Umpleby By and Through Umpleby v. U.S., By and Through Dept. of Army

• Citation: 806 F.2d 812
• Decision Date: 05 December 1986
• Docket Number: No. 86-5099,86-5099
• Parties: Wesley J. UMPLEBY, By and Through his co-conservators, Charles UMPLEBY and Geneva Umpleby, Appellant, v. UNITED STATES of America, acting By and Through the DEPARTMENT OF the ARMY, U.S. Army Corps of Engineers, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 812

806 F.2d 812

Wesley J. UMPLEBY, By and Through his co-conservators Charles UMPLEBY and Geneva Umpleby, Appellant, v. UNITED STATES of America, acting By and Through the DEPARTMENT OF the ARMY, U.S. Army Corps of Engineers, Appellee.

No. 86-5099.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 14, 1986.

Decided Dec. 5, 1986.

Joseph A. Vogel, Jr., Mandan, N.D., for appellant.

Lynn Crooks, Asst. U.S. Atty., Fargo, N.D., for appellee.

Before FAGG, BOWMAN and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge.

Appellant Wesley J. Umpleby ("Umpleby") appeals from a judgment entered December 20, 1985 in the District of North Dakota, Bruce M. Van Sickle, District Judge, which granted summary judgment in favor of appellee, United States of America, acting by the United States Army Corps of Engineers ("the Corps") in an action pursuant to the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. (1982) ("FTCA"). The court held that the North Dakota Recreational Use Statute, made applicable to this case through the FTCA, barred the action. The Recreational Use Statute limits the liability of a landowner who makes his or her land available to the general public for recreational use. N.D.Cent.Code Sec. 53-08-02 et seq. (1982). The court reasoned that when Umpleby was injured, on land belonging to the Corps, he was there for recreational purposes; and therefore the provisions of the Recreational Use Statute came into play, thus shielding the Corps from liability as a matter of law.

On appeal Umpleby argues: first, that there is a genuine issue of material fact as to whether the conduct of the Corps was willful or malicious, such conduct, if willful or malicious, stripping the protections of the Recreational Use Statute; second, that there is a genuine issue of material fact as to whether Umpleby was on the land for recreational purposes within the meaning of the Recreational Use Statute; third, that the Corps waived the protections of the statute by entering into written agreements to assume management of the recreational area; and fourth, that the Recreational Use Statute is unconstitutional under the equal protection clause of the Fourteenth Amendment of the United States Constitution. ¹

We hold that whether the conduct of the Corps was willful or malicious presents a genuine issue of material fact, precluding summary judgment; that the court correctly held that Umpleby was on the land for recreational purposes within the meaning of the Recreational Use Statute; and that the court correctly held that the Corps did not affirmatively waive the protections, if any, of the Recreational Use Statute. We express no opinion as to the constitutionality of the Recreational Use Statute under the United States Constitution. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-348 (1936) (Brandeis, J., concurring).

We reverse the judgment and remand the case to the district court for trial of the issue as to whether the conduct of the Corps was willful or malicious. We affirm in the other respects stated above.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

On April 16, 1981 Wesley Umpleby was involved in a one-vehicle accident on an unnamed road leading from North Dakota Highway 1806 to a game management and recreation area known as "Schmidt Bottoms" or "Little Heart Bottoms", adjacent to the Oahe Reservoir in Morton County, North Dakota. The road is owned by the Corps and leased to the North Dakota Department of Game and Fish. Umpleby, who was sixteen years old at the time, was rendered a quadriplegic by the accident.

Prior to 1969 an unimproved trail was used by hunters and fishermen for access to the Reservoir. In 1969 the Corps and the Department of Game and Fish decided to improve the trail. The Corps, the Department of Game and Fish and Morton County each contributed approximately one-third of the construction costs for the completion of the improved road. The configuration of the road followed the natural contours of the preexisting trail. In 1970 another half mile section of the trail was improved. Periodic blading of the road was done by Morton County in 1977 at the request of the Department of Game and Fish. In 1978 and 1979 the road was regraveled by a private construction company under contract with the Corps. There were no structural changes made in the road during this repair work. In March 1979 the Department of Game and Fish proposed the construction of an additional .64 miles of access road to be built and graveled by the department. The Corps required that the plans and specifications be submitted to it for approval, along with a cultural resources survey, before construction began. The plans and specifications regarding the location of the road were drafted in the office of a Corps employee. An inspection by personnel of the engineering division of the Corps took place prior to commencement of the construction. The plans and specifications then were approved by the Corps. Construction was completed during the summer of 1980. The new road intersected the existing road at the 90? curve where the instant accident occurred.

Umpleby initially sued the State of North Dakota and Morton County in the North Dakota District Court (a state court). The State was dismissed by stipulation. Morton County prevailed on a motion for summary judgment, the trial court holding that the county had no legal duty to construct and maintain the road. That judgment was affirmed by the North Dakota Supreme Court. Umpleby v. The State of North Dakota, 347 N.W.2d 156 (N.D.1984).

Umpleby then commenced the instant action predicated on the FTCA. He seeks to hold the Corps liable on the theory that the road was improperly designed, constructed and maintained. He alleges that when the new road, constructed in 1980, intersected the existing road at the 90? curve, an abrupt loss of superelevation (banking) occurred on the curve. Umpleby further alleges that, although the road has a curve of 90? at the point of the accident, no warning signs of any kind were posted. It is Umpleby's contention that the evidence he presented to the district court in opposition to the Corps' motion for summary judgment raised a genuine issue of material fact as to the willfulness or maliciousness of the Corps in failing to guard or warn against a dangerous condition, thereby precluding summary judgment. We agree.

For the reasons stated below, we reverse the judgment of the district court granting the Corps' motion for summary judgment and we remand the case to the district court for trial of the issue as to whether the Corps' conduct constituted a willful or malicious failure to guard or warn of a dangerous condition. Although we agree with the district court that Umpleby was on the Corps' land for recreational purposes and that the Corps did not waive the protections, if any, of the Recreational Use Statute, we hold that summary judgment was improper.

II.

(A) Standard of Review

The standard that an appellate court applies in reviewing an order which grants summary judgment is the same as that which governs the trial court's initial action under Fed.R.Civ.P. 56(c)--summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. All facts must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences to be drawn from the facts. Portis v. Folk Construction Co., Inc., 694 F.2d 520, 522 (8th Cir.1982). We have emphasized repeatedly the drastic nature of the summary judgment remedy and have held that it should not be granted unless the moving party has established the right to summary judgment "with such clarity as to leave no room for controversy." Jewson v. Mayo Clinic, 691 F.2d 405, 408 (8th Cir.1982). Further, "[s]ince tort actions generally encompass a multitude of factual issues and abstract concepts that become elusive when applied to varying concrete factual situations, such actions are usually not appropriate for disposition by summary judgment." Hughes v. American Jawa, Ltd., 529 F.2d 21, 23 (8th Cir.1976).

(B) Governing Law

Under the FTCA the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. Sec. 2674. "[T]he test established by the Tort Claims Act for determining the United States' liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred." Rayonier v. United States, 352 U.S. 315, 319 (1957). Applying this test, the liability of the Corps is limited by the North Dakota Recreational Use Statute to the same extent as the liability of a private citizen.

The Recreational Use Statute limits a landowners' liability as follows:

"[A]n owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes."

N.D.Cent.Code Sec. 53-08-02.

This limitation on liability does not apply, however, if the conduct of the landowner consists of a "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or...