA7.
• Citation: 649 F. Supp. 444
• Parties: Jerry E. MILLER, Plaintiff, v. UNITED STATES of America, DEPARTMENT OF THE INTERIOR, Defendants.
• Court: U.S. District Court — Western District of Michigan

649 F. Supp. 444

Jerry E. MILLER, Plaintiff, v. UNITED STATES of America, DEPARTMENT OF THE INTERIOR, Defendants.

No. G83-724 CA7.

United States District Court, W.D. Michigan, S.D.

November 20, 1986.

Thomas L. Phillips, Walton, Smith, Phillips & Dixon, Traverse City, Mich., for plaintiff.

John A. Smietanka, U.S. Atty., by Julie Woods, Ass't U.S. Atty., Grand Rapids, Mich., for defendants.

OPINION

HILLMAN, Chief Judge.

This action was brought by plaintiff, Jerry Miller, against defendant, United States of America, under the Federal Tort Claims Act to recover damages for personal injuries plaintiff sustained on August 5, 1980 when he jumped or fell from a rope swing into the Platte River in Sleeping Bear Dunes National Lakeshore Park, a national park located in northwest Michigan.

Sleeping Bear Dunes National Lakeshore Park was authorized by Congress in 1970. 84 Stat. 1075, 16 U.S.C. § 460x et seq. Consisting of approximately 71,000 acres of land and water along Lake Michigan, the park is noted for its scenic beauty. It is open to the public free of charge. Much of the park is undeveloped with forests and fields left substantially in their natural condition. There are many miles of lakes, streams, and shoreline of Lake Michigan within the park's border.

The purpose of the act creating the park is stated as follows:

"Be it enacted by the Senate and House of Representatives assembled, That (a) the Congress finds that certain outstanding natural features, including forests, beaches, dune formations, and ancient glacial phenomena, exist along the mainland shore of Lake Michigan and on certain nearby islands in Benzie and Leelanau Counties, Michigan, and that such features ought to be preserved in their natural setting and protected from developments and uses which would destroy the scenic beauty and natural character of the area. In order to accomplish this purpose for the benefit, inspiration, education, recreation and enjoyment of the public, the Secretary of the Interior (hereinafter referred to as the `Secretary') is authorized to take appropriate action, as herein provided, to establish in the State of Michigan the Sleeping Bear Dunes National Lakeshore. In carrying out the provisions of this Act, the Secretary shall administer and protect the Sleeping Bear Dunes National Lakeshore in a manner which provides for recreational opportunities consistent with the maximum protection of the natural environment within the area."

16 U.S.C. § 460x.

Since 1970 the National Park Service has acquired the property comprising the park through purchases and condemnation of property held by the State of Michigan, local government bodies and private parties.

The incident in question occurred in the park on the Platte River which is located in Benzie County, Michigan. Within the park the river is five miles long and flows in a northwesterly direction emptying into Lake Michigan. The river has a relatively slow current allowing upstream canoeing.

There are numerous homes and summer cottages along the river. Many are still privately owned with the owners holding life estates or long term leases with the National Park Service.

No fee is charged by the National Park Service for access to the Platte River or any other portion of the park except for a rental fee for camping in designated campgrounds within the park. A few public access points exist along the river bank. One such access point is the mouth of the river at Lake Michigan. At this access point there is a roadway and boat launching ramp maintained by Benzie County.

The site where plaintiff's accident occurred is approximately one quarter mile upstream from the access point just discussed. The site is at a bend in the river. The river is considerably wider at this point because of the bend. On one side of the river are privately owned homes. On the other side is a sandy beach where boaters frequently stop to picnic and sunbathe.

Plaintiff, age 19 and his female companion, on August 5, 1980, were canoeing on the Platte River and stopped at this sandy area. The river at this point created a small bay or cove. Directly across from the sandy picnic area is a bluff, covered primarily with shrubs and trees including an oak tree close to the bluff's edge. On the branch of this tree which projected out over the cove in the river, hung a long rope with a wooden horizontal handle attached at the end. The origin of this particular rope swing is unknown, although apparently either this swing or similar swings have been at this location off and on for many years. The rope was used by the general public to swing away from the bluff, out over the river and one would then drop into the river where the depth was somewheres around 6 to 7 feet. From where plaintiff and his friends were picnicking, plaintiff could look across the cove and see people swinging off the bluff and dropping into the river. He, himself, on numerous prior occasions had used the swing in the same manner. On this particular day after eating some chips and pop, and after having one "rum and coke", given to him by a friend, plaintiff swam across the cove to the bluff in question. At the time, there may have been as many as fifteen people using the swing. A line had formed made up of families, young and old, as well as others. Plaintiff testified he made fifteen to twenty "jumps" before he was injured. He estimated that it was his practice to swing out eight to ten feet, then let go of the swing. He entered the water feet first after an approximate ten foot drop. The water was estimated by plaintiff to be six to seven feet deep at the point of entry: "Over my head." It was his practice to go straight down into the river until his feet were on the bottom, then push off and return to the surface. On each occasion he experienced no difficulty, nor did any of the other participants. On his last swing/jump something unexpected and unexplainable occurred. When he let go of the rope swing over the river he apparently was off balance. Plaintiff was unable to explain precisely what happened. He conjectured he may have held the bottom of the swing too long or perhaps released one hand earlier than the other. Admittedly the swing did not break. Plaintiff struck the water off balance then hit the bottom of the river, fracturing his neck, resulting in total paralysis of his legs and severe impairment of his arm. The injuries and their consequences are permanent.

Although the park was established by Congress in 1970, the property where the plaintiff was injured was not transferred to the defendant until April 13, 1979. The park continued to grow each year as adjoining properties were purchased. Likewise, the use of the property also grew. On August 7, 1980 there were 10,887 campers, 8,460 swimmers and 7,303 canoers and boaters.

With respect to the swing itself, the parties have stipulated that during the summer season of 1979, between the months of May and September, William May, a Ranger employed by the defendant observed a rope swing hanging over the Platte River at the location of Jerry Miller's accident. Ranger May made no attempt to remove the swing or take any other steps to investigate the scene or the surroundings after he was aware of the existence of the rope swing. May did not report his observations of the swing to any other park employees or administrators until after he heard about the accident involving Jerry Miller. Ranger May did not work at the Platte River area of the Sleeping Bear Dunes Park after September 1, 1979.

In addition, although the parties disagree concerning the dangers inherent in a rope swing on the edge of the river, two park rangers testified by deposition that this type of swing at this location constituted a safety hazard to park visitors who might use the swing. On the other hand, plaintiff who at the time was nineteen (19) years of age, a good athlete, and who in fact lived on the river for many years did not consider the rope dangerous nor did he consider it a threat to the safety of the public. In addition, an elderly neighbor, James Benton, testified the cove was referred to by neighbors as the "rope hole" for many years. He testified his own children used the rope swing and according to him, "it looked safe to me."

The case was tried to the court without a jury on April 15 and 16, 1986. Final arguments were held on July 30, 1986 and post trial briefs were submitted by the parties. The following constitutes the court's finding of fact and conclusions of law in accordance with Federal Court Rule 41.

Suit was filed under the Federal Tort Claims Act 28 U.S.C. § 2671, et seq. The court has jurisdiction under 28 U.S.C. § 1346(b).

In a suit filed under the Federal Tort Claims Act, the United States is to be considered and judged as a private person subject to the law of the place where the accident occurred, which in this case is Michigan. The State of Michigan at the time of this accident had adopted what is known as the Michigan recreational use statute, M.C.L. § 300.201; M.S.A. § 13.1485. An important and initial question in this case is whether this statute is applicable to the Sleeping Bear Dunes National Lake Shore Park. The statute reads as follows:

"No causes of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, sightseeing, motorcycling, snowmobiling, or any other outdoor use, with or without permission, against the owners, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant or lessee." M.C.L.A. 300.201.

Plaintiff claims the recreational use act does not apply to federal owned properties such as Sleeping Bear Dunes Park. First he argues the statute is applicable only to licensees, not public invitees such as invited park visitors. Se...