Wright v. United States

Decision Date24 January 1977
Docket NumberNo. CV-74-92-HG.,CV-74-92-HG.
Citation428 F. Supp. 782
PartiesFrances G. WRIGHT, as guardian of the person and Estate of Patrick W. Cary, a minor and incompetent et al., Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Montana

Tom H. Foulds, Foulds, Felker & Gelfand, P. S., Seattle, Wash., James E. Purcell, Henningson, Purcell & Genzberger, Butte, Mont., for plaintiffs.

Thomas A. Olson, U. S. Atty., Billings, Mont., for defendant.


BATTIN, District Judge.

Presently pending before the Court are the respective motions for summary judgment filed by the plaintiffs and the defendant. The matter has been fully briefed by counsel for both parties; no hearing having been requested, the matter is deemed to be submitted on the briefs. Summary judgment is granted in favor of the defendant United States against the plaintiffs. Summary judgment is denied on the motion filed by the plaintiffs against the defendant.

Summary judgment, as authorized by Rule 56 of the Federal Rules of Civil Procedure, is a method for disposing of actions in which there is no genuine issue as to any material fact or in which only a question of law is involved. On a motion for summary judgment, the Court cannot try issues of fact. It can only determine whether there are issues to be tried. In this case, there appears to be no genuine issue of material fact, and therefore it is a proper case for summary judgment.

The burden is on the moving party to establish that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Matters presented in connection with a motion for summary judgment must be construed most favorably to the party opposing the motion. In cases of cross motions for summary judgment, the same principle applies and the facts are construed most strongly against the movant.


This case and the facts giving rise to it evolve from the tragic incident involving the near drowning of Patrick W. Cary. The facts as set forth below are essentially those set forth in the plaintiffs' pleadings.

During the years 1965 through 1968, the Farmers Home Administration, hereinafter referred to as "FMHA", an agency of the United States Department of Agriculture, sponsored and financed the creation and construction of a recreational complex located between Saco and Malta, Phillips County, Montana. The development of this recreational complex was part of a nationwide program for the implementation of which the FMHA promulgated methods and procedures for establishing rural recreation developments. 7 C.F.R. § 1823.1, et seq. Sleeping Buffalo Recreation Association was an organization of Phillips County citizens participating with the FMHA in the development of the Sleeping Buffalo recreation area. From 1965 to 1968, the period of creation and construction of the Sleeping Buffalo area, and from 1969 through September of 1971, the period of actual operation of the recreation complex, the Sleeping Buffalo Recreation Association worked closely with the FMHA.

On August 22, 1971, the plaintiff, Patrick W. Cary, paid a fee for admission to the swimming pool at the recreational complex. There were two lifeguards on duty at the time. Patrick Cary was swimming with a large number of minor children in the inside swimming pool at the Sleeping Buffalo complex. There was no lifeguard on station at the inside pool area. Each of the lifeguards on duty at the time of this incident thought the other was at the station at the inside pool. However, both lifeguards were among the crowd at the outside pool. The Sleeping Buffalo development is built at the location of some natural hot springs. There is high mineral content in the water at this area and as a result the water in the swimming pool was murky. The murky mineral water in the inside pool prevented visibility beyond the depth of a few feet. Furthermore, the inner perimeter pool lights were turned off and not operating at the time of this incident. Patrick Cary went under the surface of the water and disappeared in the inside pool. Approximately six to ten minutes elapsed before lifeguards were alerted and able to locate Patrick at the bottom of the pool. After extricating Patrick from the pool, sustained efforts by one of the lifeguards and subsequently a medical doctor resulted in the revival of Patrick Cary. However, because of the prolonged period without oxygen, Patrick Cary suffered massive and permanent brain damage.

In their complaint, the plaintiffs allege three counts involving different legal theories whereby they claim that the Government is liable to the plaintiffs. The three counts, simply stated, are as follows:

(1) Count One alleges the direct, active negligence on the part of FMHA in exercising operation control and management over the Sleeping Buffalo area and recreational complex;

(2) The second count alleges that the Sleeping Buffalo Recreational Area was no more than an empty corporate shell, whose directors, officers and employees and the corporation itself acted in a capacity as employees and agents of the FMHA;

(3) The third count alleges that the Government succeeded to all of the assets of the Sleeping Buffalo Recreation Association and likewise succeeded to the liabilities of the Sleeping Buffalo Recreation Association. One of the liabilities, which the plaintiffs claim the Government succeeded to, is the unliquidated claim of Patrick Cary.

The facts which predominate in this action are not those surrounding the actual incident wherein Patrick Cary nearly drowned. Rather, the facts establishing the relationship between the United States of America and the Sleeping Buffalo Recreation Association are the facts upon which summary judgment is granted. In March 1968, the United States of America provided land for the development of the Sleeping Buffalo Recreational Complex. Various pieces of land were transferred to the Sleeping Buffalo Association under Patent No. 25-68-0094. That patent required compliance with certain conditions, one of which was:

". . . an approved plan of development and management, filed August 11, 1967, and January 22, 1968 . . .." Patent XX-XX-XXXX, page 2, paragraph 4.

In granting the patent, the United States retained a reversionary interest conditioned upon the Sleeping Buffalo Recreational Association's compliance with the developmental plans they had filed. When the land was granted to the Sleeping Buffalo Association, the facilities already extant on the site were acquired from the American Legion, Malta Post 57, by warranty deed. The land and buildings held by Post 57 had been acquired from the United States Government by Patent No. 1182716. This Sleeping Buffalo patent, the patent from the United States granting the land to Malta Post 57 of the American Legion, both restricted the use of the land to "recreational purposes only" and retained a twenty-five-year reversionary right to the United States Government which the Sleeping Buffalo Recreational Association took subject to, under the terms of the warranty deed acquired from the American Legion.

Before the lands involved in the Sleeping Buffalo complex were transferred, a project report on the area was prepared by the FMHA. The project report set forth an organizational plan, a financing plan, and construction and management plans for the recreational development. Numerous details were included in the report, including: a construction cost estimate; a schedule of membership fees and membership classification; financial arrangements; proposed rates for the facility on a daily basis, including greens fees, swimming charges, and archery charges; and the requirements for insurance, including the requirements for liability insurance. The project plan also set forth the personnel requirements, including persons to be hired such as the project manager, the project bookkeeper and secretary, the project desk clerk, two lifeguards to attend the pools, and the number of maids necessary to maintain the sleeping accommodations. The report also provided that the Association of local citizens organized to operate as a Board of Directors for the Association was to be organized under the appropriate Montana statutes and with the approval of the State Director, FMHA, and the office of the General Counsel. The report also contains construction specifications for the construction of the golf course, the clubhouse, the swimming pool, and the tennis courts. After the Sleeping Buffalo Recreation Association was established, the lands eventually involved in the complex were granted to the Association subject to the conditions contained in the deeds, the most notable aspect being the reversion of the land to the United States in the event of the breach of a condition in the development and maintenance and operation of the Sleeping Buffalo complex.

In August of 1973, James and Kathleen Cary filed a claim for damages on behalf of themselves with the Farmers Home Administration. On the same day, August 21, 1973, a claim on behalf of Patrick Cary was filed with the Farmers Home Administration. The claims were denied and this action was commenced within the six-month limitation from the date of the denial of the claims.

The defendant has responded to certain requests for admissions made by the plaintiffs. A summary of these manifests a certain relationship between the FMHA and the Sleeping Buffalo Recreation Association. The FMHA attended virtually all of the Board of Directors' meetings for the Sleeping Buffalo Recreation Association. The FMHA worked to develop an advertising campaign for the complex. The FMHA advised and participated in certain construction decisions such as the design of a filtering system and furthermore required FMHA approval of such systems before the actual work was done. The State Director of the FMHA was kept continually apprised of the status of the recreational complex...

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    ...property unless it has authority to exercise day to day control over the operations of the managers of its property); Wright v. United States, 428 F.Supp. 782 (D.Mont.1977) aff'd, 599 F.2d 304 (9th Cir.1979) (government exercised insufficient control over local, nonprofit corporation to be ......
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