Proud v. U.S.

• Decision Date: 26 April 1983
• Docket Number: No. 82-4692,82-4692
• Citation: 704 F.2d 1099
• Parties: John PROUD, Individually and as Next Friend of Heather Proud, a Minor, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1099

704 F.2d 1099

John PROUD, Individually and as Next Friend of Heather Proud, a Minor, Plaintiffs-Appellants, v.UNITED STATES of America, Defendant-Appellee.

No. 82-4692.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 15, 1983.

Decided April 26, 1983.

David C. Schutter, Richard A. Marshall, Honolulu, Hawaii, for plaintiffs-appellants.

Michael Schatzow, Mark J. Bennett, Honolulu, Hawaii, for defendant-appellee.

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

Before BROWNING, WRIGHT and WALLACE, Circuit Judges.

PER CURIAM:

This is a negligence action against the United States for injuries the minor plaintiff sustained diving into a natural pool in Haleakala National Park.The district court dismissed the complaint with leave to amend within 60 days, reasoning that Hawaii's recreational land use law precluded relief for simple negligence.SeeHawaii Rev.Stat. Secs. 520-2(1), -3.

The appealed order, which dismissed the complaint but not the action, is not final and appealable unless special circumstances demonstrate that the trial court found plaintiffs could not save the action by any amendment of the complaint they could reasonably be expected to make.California v. Harvier, 700 F.2d 1217, at 1218(9th Cir.1983).

Here, plaintiffs argued below that they could state a claim for willful or malicious failure to guard or warn.SeeHawaii Rev.Stat. Sec. 520-5(1).They could have saved their action by amending the complaint to make this claim explicit.It is immaterial...