Weaver v. US

• Decision Date: 18 December 1992
• Docket Number: Civ. A. 90-72973.
• Citation: 809 F. Supp. 527
• Parties: Lawrence M. WEAVER, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Michigan

809 F. Supp. 527

Lawrence M. WEAVER, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. 90-72973.

United States District Court, E.D. Michigan, S.D.

December 18, 1992.

Jeffrey Cohen, Detroit, MI, for plaintiff.

Elizabeth J. Larin, Asst. U.S. Atty., Detroit, MI, for defendant.

MEMORANDUM AND ORDER

COHN, District Judge.

I.

This is a personal injury action brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. Plaintiff, Lawrence Weaver (Weaver), was severely injured in a diving accident while swimming in the Pine River where it is crossed by Low Bridge Road in the Manistee National Forest in Manistee County, Michigan.¹ Weaver claims that the United States of America (the Government)² in the person of the United States Forest Service (Forest Service) was negligent in maintaining the area of the Pine River at the point where Low Bridge crosses it (Count I); that the Government created, maintained and failed to warn of a nuisance (Counts II, III, and IV), that the Government committed an intentional tort on Weaver (Count V), and the Government engaged in willful and wanton misconduct (Count VI). Further, Weaver claims that the Government is liable for his injuries because the Low Bridge area constitutes a "developed area" (Count VII), because the Government provided information regarding the Pine River but failed to provide information on diving and swimming (Count VIII), and because the Government is the possessor of the land (Count IX). Now before the Court is the Government's motion for summary judgment. For the reasons stated below, the motion is GRANTED. This case is DISMISSED.

II.

A.

On June 14, 1987, Weaver and fifteen friends were completing a three day weekend canoe trip down the Pine River. They rented their canoes from a private livery. The group canoed that morning and stopped around noon for lunch. During the morning and lunch hours the group, Weaver included, drank some beer and liquor and smoked some marijuana. After lunch, Weaver slept in his canoe while his brother paddled. Around 2:00 or 3:00 p.m. the group arrived at the termination point of the trip, Low Bridge. Weaver woke up. He got out of the canoe close to the shore and stepped into about ankle or knee deep water. He and his brother pulled the canoe out of the water.

Weaver saw several persons swimming in the river. He observed a man standing in water about chest high approximately twenty feet from shore. The Pine River was about one hundred feet wide at the location. Weaver climbed onto Low Bridge over the river and dove into the river with his hands out in front of him. Upon entering the water, the top of his head or his forehead hit something in the water or the bottom of the river. He blacked out and was pulled from the river by his friends. He regained consciousness and was transported by ambulance to a hospital where it was determined that he had broken his back.

Prior to the canoe trip, Weaver had successfully completed several water safety courses including advanced lifesaving and life guard training. In addition, he had worked as a lifeguard and had passed the water safety instructor test although he never worked as an instructor.

B.

The Pine River, which flows in a northwest direction, is frequently used by canoeists. Four separate canoe landings are located along the relevant stretch of the river. Low Bridge is one of the four landings and it is located northwest of the other three canoe landings: (1) Peterson Bridge, (2) Elms Flat, and (3) Dobson Bridge. Peterson Bridge is the canoe landing closest to Low Bridge; Elms Flat and Dobson Bridge are farther upstream from Low Bridge Road. A significant percentage of canoeists launch their canoes at either Elms Flat, Dobson Bridge or Peterson Bridge and end their trips at Low Bridge. The canoe landings have picnic areas, parking lots, rest rooms, and other facilities. The Low Bridge area has a cleared space used for parking, a garbage can, a sandy deposit on the left bank and a steep bank to the right. Low Bridge Road, a single road, runs across the river on a bridge the bottom of which is only a few inches above the water.

The exterior boundaries of the Cadillac District of the Huron-Manistee National Forest delineate some 200,000 acres of land. At the time of Weaver's accident approximately 125,000 acres were owned by the Government and approximately 75,000 were privately owned. All four of the canoe landings are within the boundaries of the National Forest. However, at the time of Weavers injury, the land surrounding and underlying the river at Low Bridge up to a point one mile upstream (east) was owned by the Consumers Power Company (Consumers Power).³ The USA was not responsible for the maintenance of the Low Bridge Road or Low Bridge as they were constructed, owned and maintained by the Manistee County Road Commission. The Government owned the land surrounding and underlying the river at Peterson Bridge, Elms Flat and Dobson Bridge. At Peterson Bridge, the government posted a sign stating the distance and float time to the Low Bridge.⁴

Along the 25 miles of the Pine River upstream from Low Bridge, there are thirty to forty privately owned small lots with houses or cabins on them. The lots were sold by Consumers Power in the mid 1960's, as was substantial acreage sold to the United States. The deeds to the small lots each contain restrictive covenants which prohibit commercial operations on the land. No such restriction exists in the deed to the Consumers Power land in or adjacent to the Low Bridge area.

C.

The Government published a recreation opportunity guide (ROG) which, among other things: (1) described many of the Pine River's physical characteristics, (2) listed regulations applicable to canoeists who use the river, (3) informed the public how to obtain the permits which are required to canoe on the river, (4) gave directions to the three canoe landings that are located on property owned by the Government, and (5) had a map of the river. In its only two explicit references to the Low Bridge canoe landing, the ROG stated: (1) "Consumers Power Co. has one landing downstream at Low Bridge," and (2) the float time and distance from Peterson Bridge to Low Bridge. The ROG did not address swimming or diving in the river in general or at Low Bridge specifically, however, it cautioned that the average depth of the River was 2.2 feet but some pools were eight feet deep.

The National Forest Service had in effect two closure orders pertaining to the Pine River at the time of the accident. The orders apply only to land along the river owned by the National Forest Service at the time the order was issued. No order was ever issued which applied to the river itself. The first closure order, issued during the 1960's or 1970's, restricted camping within one quarter mile of the river. The second closure order issued in 1977, restricts public launching or retrieving a watercraft on National Forest land except at designated landing sites and a permit is required. The permits are issued by the National Forest Service by mail or at the Cadillac District Ranger Office. Canoe rental liveries issue permits to those renting canoes. There is no fee for the permit. A permit was not required in order to launch or retrieve a boat at Low Bridge. Pursuant to a Special Use Permit issued by the National Forest Service, seven private canoe liveries are permitted to rent canoes launched or retrieved on National Forest land.

III.

The government's liability under the FTCA is determined in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b); Frazier v. United States, 412 F.2d 22, 23 (6th Cir. 1969). Here, since the injury and alleged tortious conduct occurred within the State of Michigan. Therefore, the substantive law of Michigan applies.

A.

The Government first contends that the Michigan Recreational Use Act (RUA), M.C.L.A. § 300.201; M.S.A. § 13.1485, bars Weaver's recovery in the absence of gross negligence or willful and wanton misconduct. Further, the Government claims that the RUA bars Weaver's nuisance claims. In response, Weaver argues that the RUA does not apply to this case but if the Court determines that it does, the Government's actions constitute willful and wanton misconduct so as to remove the action from the scope of the Act.

The RUA provides in relevant part:

No cause of action shall arise for injuries to any person who is on the lands of another without paying to the owner, tenant, or lessee of the lands a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.

The statute is intended to apply to large tracts of undeveloped land suitable for outdoor recreational uses. Wymer v. Holmes, 429 Mich. 66, 412 N.W.2d 213 (1987). Urban, suburban, and subdivided lands were not intended to be covered by the RUA. Id. The RUA has been found applicable to governmental agencies, including the United States. Miller v. United States Dept. of Interior, 649 F.Supp. 444 (W.D.Mich.1986).⁵ The Act is not concerned with ownership. Rather, its focus is on the injured person's purpose for going on the land and the character of the land, i.e., whether it remains in a relatively natural state or has been developed and changed in a manner incompatible with the intentions of the Act. Wilson v. Thomas L. McNamara, Inc., 173 Mich.App. 372, 377, 433 N.W.2d 851 (1988). Ownership by the defendant of the precise land on which a plaintiff is injured is not required so long as the injuries suffered by a plaintiff were proximately cause by a plaintiff's use of defendant's land. James v. Leco Corp., 170 Mich.App....