Scanlon v. Dept of Army, 01-1817

• Decision Date: 06 December 2001
• Docket Number: No. 01-1817,01-1817
• Citation: 277 F.3d 598
• Parties: (1st Cir. 2002) MARIBETH SCANLON AND E. MICHAEL SCANLON, Plaintiffs, Appellants, v. DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, NEW ENGLAND DIVISION, Defendant, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 598

277 F.3d 598 (1st Cir. 2002)

MARIBETH SCANLON AND E. MICHAEL SCANLON, Plaintiffs, Appellants, v. DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, NEW ENGLAND DIVISION, Defendant, Appellee.

No. 01-1817

United States Court of Appeals For the First Circuit

Heard Dec. 6, 2001

Decided January 28, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Douglas P. Woodlock, U.S. District Judge

Lester M. Gold for appellant.

James B. Farmer, United States Attorney, with whom Cynthia W. Lie, Assistant United States Attorney, was on brief for appellee.

Before Selya, Circuit Judge, Rosenn^* and Cyr, Senior Circuit Judges.

ROSENN, Senior Circuit Judge.

The United States Army Corps of Engineers, New England Division (the Army), owns, operates, and maintains the Cape Cod Canal in Massachusetts. In addition to the maritime services at the Canal, the Army provides a recreational facility there known as the Sandwich Recreation Area within which is a parking lot.

In July 1997, Maribeth Scanlon, one of the appellants herein, visited the recreational area and parked her vehicle on a lot maintained by the Army. She alleged that, while attempting to place a baby walker into her parked vehicle, "she suffered injuries to her ankle and knee when she fell into a partially secured hole in the parking lot." She and her husband, E. Michael Scanlon, who pleaded a claim for loss of consortium, filed a tort action in the United States District Court for the District of Massachusetts under 28 U.S.C. § 1346(b)(1). The court granted the Army's motion for summary judgment and the plaintiffs timely appealed. We affirm.

Liability under the Federal Tort Claims Act is determined in accordance with the law of the place where the act or omission occurred. DiMella v. Gray Lines of Boston, Inc., 836 F.2d 718, 719-20 (1st Cir. 1988); 28 U.S.C. § 1346(b)(1). Under Massachusetts law, an owner of land who permits the public to use it for recreational purposes without imposing a fee or charge therefor is not liable to a member of the public, who uses the land for such purposes, for personal injuries sustained by him or her on the land "in the absence of wilful, wanton or reckless conduct by such [owner]." Mass. Gen. Laws, Ch. 12, § 17C. Because mere negligence on the part of the owner is not sufficient to establish liability; the plaintiffs must prove that the Army's conduct was wilful, wanton, or reckless.

It is undisputed that Maribeth Scanlon was using the Army land for recreational purposes without charge or fee. The plaintiffs claim that the Army installed a manhole in 1990 to protect a traffic counter, which was removed in 1996. Although the hole was not filed in, it was capped with a galvanized diamond plate steel cover designed to be secured with tamper-proof recessed bolts. From time to time, the bolts were replaced due to damage and, when necessary, the manhole was repaired. The plaintiffs claim that Mrs. Scanlon stepped on the cover and fell into the hole.

The District Court, after reviewing the record, concluded that there was insufficient evidence "to raise a genuine issue of material fact concerning whether defendant's maintenance of the [manhole] was wilful, wanton or reckless." It therefore granted the Army's motion for summary judgment.

Our review of a grant of summary judgment is de novo. Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995). Summary judgment is proper if after considering "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit, if any, . . . there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. at 36-37 (quoting Fed. R. Civ. P. 56(c)). In conducting that analysis, the court must "view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor." Id. at 36.

In Sandler v. Commonwealth, the Supreme Judicial Court of Massachusetts defined wilful, wanton or reckless conduct for purposes of the recreational use statute. 644 N.E.2d 641 (Mass. 1995)....