Neal v. Bently Nevada Corp.

• Decision Date: 12 July 1991
• Docket Number: No. CV-N-89-779-ECR.,CV-N-89-779-ECR.
• Citation: 771 F. Supp. 1068
• Parties: Treg NEAL, Plaintiff, v. BENTLY NEVADA CORPORATION, Defendant.
• Court: U.S. District Court — District of Nevada

771 F. Supp. 1068

Treg NEAL, Plaintiff, v. BENTLY NEVADA CORPORATION, Defendant.

No. CV-N-89-779-ECR.

United States District Court, D. Nevada.

July 12, 1991.

COPYRIGHT MATERIAL OMITTED

Charles M. Kilpatrick, Carson City, Nev. and Federico C. Sayre, Los Angeles, Cal., for plaintiff.

Douglas A. Sloane, Reno, Nev., for defendant.

ORDER

EDWARD C. REED, Jr., Chief Judge.

On December 4, 1989, plaintiff Treg Neal (Neal) (Plaintiff) filed a diversity action (document # 1) in this Court alleging that on or about August 1, 1987, he and other members of the public used property, owned by defendant Bently Nevada Corporation (Bently) (Defendant), for recreational use. Neal swung from a rubber hose tied to a tree and dove into a shallow part of the Carson River. He landed on his head and sustained "serious and permanently disabling injuries."

Neal claimed that Bently negligently, consciously and recklessly controlled its premises, allowing the rope to be tied to a tree next to the river. Neal further claimed that Bently's actions "constitute a willful and malicious failure to guard or warn against a known dangerous condition, use and activity."

Bently claimed no liability for plaintiff's injuries in an amended answer on December 20, 1989 (document # 3). Defendant alleged as an affirmative defense Nevada Revised Statute § 41.510 — Nevada's recreational use statute.

On September 14, 1990, Bently filed a motion for summary judgment (document # 18). Neal filed an opposition to defendant's motion for summary judgment (document # 19) on September 26, 1990. Defendant filed a reply in support of its motion for summary judgment (document # 20) on October 11, 1990. Plaintiff filed a supplemental opposition to defendant's motion for summary judgment (document # 32) on May 16, 1991. Defendant filed a response to plaintiff's supplemental opposition (document # 33) on May 22, 1991. Plaintiff filed a reply supplemental opposition to defendant's motion for summary judgment (document # 34) on May 29, 1991. Defendant filed a response to plaintiff's reply supplemental opposition to defendant's motion for summary judgment (document # 35) on May 31, 1991.

Plaintiff filed an amended complaint on January 30, 1991 (document # 28), which changed the amount in controversy from "exceeding $10,000" to "exceeding $50,000." The amended complaint does not affect this motion for summary judgment.

The uncontroverted facts are as follows. Neal was seventeen years old on the date of the accident, August 1, 1987. He was visiting, from his residence in Southern California, his older brother in Carson City, Nevada. Neal went to the Carson River that day with his brother (David) and his brother's friend (Shawn). David and Shawn had made numerous rope swing dives that day before Neal's accident, which occurred on Neal's third swing. The water was about ten feet deep.

When Neal used defendant's property on the day of the accident he did not know who owned the land on which the tree-rope swing was situated. Nor had he obtained permission to enter upon the land or paid consideration to use the land or the rope swing.

Bently's principal place of business is in Douglas County, Nevada. Bently owns approximately 12,000 acres of primarily undeveloped property in western Nevada. Defendant has owned since 1978, the 520 acre parcel of property in Carson City, Nevada, on which the tree-rope swing was located. The tree is directly next to the Carson River, which runs through defendant's property. Bently has never used this parcel for any purpose. The area had been used as a rope swing site since 1957. It is commonly known within Carson City that people have used the Carson River for recreational purposes over the past 45 years.

There is no corporate policy to monitor activity on Bently's undeveloped property or to restrict public access to the property that housed the rope swing. Bently took no steps to guard or warn the public against using the property as a rope swing site. Bently's CEO recognizes that rope swinging by teenagers into shallow water is a dangerous activity.

Defendant has never received any complaints regarding this parcel. The sheriff and watch commander who responded to the accident had no knowledge of any previous accidents on the Carson River stemming from a tree-rope swing.

Access to the accident site is only by two narrow bumpy dirt roads. From the south access is via a dirt road off Highway 50, approximately 3 miles, taking ten minutes. From the north, access is via a dirt road off Highway 50, approximately 4½ miles, for twenty minutes.

No evidence exists that any Bently officer visited the property prior to the accident or was aware of any use of the property, of a rope swing or of any previous accidents. Bently's Construction Manager visited the northern end of the property, not the southern end where the accident occurred, in the spring of 1984 concerning a mineral survey. He was the only Bently employee to visit the property for business purposes as of the accident date.

Bently's President, however, has visited the area twice for recreational purposes. He has not seen a rope swing. He does not know whether, during those visits, he was on the Bently property or near the rope swing site. Bently's President does not know if any effort has been made to determine whether any Bently officers or employees knew of a tree with a rope swing on the Carson River. Nor has Bently's CEO made any effort to determine whether any Bently officers or employees had any prior knowledge of recreational use of the Carson River in Carson City. He has, however, heard stories of a raft race on the Carson River.

Summary judgment is granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the most important goals of summary judgment is to avoid wasting resources and time where a trial would be a mere formality. Zweig v. Hearst Corp., 521 F.2d 1129, 1135-36 (9th Cir.1975), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975).

The party seeking summary judgment bears the responsibility of demonstrating to the court the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The opposing party must set forth in affidavits or other material specific facts showing that there is a genuine issue of material fact. Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir.1978) (construing Fed.R.Civ.P. 56(e)), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979).

For summary judgment purposes, material facts are those that could affect the outcome of the suit under the applicable substantive law. An issue is genuine if the evidence could support a finding by a reasonable jury in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986).

The inferences to be drawn from the facts set forth in the motion for summary judgment and related materials must be viewed in the light most favorable to the opposing party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

Depositions or affidavits supporting or opposing the motion for summary judgment must be made on personal knowledge. The facts contained therein must be admissible in evidence. The depositions or affidavits must show that the deponent or affiant is competent to testify to those facts at trial. Fed.R.Civ.P. 56(e).

The Court must apply Nevada law since in a diversity action, such as this, the court must apply the law of the state in which the federal court sits.

The premises and activity in this case come within Nevada's recreational use statute. Recreational use statutes generally apply to premises in rural, semi-rural or non-residential areas and to injuries incurred by an activity enumerated in the statute that can be pursued in the "true outdoors." 62 Am.Jur.2d Premises Liability § 124 (1990).

The location of the site is rural — next to the Carson River; access is by dirt road, ten to twenty minutes off the main highway. Rope swinging from a tree into the river can only be pursued in the "true outdoors" and is covered under "any other recreational purposes."

Nevada's recreational use statute provides:

1. An owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others for crossing over to public land, hunting, fishing, trapping, camping, hiking, sightseeing, or for any other recreational purposes, or to give warning of any hazardous condition, activity or use of any structure on the premises to persons entering for those purposes, except as provided in subsection 3.

2. ...

3. This section does not limit the liability which would otherwise exist for: (a) Willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity....

4. ...

Nev.Rev.Stat.Ann. § 41.510 (Michie 1986).

The purpose of recreational use statutes is "to encourage owners of land within rural areas to make land and water areas available for recreational purposes by limiting their liability towards persons entering thereon for such purposes." Ducey v. United States, 523 F.Supp. 225, 229-230 (D.Nev.1981) (quoting Colo.Rev.Stat., Title 33, Art. 41, § 101).

Unless willful or malicious failure to guard or warn against the dangerous condition can be shown, a landowner does not owe a duty even to inspect its rural, semirural or non-residential property to persons who may enter thereon for the recreational purposes within the statute.

We must determine whether a genuine issue of material fact exists regarding Bently's control of its premises. We must ascertain whether Bently willfully and maliciously failed to guard or warn against a known dangerous...