Wilson v. U.S.
| Decision Date | 10 May 1993 |
| Docket Number | Nos. 92-1438,92-3363,s. 92-1438 |
| Parties | Mark D. WILSON; Janet L. Wilson, Appellants, v. UNITED STATES of America; The Boy Scouts of America, Appellees. Mark D. WILSON; Janet L. Wilson, Plaintiffs, v. THE BOY SCOUTS OF AMERICA, Defendants. Jason S. HARBIAN; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump, Appellants, v. UNITED STATES of America; The Boy Scouts of America, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Allen DeWoskin (argued), St. Louis, MO, for appellants Mark and Janet Wilson.
Joseph Moore, Asst. U.S. Atty. (argued), St. Louis, MO, for appellee U.S.
Robert Cockerham (argued), St. Louis, MO, for the Boy Scouts of America.
Before HANSEN, Circuit Judge, and HEANEY and ROSS, Senior Circuit Judges.
Appellants Mark Wilson and Janet Wilson, the parents of Anthony Wilson, and Jason Harbian and Daniel Winfrey, and their parents, appeal from the trial court's 1 grant of summary judgment in favor of appellees United States of America and the Boy Scouts of America, in an action arising out of the death of Anthony Wilson and the injuries sustained by Jason Harbian and Daniel Winfrey.
On April 22, 1988, Anthony Wilson, Daniel Winfrey and Jason Harbian, members of Troop 392 of the Boy Scouts of America, St. Louis Area Council, along with other boy scouts and five adult leaders, went to Fort Leonard Wood, a United States Army military post, on a boy scout trip as part of the Army's Youth Tour Program. A pile of lightweight aluminum alloy irrigation pipes, approximately thirty feet in length, were stacked outside Building 1614, where the troop was billeted for the weekend. The pipes had been used for irrigation of the athletic field adjacent to the building, and when not in use, were stored alongside the building. The pipes had been stacked in this manner for approximately six years.
On the second night of their weekend stay, at approximately 10:30 p.m., Anthony, age thirteen, and five or six other scouts, ages twelve to sixteen, were outside Building 1614, while the leaders were inside the building. Anthony, Daniel and Jason picked up one of the aluminum pipes, carried it approximately twenty feet west of the building, and raised it to a near vertical position, causing the pipe to come in contact with a 7,200 volt power line which ran over the building. All three scouts received electric shocks; Anthony died as a result of the injuries he sustained.
Mark and Janet Wilson brought a wrongful death action against the United States pursuant to the Federal Tort Claims Act, and against the Boy Scouts of America (BSA) pursuant to Missouri state law, for negligent supervision and failure to train the adult supervisors. Sometime later the Harbian/Winfrey plaintiffs filed personal injury actions against both the United States and the BSA, and eventually these cases were consolidated with the Wilson case for trial. Motions for summary judgment filed by the United States and the BSA were eventually granted as against all appellants. 2
The appellants' theory of recovery against the BSA is based on an alleged agency relationship between the BSA and the adult volunteers supervising the scouts. The district court granted the BSA's motion for summary judgment, concluding that appellants failed to produce any evidence that the national organization of the BSA had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. The district court also granted the United States' motion for summary judgment based on its finding that the United States owed no duty of care to the scouts because they were recreational users of the property under Missouri's Recreational Land Use Statute. See Mo.Rev.Stat. § 537.346. After careful consideration of each allegation raised by the appellants, we affirm the decision of the district court.
The action against the United States arises under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, thus, the "United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances." Id. at § 2674. Further, the United States is "entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States ... as well as any other defenses to which the United States is entitled." Id. Therefore, the United States is entitled to the benefit of state recreational use statutes, if applicable, when it is sued under the Federal Tort Claims Act. See Hegg v. United States, 817 F.2d 1328, 1329 (8th Cir.1987) ( the Iowa Recreational Use Statute); Umpleby v. United States, 806 F.2d 812, 815 (8th Cir.1986) (applying North Dakota's Recreational Use Statute).
The Missouri Recreational Land Use Statute, Mo.Rev.Stat. §§ 537.345-537.348 immunizes landowners who make their property available for the recreational use of others without an entry charge. The statute specifically provides:
Except as provided in sections 537.345 to 537.348, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.
Id. at § 537.346. "Charge" is defined in the statute as:
the admission price or fee asked by an owner of land or an invitation or permission without price or fee to use land for recreational purposes when such invitation or permission is given for the purpose of sales promotion, advertising or public goodwill in fostering business purposes.
Id. at § 537.345(1). "Recreational use" as defined in the statute includes outdoor activities, such as "hunting, fishing, camping, picnicking, biking, nature study [and] winter sports." Id. at § 537.345(4).
While providing for a general immunity against liability, a landowner may nonetheless be liable if found to have been either maliciously or grossly negligent in failing to guard or warn against a dangerous condition which the owner knew or should have known to be dangerous, or if the landowner negligently failed to warn or guard against an ultrahazardous condition. Id. at § 537.348(1). Other exceptions to the nonliability of the statute include injuries occurring on or in any "noncovered land," which is defined as land used primarily for commercial, industrial or manufacturing purposes. Id. at § 537.348(3)(d).
The appellants contend that the Missouri Recreational Land Use Statute does not apply to the United States because (1) the Army charged $2.00 per person to be billeted in Building 1614; (2) the United States receives an economic benefit from offering its land; (3) the Boy Scouts were not members of the "general public," and thus were not covered by the Act; (4) the injury occurred on "noncovered land;" and (5) the United States negligently failed to protect against an ultrahazardous condition.
Fort Leonard Wood is an open military post, where members of the public can freely enter without being stopped or questioned by guards or military police. Specified areas are open to the public for fishing, hunting, hiking, camping, picnicking or canoeing. Many tours are given to various groups, such as senior citizens and church and school groups, free of charge. The Fort also offers a Youth Tour Program which is open only to national youth organizations, such as the Boy Scouts of America. The program includes activities which are not available to the general public, such as visits to the Fort's museum, an indoor rifle range, and obstacle course and a cannon range.
If a troop in the Youth Tour Program chooses to stay overnight in Building 1614, a $2.00 per person/per night lodging fee is charged. This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, soap, and other supplies. If a troop chooses to stay overnight but no beds are available, the lodging fee is reduced to $1.00 per person/per night. Significantly, the lodging fee is charged on a per person/per night basis, while there is no charge for the tour itself, which is offered only on Saturdays.
The interpretation of the various recreational use statutes is controlled by the precise language of each statute. Courts that have construed recreational land use statutes with language similar to the Missouri statute have interpreted "charge" as "an admission fee to enter the land." For example, in Genco v. Connecticut Light and Power Co., 7 Conn.App. 164, 508 A.2d 58, 62 (1986), noting that the Connecticut General Statute § 52-557f defines "charge" as "the admission price or fee asked in return for invitation or permission to enter or go upon the land," the court held that "the only way to avoid inconsistent application of the Act ... is to interpret the word 'charge' as an actual admission price paid for permission to enter the land at the time of its use for recreational purposes." Id. (emphasis added).
Furthermore, a parking fee paid by a camper is not a charge within the meaning of the Nebraska Recreational Use Statute, which defines "charge" as "the amount of money asked in return for an invitation to enter or go upon the land." Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309, 313 (1984) (emphasis added). In Garreans, the court noted that the
[c]harges were made for the right to park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment of the fee ... did not entitle ... [the person paying the fee] to a greater right to use any of the park's other facilities than that had by the general public.
As in Jones v. United States, 693 F.2d 1299, 1303 (9th Cir.1982), where a...
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