Smith v. U.S.

• Decision Date: 27 December 1976
• Docket Number: No. 75-1115,75-1115
• Citation: 546 F.2d 872
• Parties: Cameron SMITH by his next friend, E. J. Smith, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 872

546 F.2d 872

Cameron SMITH by his next friend, E. J. Smith, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 75-1115.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Nov. 10, 1975.

Decided Dec. 27, 1976.

W. Perry Dray, Cheyenne, Wyo. (Hirst, Applegate & Dray, P. C., Cheyenne, Wyo., on the brief), for plaintiff-appellant.

Edwin E. Huddleson, III, Atty., Dept. of Justice, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., Washington, D. C., Clarence A. Brimmer, U. S. Atty., Stephen F. Eilperin, Atty., Dept. of Justice, Washington, D. C., on the brief), for defendant-appellee.

Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

This action under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., concerns a tragic accident in Yellowstone National Park. Plaintiff sought damages for personal injuries received when he fell into a super-heated thermal pool in the Park. The district court entered judgment for the United States, 383 F.Supp. 1076, and this appeal followed. On the appeal we must consider whether the record as a whole gives substantial support to the trial court's findings. So viewed, there was proof tending to show these facts:

Plaintiff Cameron Smith was fourteen years old when he and his family entered the Park through the north entrance at Gardiner, Montana, on August 26, 1970. His father paid a vehicular admission fee at the entrance and received from the ranger on duty two small informational brochures. One brochure advised visitors to the park of the possibly dangerous propensities of bears. The second brochure contained a map of the park features on one side and general information on the other, including a warning set forth in blue italicized type, stating:

Thin crusts overlie and conceal pools of boiling water. Each year many careless visitors are burned. For your safety, stay on the designated trails or boardwalks at all times watch your children carefully. Keep pets under physical restraint. (I R. 110). ¹

As the Smiths proceeded into the park, the warnings with respect to the bears were read to the family; however, neither plaintiff nor any other member of the family read the warning about the thermal areas.

The Smiths proceeded southward into the park to Mammoth Hot Springs, a "developed" ² area where boardwalks and paths were constructed and maintained for visitors by the Park Service. There were signs posted advising visitors to stay on the boardwalks and paths. These signs were pointed out to the Smiths by another park visitor when some members of the family strayed from the boardwalks and trails. Mr. Smith then admonished his children to be careful and to stay on the boardwalks and paths.

Near the parking lot at Mammoth, the Smiths also stopped and discussed a hole at the lower end of the boardwalk which was fenced off and accompanied by a warning sign. The Smiths concluded that this hole might once have been a thermal feature and Mr. Smith pointed out to his children that such areas are dangerous and that the ground could cave way. (II R. 179-81; 383 F.Supp. at 1079).

Leaving the Mammoth area, the Smiths proceeded further south into the park, stopping briefly at Obsidian Cliff. Then, traveling south again, they noticed steam coming from the ground in a meadow-like area to the right of the road. They pulled into a paved turnout or parking area nearby, where at least two other vehicles were parked, and stopped to investigate.

The thermal area where the Smiths had stopped was Clear Water Springs, Wyoming, an "undeveloped" natural area within Yellowstone National Park where no foot paths, boardwalks or trails were constructed or maintained for park visitors and no warning signs were posted. However, as noted, there was a paved parking area, and from plaintiff's exhibit 16, this area appears to have been large enough to accommodate about five or six cars. There was also a worn path leading from the turnout to the meadow. The Smiths started down this path through a grove of pine trees toward the area of thermal activity. Mr. Smith again warned the children in the family about the possible danger. (IV R. 403, 405).

The steam rising from the thermal features in Clear Water Springs and the boiling water in the large thermal pools in the meadow were clearly visible to the Smiths. (II R. 104, 116, 127, 182; III R. 216, 227, 250, 275-76). They had to step over bubbling pots some six to twelve inches wide in the middle of the path. (II R. 129, 187).

Plaintiff and his brother Fraser preceded the rest of the family into the thermal area and crossed a small stream known as Obsidian Creek. Plaintiff then walked to the opposite side of a thermal pool where he got down on his hands and knees and looked at the bubbling water in the pool. He then stood up by the edge of the pool. Unfortunately, the ground adjacent to the pool gave way under his weight and he fell into the pool and was severely burned. ³

Plaintiff submitted a timely administrative claim which was denied. He then filed this suit under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., alleging generally that the Park Service acted negligently in failing to: (1) give adequate warnings about the dangers of thermal pools; (2) erect guardrails and boardwalks in thermal areas; and (3) conduct inspections to discover, and then warn about or otherwise make safe, the dangerous conditions at Clear Water Springs. (I R. 3).

Essentially the trial judge found that:

(1) Under the law of Wyoming, applicable in the action by virtue of 28 U.S.C.A. § 1346(b), there was no negligence on the part of the United States because:

(a) the Park service owed no duty to plaintiff since (i) Wyoming law limited the liability of owners of land used for recreational purposes to intentional torts and to situations where the landowner had charged a fee for entering the land, and (ii) plaintiff was not charged an entrance fee (383 F.Supp. at 1080-81);

(b) even if plaintiff were an invitee to whom the United States owed a duty to keep the premises reasonably safe and to warn of hidden dangers, he "lost his status as an invitee when he proceeded from the paved parking area down the trail beyond any sort of a path . . . to reach the pool where he sustained his injuries . . ." (383 F.Supp. at 1081);

(c) the Clear Water Springs area was one of obvious danger and the United States owed no duty to warn visitors of "defects or dangers which are known to them, or which are obvious to them, or which in the exercise of ordinary care should be observed by such visitors." (383 F.Supp. at 1081);

(d) on the facts of the case, there were no acts of negligence by the United States (383 F.Supp. at 1081);

(2) Plaintiff's claims were barred by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C.A. § 2680(a) (383 F.Supp. at 1081); and

(3) Plaintiff was contributorily negligent (383 F.Supp. at 1081-82).

This appeal challenges all of these findings and conclusions. Though we find that the court incorrectly concluded that this action was barred by the discretionary function exception, we are convinced we must affirm because we cannot say that the findings on contributory negligence are clearly erroneous.

I

The Discretionary Function Exception of 28 U.S.C.A. § 2680(a)

We find it necessary to deal first with plaintiff's argument that this action is not barred by the discretionary function exception contained in 28 U.S.C.A. § 2680(a) ⁴ because the trial court's adverse ruling on this point, if correct, would constitute a jurisdictional bar to the maintenance of this action. Morris v. United States, 521 F.2d 872, 874 (9th Cir.); Griffin v. United States, 500 F.2d 1059, 1063 (3d Cir.); Gibson v. United States, 457 F.2d 1391, 1392 n. 1 (3d Cir.); see also Dalehite v. United States, 346 U.S. 15, 24, 73 S.Ct. 956, 97 L.Ed. 1427.

" The Federal Tort Claims Act waives the Government's immunity from suit in sweeping language." United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95 L.Ed. 523. However, the waiver in 28 U.S.C.A. § 1346(b) is limited by the several exceptions contained in 28 U.S.C.A. § 2680. If one of these exceptions is applicable, "(t)he provisions of this chapter and section 1346(b) of this title shall not apply . . ." 28 U.S.C.A. § 2680. In such case a district court must dismiss for lack of subject matter jurisdiction. Morris v. United States, supra, 521 F.2d at 875.

To analyze the discretionary exception ruling by the trial judge here it is helpful to divide the reasoning in his conclusion of law into two parts:

11. (1) Pursuant to the provisions of Title 28, United States Code, Section 2680, the employees of the United States were exercising due care in the execution of a statute or regulation, and they were engaged in the performance of discretionary functions on the part of the National Park Service of the Department of the Interior at the time the decisions were made with respect to the development of thermal areas within Yellowstone National Park, and at the time the decisions were made to exclude areas like the one in which the plaintiff was injured from the development programs, and (2) under the law no liability attaches to those things involved in that discretion including the failure to erect boardwalks, barricades, guardrails, fences or signs. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Ashley v. United States, 215 F.Supp. 39 (D.Neb.1963) (Emphasis added).

Plaintiff does not appear to attack the first part of the conclusion holding that the decisions to leave some areas of the park undeveloped was a discretionary function of the Park Service. His brief states that he " . . . is not challenging Defendant's policy decision to leave the Clear Water Springs area in an undeveloped state," and points instead to proof of negligence in inspecting for dangerous...