Carolyn L. Ducey v. United States of America, Lois M. Olson v. United States of America, Helen Grugel v. United States

Plaintiffs appeal from the district court’s judgment for the defendant United States in three consolidated wrongful death actions brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 (b), 2671-2680 (1976). 523 F.Supp. 225 (D.Nev. 1981). We have jurisdiction under 28 U.S.C. § 1291 (1976). We reverse in part and affirm in part.

FACTS

The spouses of the three plaintiffs in these consolidated cases (the “Users”) were killed in a flash flood in the Lake Mead National Recreational Area (LMNRA) in Nevada on September 14, 1974. The Users had been camping at and boating from a recreational site on the banks of the Colorado River in Eldorado Canyon. The National Park Service (NPS), the agency that operated the LMNRA, provided a ranger station, boat launching ramp, and comfort stations at the site. In the same area Eldorado Canyon Resorts, Inc. (ECR), a concessioner of the NPS, maintained and operated a cafe-store, boat slips, automobile fueling and boat service facilities, rental cabins, and trailer spaces.

The parties stipulated that on the day of the flood, each of the Users was present “in the canyon that day for recreational purposes.” None of the Users had paid…

specially concurring:

I concur in the reasoning of our majority opinion authored by Judge Fletcher. I write separately to emphasize that the language of the Nevada recreational use statute compels this decision. Language in other state recreational use statutes, however, does not impose liability on the United States. E.g., Jones v. United States, 693 F.2d 1299, 1303-04 (9th Cir.1982) (Washington recreational use statute). The Federal Torts Claims Act exception to sovereign immunity depends on application of state law. FTCA claims based on state recreational use statutes will thus continue to yield the disparate results shown in the cases surveyed in our opinion.

It is difficult to imagine that Congress, in passing the Federal Torts Claims Act, envisioned liability of the United States for injuries during recreation on the public lands. Nevertheless, the FTCA permits no other result when the Nevada recreational use statute is applied. If the liability of the United States is to be based on a uniform policy rather than the vagaries of individual state recreational use statutes, congressional action is definitely required.

dissenting:

I agree with the district court that the Government was entitled to immunity under the Nevada Recreational Use Statute and therefore would affirm the judgment rendered by the trial court.

We start with the proposition that a person is welcome to make use of the wilderness areas of the United States, but that he does so at his own risk with respect to the hazards of the terrain and the elements. If the Government, or another owner, were to be exposed to liability if it fails to warn each such user of any potential danger from flooding or fire or avalanche, such areas doubtless would be placed off limits, to the great disadvantage of people that enjoy using them.

The burden of loss for the unfortunate deaths here concerned must lie where it falls, unless there is a valid reason to place it elsewhere. The Nevada statute attempts to recognize this problem and establish a reasonable balance of considerations: An owner of land that is willing to permit others the use of it for recreational purposes is freed from liability unless he requires a “consideration” for “permission ... to participate in ... recreational aetiv *518 ities.” I read the statute to mean quite clearly…

713 F.2d 504 Carolyn L. DUCEY, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Lois M. OLSON, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Helen GRUGEL, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 81-6058. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 13, 1982. Decided Aug. 18, 1983. As Amended Oct. 27, 1983. Betsy Ginsberg, Trial Atty., U.S. Dept. of Justice, Washington, D.C., for defendant-appellee. Arthur J. Jaffee, Pomona, Cal., for plaintiffs-appellants. Appeal from the United States District Court for the District of Nevada. Before SKOPIL and FLETCHER, Circuit Judges, and GRAY, * District Judge. FLETCHER, Circuit Judge: 1 Plaintiffs appeal from the district court's judgment for the defendant United States in three consolidated wrongful death actions brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 (b), 2671-2680 (1976). 523 F.Supp. 225 (D.Nev.1981). We have jurisdiction under 28 U.S.C. § 1291 (1976). We reverse in part and affirm in part. FACTS 2 The spouses of the three plaintiffs in these consolidated…