Wilson v. US
| Decision Date | 05 April 1991 |
| Docket Number | No. TCA 88-40172-WS.,TCA 88-40172-WS. |
| Citation | 786 F. Supp. 1571 |
| Parties | Randy WILSON, and Leroy Wilson, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Florida |
Donald A. Hinkle, Fonvielle & Hinkle, Robert L. Hinkle, Aurell, Radey, Hinkle & Thomas, Tallahassee, Fla., for plaintiffs.
Roy F. Blondeau, Jr., Asst. U.S. Atty., for U.S.
This matter is before the court upon defendant's motion to dismiss or alternatively for summary judgment (document 28) pursuant to Rules 12(b) and 56, Federal Rules of Civil Procedure, respectively.
The plaintiffs are suing the United States under the Federal Tort Claims Act, Title 28, United States Code, section 1346(b), 2671, et seq., for the alleged negligence of the Department of the Army Corps of Engineers ("Corps").
The defendant, by and through the Corps, operates and maintains a swimming area for recreational purposes at Lake Seminole known as the "Chattahoochee Booster Club Swimming Area." At all times material to this action, the defendant had possession and control of this site which is located in Georgia.
On June 8, 1987, the plaintiff, Randy Wilson, suffered serious injury and was rendered a quadriplegic after diving from the top of a pole-type piling in the lake. The pole was about six to seven-and-a-half feet in height, and stood in about two to three-and-a-half feet of water. The pole was one of several in the area which served to secure cables connected to buoys demarking the boundaries of the swimming area.
Randy was 16 years old when the accident occurred. He was a student at Shanks High School in Quincy, Florida. Randy knew how to swim although he had never received formal lessons. (Deposition of Randy Wilson at 31). He also had limited diving experience in high school. (Depo.R.W. at 31-33).
It is undisputed that Randy visited the swimming area on previous occasions and that on the day of the incident, had walked or swam for 30 minutes in the area of the pole just prior to his dive. (Depo.R.W. at 27-30). The water was shallow enough to walk out to the pole. Id. Randy dove only once from the pole, having managed to climb all the way to the top before diving. (Depo.R.W. at 29).
The plaintiffs filed this lawsuit alleging that the United States was negligent in the operation of the swimming area and that the area was unreasonably dangerous. The plaintiffs further allege that the defendant's failure to eliminate or reduce the danger, and to warn or instruct visitors of the alleged danger was the direct and proximate cause of Randy Wilson's injuries.
The United States has moved to dismiss this lawsuit for failure to state a claim for which relief can be granted or in the alternative, for summary judgment on the ground that Georgia's Recreational Property Act, Ga.Code Ann., sections 51-3-20 et seq., bars plaintiffs from recovering. The plaintiffs respond by asserting that the Georgia Act does not protect the United States if there was a willful failure to warn. See Document 43. The Georgia Act states in relevant part:
Additionally, the plaintiffs assert that the defendant's motions were untimely filed.
The plaintiffs argue that since the defendant raised the defense of failure to state a claim for which relief can be granted in their answer, the current "motion" is untimely. The defense of failure to state a claim may be raised as late as "at the trial on the merits." Fed.R.Civ.P. 12(h)(2). While the rule does not allow the defense to be raised by motion after all pleadings have been served, the fact that the defendant timely raised the defense in its answer does not prevent it from subsequently renewing the issue, nor does the rule prevent a court, on its own initiative, from noting inadequacies in the complaint. 5A C. Wright, A. Miller, Federal Practice and Procedure, § 1357 at 301 n. 3 (1990).
Plaintiffs also argue that the alternative motion under Rule 56 is untimely filed as well. They point to this court's scheduling order of August 24, 1988 which provides in relevant part:
(5)(d) Motions for summary judgment shall be filed as promptly as possible, but, unless otherwise permitted by court order, not later than 20 days after the close of discovery.
While the defendant's motion was filed 26 days after the date on which discovery was scheduled to be closed, discovery was not closed on that date and, in fact, continued for months after the date the defendant filed its motion. In Matia v. Carpet Transp., Inc., 888 F.2d 118, 119 (11th Cir. 1989), the Eleventh Circuit affirmed a district court's decision to rule on a motion for summary judgment filed more than 20 days (in fact four months) after discovery was scheduled to close. The district court stated that since discovery continued beyond scheduled date, and because consideration of the motion would be in the best interests of judicial economy, the motion would be considered. Id. Therefore, based on the above-mentioned rationale, the court will entertain the defendant's motion to dismiss or alternatively for summary judgment, over plaintiffs' objections.
The amended complaint alleges that the defendant "was negligent in the maintenance and operation of the swimming area ...;" "was negligent in its failure to warn ...;" and "as a direct and proximate result to the foregoing negligence of the Defendant ..." the plaintiff was injured. These allegations are insufficient to withstand a motion to dismiss for failure to state a claim, based on the requirements for finding liability under the Georgia Recreational Property Act. Ga.Code Ann. § 51-3-23. Under the Act, the defendant only has a duty not to "willfully or maliciously" fail to guard or warn of a dangerous condition, use, structure or activity. Ga.Code Ann. § 51-3-25. An allegation of negligence on the part of the defendant simply does not rise to the level of willful or malicious failure to warn.
Because matters outside the pleadings have been presented and accepted for consideration, this court must now treat the defendant's motion to dismiss as a motion for summary judgment. Fed.R.Civ.P. 12(b). However, even if the plaintiffs were allowed to amend their complaint to allege that the defendant willfully or maliciously failed to warn Randy Wilson of the danger of diving from the pole, the court finds that such an amendment would be to no avail. Under Georgia law and the undisputed facts of this case, the defendant cannot be found liable as a matter of law.
A motion for summary judgment should only be granted when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if the record, taken as a whole, could lead a rational trier of fact to find for the non-moving party, and is "material" if it might affect the outcome of the case. See Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted) (emphasis added).
Earley v. Champion Intern. Corp., 907 F.2d 1077, 1080-81 (11th Cir.1990). Of course, all inferences that can be drawn from the record must be viewed in the light most favorable to the non-moving party.
Under the Federal Tort Claims Act, the United States is liable for damages "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. §§ 1346(b), 2674; Kleer v. United States, 761 F.2d 1492, 1493 (11th Cir.1985). The parties do not dispute that the Georgia Recreational Property Act applies. The Act was designed to limit the liability of property owners who make their land...
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