O'Neal v. U.S.

Decision Date16 April 1987
Docket NumberNo. 85-4200,85-4200
Citation814 F.2d 1285
PartiesRodger L. O'NEAL, Theresa O'Neal, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Michael Henderson, Grants Pass, Or., and Edward I. Engel, Portland, Or., for plaintiffs-appellants.

James L. Sutherland, Eugene, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN and THOMPSON, Circuit Judges, and INGRAM, * District Judge.


Roger and Theresa O'Neal, together with their insurance carrier, Insurance Company of North America, appeal from summary judgment awarded against them upon their separate but consolidated actions brought under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., and alleging negligence on the part of the United States Department of the Interior, Bureau of Land Management, in the construction, maintenance and management of a logging road located upon Bureau of Land Management Lands in Oregon. We affirm.

Plaintiffs O'Neal sustained personal injuries and property damage when the road in question upon which they were driving while on a bear hunting expedition allegedly gave way and collapsed, causing their vehicle and themselves to fall off the road and into an adjacent creek bed, with the resultant injuries of which they complain.

The district court granted summary judgment in favor of the defendant United States of America, relying upon the Oregon Recreational Use Statute, ORS 105.655-105.680, finding that the statute exempts the defendant land owner from liability for injuries suffered by plaintiffs while engaged in a recreational use for which they paid no fee or charge upon the land of defendant, there being no contention of reckless conduct on the part of defendant.

The O'Neals raise these contentions upon appeal:

1) The Oregon recreational use statute was not intended to and does not apply to lands owned by governmental entities, but only to lands in private hands.

2) The Oregon Recreational Use Statute is preempted by the revestiture Statute providing for the revesting in the United States of lands previously granted to the Oregon and California Railroad, 43 U.S.C. Sec. 1181, which specifies that the lands revested shall be used for specified purposes including recreation.

3) Congressional policy providing for the compensation of victims of government negligence precludes application of the Oregon Recreational Use Statute.

4) Although the O'Neals paid no fee or charge for their recreational use of defendant's land a fee was in effect paid by receipts derived from timber sales, and having accepted those receipts the defendant is bound to conduct its premises so offered for recreational use and for a consideration in a safe and prudent manner or be liable for its failure to do so.

We review de novo.

The specified contentions, except the last, are answered in the defendant's favor by the terms of the Federal Tort Claims Act itself.

"The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."

28 U.S.C. Sec. 2674.

The applicability of state recreational use statutes to federally owned lands is well established in this circuit. Proud v. United States, 723 F.2d 705 (9th Cir.) cert. denied 467 U.S. 1252 (1984); Jones v. United States, 693 F.2d 1299 (9th Cir.1982); Simpson v. United States, 652 F.2d 831 (9th Cir.1981), and is not altered by the intent of the state in the adoption of its statute. Proud, supra. It is therefore clear that the maximum liability which defendant can incur is precisely...

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  • Mattice By and Through Mattice v. U.S., Dept. of Interior
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 10, 1991
    ...applied it to a Forest Service road in the El Dorado National Forest, Hubbard, 266 Cal.Rptr. at 492. See also O'Neal v. United States, 814 F.2d 1285 (9th Cir.1987) (applying Oregon recreational use statute to a logging road on Bureau of Land Management land). The rule is no different here b......
  • Cox v. US
    • United States
    • U.S. District Court — Northern District of West Virginia
    • December 4, 1992
    ...that the United States benefits from any limitations of liability afforded under states' recreational use statutes. O'Neal v. United States, 814 F.2d 1285 (9th Cir.1987); Ewell v. United States, 776 F.2d 246 (10th Cir.1985); Proud v. United States, 723 F.2d 705 (9th Cir.1984). Although this......
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    • April 23, 1991
    ...was shielded from liability by a recreational use statute. See Cox v. United States, 881 F.2d 893 (10th Cir.1989); O'Neal v. United States, 814 F.2d 1285 (9th Cir.1987); Collard v. United States, 691 F.Supp. 256 (D.Haw.1988). The court notes that the issue of any potential respondeat superi......
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