Morgan v. U.S.

• Decision Date: 30 June 1983
• Docket Number: No. 82-3207,82-3207
• Parties: Renee MORGAN, as Personal Representative of the Estate of Gary F. Morgan, Deceased, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 580

709 F.2d 580

Renee MORGAN, as Personal Representative of the Estate of Gary F. Morgan, Deceased, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee.

No. 82-3207.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 7, 1983.

Decided June 30, 1983.

Carroll D. Gray, Asst. U.S. Atty., Mary J. Koehmstedt, Student Intern, Spokane, Wash., for defendant-appellee.

Chris A. Montgomery, McNally & Stewart, Colville, Wash., for plaintiff-appellant.

Appeal from the United States District Court for the Eastern District of Washington.

Before WALLACE, ANDERSON, and SCHROEDER, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

This wrongful death action arises from an accidental electrocution that occurred in the Grand Coulee Dam National Recreation Area in the State of Washington. Plaintiff's decedent, Gary Morgan, was canoeing with a companion and two dogs on Lake Roosevelt in the Recreation Area. Morgan beached the canoe to let the dogs run. After running along the beach a slight distance, one dog stepped into the lake and suddenly disappeared. When Morgan entered the lake to rescue the dog he was instantly overcome and rendered disabled. Morgan's companion cautiously entered the water and, upon feeling a tingling sensation, immediately withdrew and went for help. Divers recovered Morgan's body later that day at the lake's bottom. Subsequent investigation revealed that an electrically-driven irrigation pump located nearby had shorted and discharged electricity into the lake. The pump was owned and operated by a special use permittee, Vern Leach.

Plaintiff initiated suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2401(b), 2671-2680, against Leach and the government. Both defendants filed motions for summary judgment, contending Wash.Rev.Code Ann. Secs. 4.24.200-.210 (Supp.1983), the Washington Recreational Use Statute, absolved them of liability. ¹ Holding the government owed plaintiff's decedent no duty with respect to the irrigation pump whether or not the Washington statute applied, the district court granted the government's motion for summary judgment and denied Leach's. Having settled her case with Leach, plaintiff appeals from summary judgment in favor of the government.

I.

We do not find it necessary to decide whether summary judgment would be proper absent the Washington statute because we hold the statute does apply. Under the FTCA, the government is liable for negligence "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. Sec. 1346(b). Because the accident occurred in Washington, we apply Washington tort law. In Jones v. United States, 693 F.2d 1299, 1302-03 (9th Cir.1982), this court held the government a "recreational landowner" within the meaning of the Washington Recreational Use Statute.

Plaintiff's first argument that the Washington statute does not apply is based on 16 U.S.C. Sec. 457, which provides:

In the case of the death of any person by the neglect or wrongful act of another within a national park or other place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any State, such right of action shall exist as though the place were under the jurisdiction of the State within whose exterior boundaries such place may be; and in any action brought to recover on account of injury sustained in any such place the rights of the parties shall be governed by the laws of the State within the exterior boundaries which it may be.

Plaintiff argues for the interpretation of 16 U.S.C. Sec. 457 found in Quadrini v. Sikorsky Aircraft Division, 425 F.Supp. 81 (D.Conn.1977), where the court held that in suits arising under 16 U.S.C. Sec. 457, the governing law is that of the state within which the federal enclave is located as that state's law existed when the state ceded the property to the federal government. Because the property on which the Grand Coulee Dam National Recreation Area is located was acquired by the federal government in 1902 and 1935, before the Washington Recreational Use Statute was enacted, plaintiff contends the Washington statute cannot apply.

Plaintiff's argument lacks merit. Quadrini was not initiated under the FTCA because the government was not a defendant. Rather, Quadrini arose under 16 U.S.C. Sec. 457, which is merely a federal wrongful death statute, paralleling similar state statutes, designed to give a right of recovery for deaths occurring on property within the exclusive jurisdiction of the United States. The Quadrini court recognized its result would be different under the FTCA, 425 F.Supp. at 86, and indeed it would, because existing state law governs in FTCA cases notwithstanding the fact the alleged tortious conduct occurs on federal property within the state. See Jones v. United States, 693 F.2d 1299, 1301 (9th Cir.1982) ("Since the accident occurred on government land in Washington, Washington tort law is applicable."); Annot. 7 L.Ed.2d 994 Sec. 1[c] (1962). Because the instant case was filed under the FTCA, plaintiff's reliance on 16 U.S.C. Sec. 457 is misplaced. ²

Plaintiff also contends the Washington statute is inapplicable because the government contractually assumed a higher duty to recreational entrants than the statute requires. Plaintiff points to a 1946 agreement between the Bureau of Reclamation, Bureau of Indian Affairs, and National Park Service, in which the National Park Service agreed to "[e]stablish and maintain supervisory, informational, and protective services as may be necessary for the safe and full use of the Recreational Area for recreational purposes ...." Additionally, plaintiff cites language in Leach's special use permit that reserves to the government "the right to go upon said premises or upon any property of the permittee at any time in the performance of any duties ...." We do not interpret those provisions as imposing any higher duty than the government normally owes under state law. The 1946 agreement establishes a very general obligation on the government to provide a safe recreational area. That obligation creates no separate or independent duty, but merely is a recognition of the government's responsibility under state tort law. The permit language, moreover, creates simply a right to enter, not a duty to inspect equipment installed by the permittee. We conclude that the scope of the duty owed plaintiff's decedent derives solely from the Washington Recreational Use Statute.

II.

Under the Washington statute, landowners who open their property for recreational use are immune from liability except in three limited circumstances: (1) when a fee is charged; (2) when injuries are intentionally caused; (3) when injuries are sustained "by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted." Wash.Rev.Code Ann. Sec. 4.24.210 (Supp.1983). The parties agree both that Morgan paid no fee to canoe on Lake Roosevelt and that his death was not intentionally caused. What remains in dispute is the government's residual duty under the "known dangerous artificial latent condition" language.

The residual duty language is not a model of clarity. It appears somewhat inconsistent to describe a condition as "known" and "latent" in the same breath. Although the Washington courts have never construed the clause, we believe they would adopt the commonsense interpretation that "known" refers to the landowners' mental state, while "latent" refers to a condition not readily apparent to the recreational user. We believe, moreover, that the statute contemplates actual, not constructive, knowledge of the landowner. Had the Washington legislature intended to charge landowners with constructive knowledge it could have used more precise terminology such as "known or should have known." It did not, and the reason is apparent from the statute's purpose and history.

At common law, the recreational entrant in Washington would be characterized as a "public" invitee. McKinnon v. Washington Federal Savings and Loan Association, 68 Wash.2d 644, 414 P.2d 773 (1966). Washington landowners and occupiers owe invitees a duty of ordinary care to keep premises in a reasonably safe condition, which includes an affirmative duty to inspect the premises and discover dangerous conditions. Egede-Nissen v. Crystal Mountain, Inc., 93 Wash.2d 127, 606 P.2d 1214, 1218 (1980) (en banc). Thus, absent the Washington Recreational Use Statute, the landowner or occupier is liable for injuries caused by a dangerous condition of his land about which he knows or should know.

The Washington Recreational Use Statute was enacted against the background of the foregoing common law. The purpose of the statute is "to encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon ...." Wash.Rev.Code Ann. Sec. 4.24.200 (Supp.1983). See McCarver v. Manson Park & Recreation District, 92 Wash.2d 370, 597 P.2d 1362, 1364-65 (1979) (en banc); Ochampaugh v. City of Seattle, 91 Wash.2d 514, 588 P.2d 1351, 1356 (1979) (en banc). The statute effectuates that purpose by altering an entrant's...