Miller v. US
| Decision Date | 19 June 1989 |
| Docket Number | No. CIV 87-1076 PHX RCB.,CIV 87-1076 PHX RCB. |
| Citation | 723 F. Supp. 1354 |
| Parties | Danny Wayne MILLER, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Arizona |
COPYRIGHT MATERIAL OMITTED
Raymond P. Lee, Hofmann, Salcito, Stevens & Myers, P.A., Phoenix, Ariz., for plaintiff.
Stephen M. McNamee, and Richard G. Patrick, Office of the U.S. Atty., Phoenix, Ariz., for defendant.
Defendant United States of America seeks summary judgment against plaintiff Miller on the ground that the court lacks subject matter jurisdiction to entertain this action. After a careful review of the various papers filed by the parties — including an amicus curiae brief filed by the Attorney General of the State of Arizona — and after conducting oral argument on the matter, the court now rules.
This is an action for personal injuries, pain and suffering, impaired earning capacity and property damages. Plaintiff Miller was injured on November 3, 1984, when the motorcycle he was operating crashed into an embankment because the road he was on suddenly disappeared. Pre-Trial Order ("PTO") § 1. The road, Old Highway 279, had at one time crossed a wash on top of a metal culvert. Unknown to plaintiff, the culvert had been removed and no warning signs were posted. Id. The sole defendant named in plaintiff's complaint (now superseded by the pre-trial order) is the United States of America. Plaintiff's complaint alleges that defendant, through its agents and employees, is responsible in tort for plaintiff's injuries allegedly caused by defendants "careless, reckless and negligent conduct in the design, construction, operation, maintenance and safety of the roadway." Plaintiff's Complaint ¶ 4.
Old Highway 279 is located within the Prescott National Forest, which is under the jurisdiction of the United States Department of Agriculture. PTO § 3, ¶ 2. In fact, back in September of 1964, the State of Arizona abandoned its roadway interests in Old Highway 279. Defendant's SOF ¶ 7. Further, in June of 1985, after plaintiff's accident, Yavapai County also abandoned its interest in Old Highway 279 to the Forest Service and the Department of Agriculture. Defendant's SOF ¶ 8. At the time of the accident, however, the United States, through the Department of Agriculture and the Forest Service, was the owner of the land under and surrounding the road easement to Yavapai County. Defendant's Reply, Supplemental Declaration of Donald E. Olson, ¶ 1. The area where the accident occurred was patrolled by agents and employees of the United States Forest Service, which exercised possession, dominion, control, observation and inspection of the National Forest Service sign reading "please close the gate". This sign was posted on the gate at the point of ingress to the National Forest leading to the road where plaintiff's accident occurred. PTO § 3, ¶ 7.
Plaintiff Miller, along with various members of his family, went to the Prescott National Forest for the purpose of operating off-road motor vehicles for recreational purposes. PTO § 4, ¶ 1; Defendant's SOF ¶ 1. They entered the Prescott National Forest by turning off the present State Highway 279 and driving onto the National Forest Lands through the unlocked gate. Defendant's SOF ¶ 4. Finally, it is undisputed that plaintiff and his family did not pay any admission fee to enter the Prescott National Forest. Defendant's SOF ¶ 5.
Before the court decides the merits of the present motion, it notes that it was not until after the parties' joint-filing of the pre-trial order that defendant sought leave to file the instant motion. Leave was granted not because the motion was timely — it clearly was not under the court's previous orders — but precisely because it raised the issue of the court's subject matter jurisdiction to decide this dispute. If any doubt exists as to the validity of the court's subject matter jurisdiction, the court must resolve the dispute either sua sponte or upon motion of the parties. In other words, timely or not, defendant cannot waive objections as to the court's subject matter jurisdiction. Therefore, the court will consider plaintiff's supplemental statement of facts, and deny defendant's motion to strike. The court will also consider as well the supplemental affidavit of Donald E. Olson, filed by defendant. Additionally, the court will grant plaintiff's motion to amend the parties' pre-trial order.
Defendant contends that the court lacks subject matter jurisdiction over this dispute because defendant has not waived its sovereign immunity under the Federal Torts Claim Act, 28 U.S.C. §§ 1346(b), 2671. Defendant points out that since the federal statute is merely a procedural device allowing plaintiff to bring suit against defendant, plaintiff must first state a cause of action against defendant which exists under Arizona law. It is uncontested by the parties that in order to recover against defendant based upon an action sounding in tort, plaintiff must establish the four traditional elements to a negligence cause of action: (1) a legal duty on the part of defendant to conform to a standard of conduct established by Arizona law for the protection of plaintiff; (2) breach of that duty; (3) legal or proximate cause; and (4) legally compensable harm. See Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987). Defendant argues in the present motion that it owed no duty to plaintiff under Arizona law, and therefore defendant has not waived its immunity under the Federal Torts Claim Act.
Thus, the court must grant defendant's motion for summary judgment unless plaintiff can demonstrate that a genuine issue of material fact exists as to the alleged duty of care defendant owed to plaintiff. Defendant's argument centers around Arizona's Recreational User Statute, A.R.S. § 33-1551. Defendant contends that the statute makes it clear that defendant owed no duty to plaintiff at the time of the accident, since "an owner, lessee or occupant of premises does not ... owe any duty to a recreational user to keep the premises safe for such use." A.R.S. § 33-1551.A.1. (West Supp.1987). The term premises includes "forest lands, and any other similar lands which by agreement are made available to a recreational user." A.R.S. § 33-1551.B.1. (West Supp. 1987). Recreational user is defined as a "person to whom permission has been granted or implied without the payment of an admission fee or other consideration to enter upon premises to hunt, fish, trap, camp, hike, ride, swim, or engage in similar recreational pursuits." A.R.S. § 33-1551.B.2. (West Supp.1987).
Thus, applying the above statute to the factual record before the court, defendant contends that no genuine issue of material fact exists as to the following conclusions of law: (1) defendant was the owner of the land underlying Old Highway 279 at the time of the accident; (2) plaintiff was a recreational user of the land in question who paid no admission fee; and (3) pursuant to Arizona statute, defendant therefore owed no duty of care to plaintiff. The court concurs with defendant's position that the above three conclusions offer no legitimate issue for the trier of fact.
However, the court's analysis does not end here as plaintiff offers two reasons why summary judgment in defendant's favor is nonetheless not appropriate. Plaintiff contends that: (1) the Recreational User Act violates the Arizona constitution and is therefore inapplicable; and (2) even if the constitutionality of the state statute is upheld, defendant's alleged failure to repair or warn of the dangerous condition is "wilful or malicious" and thus an exception to the Recreational User Statute. See A.R.S. 33-1551.C. (West Supp.1987). The court will address separately these two remaining issues.
Upon receiving plaintiff's response to the underlying motion, in which plaintiff raised the issue of the constitutionality of the Arizona statute, the court certified this issue to the Arizona Attorney General's office. The state subsequently filed an amicus curiae brief on this issue, as well as a reply memorandum following plaintiff's response to the amicus brief. The court notes there is a strong presumption supporting the constitutionality of a legislative enactment and the party asserting its unconstitutionality bears the burden of overcoming the presumption. See Eastin v. Broomfield, 116 Ariz. 576, 580, 570 P.2d 744, 748 (1977). Specifically, plaintiff must show that the statute violates Article 18, Section 6 of the Arizona constitution, which provides that "the right to recover damages for injuries shall never be abrogated," and Article 2, Section 31, which provides that "no law shall be enacted in this State limiting the amount of damages to be recovered for causing the death and injury of any person." In this regard, plaintiff contends that the Recreational User Act "abrogates" the common law causes of action for failure to maintain the land in a reasonably safe condition and failure to guard or warn of an unsafe condition.
The Attorney General contends that plaintiff must show that his present cause of action was in existence at the time of the enactment of the above constitutional protections. The court concurs with this position. The Arizona Supreme Court held in Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 18, 730 P.2d 186, 195 (1986), that article 18, section 6 protects actions for negligence recognized at common law at the time of the article's adoption. Furthermore, the Supreme Court held recently that the tort of strict liability is not similarly protected because this substantive cause of action did not exist at the time the constitutional provision was adopted. See Bryant v. Continental Conveyor Equipment Co., 156 Ariz. 193, 195, 751 P.2d 509, 511 (1988). The court is bound...
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