3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5
6 LESLYE HINDS, Case No. 2:21-cv-622-ART-MDC
7 Plaintiff, ORDER ON DEFENDANT’S MOTION v. FOR SUMMARY JUDGMENT (ECF 8 No. 39) UNITED STATES OF AMERICA, 9 Defendant. 10 11 Plaintiff Leslye Hinds brings this action against Defendant United States of 12 America, alleging that Defendant is liable for injuries she suffered from a fall while 13 visiting the Desert National Wildlife Refuge in Nevada. Before the Court is 14 Defendant’s motion for summary judgment. (ECF No. 30.) Plaintiff filed a 15 response (ECF No. 40), and Defendant filed a reply (ECF No. 41.) 16 I. BACKGROUND 17 Defendant previously filed a motion to dismiss, or in the alternative for 18 summary judgment (ECF No. 31), arguing that the Court should dismiss the case 19 for lack of jurisdiction pursuant to the Discretionary Function Exception to the 20 Federal Tort Claims Act (“FTCA”) or, alternatively, that the Court should grant 21 summary judgment because Defendant does not owe any duty to Plaintiff per 22 Nevada’s Recreational Use Statute, NRS 41.510. After a hearing on that motion, 23 the Court denied Defendant’s motion to dismiss under the Discretionary Function 24 Exception and granted Defendant leave to file a new motion for summary 25 judgment on the issue of willfulness under NRS 41.510, as the Nevada Supreme 26 Court had issued a new decision on that issue, Abbott v. City of Henderson, 542 27 P.3d 10 (Nev. 2024), since the parties had briefed the original motion. (ECF No. 28 38.) Defendant then filed a new motion for summary judgment, arguing that 1 under Abbott, Plaintiff’s claim should be denied because she has failed to present 2 evidence that Defendant acted willfully. (ECF No. 39.) Because the Court finds 3 that Plaintiff has presented sufficient evidence to create a genuine dispute of 4 material fact as to whether Defendant’s conduct was willful, the Court denies 5 Defendant’s motion for summary judgment. 6 II. FACTS 7 On September 24, 2019, Plaintiff Leslye Hinds visited the Refuge with her 8 husband, Richard Hinds. (ECF No. 40-2 at 37:12-20). They were walking on the 9 Corn Creek Trail hiking path when they approached the Coyote Loop section. (Id. 10 at 37:18-22.) A volunteer, Richard Mahan, was trimming mesquite trees on the 11 sides of the trail and laying the brush within the designated walking pathway. 12 (Id. at 37:22-38:02.) He never placed any signs warning of the blockage. (Id. at 13 47:22-48:11.) 14 Leslye and Richard both testified that they told Mr. Mahan that they would 15 turn around and go another way, but Mr. Mahan replied that he would move the 16 brush for them. (Id. at 38:03-05; ECF No. 40-3 at 31:10-32:4.) Leslye asserts that 17 Mr. Mahan only cleared at most a few inches of the pathway and directed them 18 to walk around the side of the path onto the railroad tie outlining the path, which 19 was just barely wide enough to proceed single file. (ECF No. 40-2 at 38:04-7; 20 42:20-25; 43:11-16.) Leslye, who suffers from multiple sclerosis (“MS”), fell while 21 walking on the railroad tie and broke her left wrist. (Id. at 15:21; 38:14-16; 61:01- 22 63:12.) 23 Mr. Mahan provides a different version of events. While he agrees that the 24 mesquite brush trimmings were blocking the entire width of the path, he 25 maintains that he saw Leslye approaching, turned back to his work, and then 26 saw her again after she had fallen to the ground. (ECF No. 40-4 at 25:19-25; 27 26:05-11; 48:6-11.) Mr. Mahan states that he never spoke with the Hinds prior 28 to Leslye stepping onto the railroad tie. (Id. at 47:15-48:3.) 1 III. LEGAL STANDARD 2 “The purpose of summary judgment is to avoid unnecessary trials when 3 there is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. 4 Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is 5 appropriate when the pleadings, the discovery and disclosure materials on file, 6 and any affidavits “show there is no genuine issue as to any material fact and 7 that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. 8 Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there is a sufficient 9 evidentiary basis on which a reasonable fact-finder could find for the nonmoving 10 party and a dispute is “material” if it could affect the outcome of the suit under 11 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 12 The court must view the facts in the light most favorable to the non-moving party 13 and give it the benefit of all reasonable inferences to be drawn from those facts. 14 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 15 The party seeking summary judgment bears the initial burden of informing 16 the court of the basis for its motion and identifying those portions of the record 17 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 18 U.S. at 323. Once the moving party satisfies Rule 56’s requirements, the burden 19 shifts to the non-moving party to “set forth specific facts showing that there is a 20 genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may 21 not rely on denials in the pleadings but must produce specific evidence, through 22 affidavits or admissible discovery material, to show that the dispute exists[.]” 23 Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). 24 IV. ANALYSIS 25 At issue in the present motion is (1) the standard for willfulness under 26 Nevada’s Recreational Use Statute, NRS 41.510, and (2) whether, viewing the 27 facts in the light most favorable to the Plaintiff, there is a genuine dispute of 28 material fact as to whether Mr. Mahan’s conduct meets the standard for 1 willfulness. These issues are addressed in turn. 2 A. Willfulness Standard Under NRS 41.510 3 Under the FTCA, sovereign immunity is waived if a private person would 4 be liable to the claimant in accordance with the law of the place where the act or 5 omission occurred. 28 U.S.C. § 1346(b)(1). As the incident occurred in Nevada, 6 Nevada law applies. Nevada’s Recreational Use Statute provides that landowners 7 owe no duty when they allow others to use their property for recreational 8 activities, thus precluding negligence claims against property owners in such 9 situations. NRS 41.510(1). However, an exception applies when an otherwise 10 immune entity participates in “willful or malicious failure to guard, or to warn 11 against, a dangerous condition, use, structure or activity.” NRS. 41.510(3)(a)(1). 12 If a party can show that the owner’s conduct was willful or malicious, a negligence 13 claim will not be barred. Id. The parties do not dispute that Plaintiff was a 14 recreational user of the land, making NRS 41.510
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3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5
6 LESLYE HINDS, Case No. 2:21-cv-622-ART-MDC
7 Plaintiff, ORDER ON DEFENDANT’S MOTION v. FOR SUMMARY JUDGMENT (ECF 8 No. 39) UNITED STATES OF AMERICA, 9 Defendant. 10 11 Plaintiff Leslye Hinds brings this action against Defendant United States of 12 America, alleging that Defendant is liable for injuries she suffered from a fall while 13 visiting the Desert National Wildlife Refuge in Nevada. Before the Court is 14 Defendant’s motion for summary judgment. (ECF No. 30.) Plaintiff filed a 15 response (ECF No. 40), and Defendant filed a reply (ECF No. 41.) 16 I. BACKGROUND 17 Defendant previously filed a motion to dismiss, or in the alternative for 18 summary judgment (ECF No. 31), arguing that the Court should dismiss the case 19 for lack of jurisdiction pursuant to the Discretionary Function Exception to the 20 Federal Tort Claims Act (“FTCA”) or, alternatively, that the Court should grant 21 summary judgment because Defendant does not owe any duty to Plaintiff per 22 Nevada’s Recreational Use Statute, NRS 41.510. After a hearing on that motion, 23 the Court denied Defendant’s motion to dismiss under the Discretionary Function 24 Exception and granted Defendant leave to file a new motion for summary 25 judgment on the issue of willfulness under NRS 41.510, as the Nevada Supreme 26 Court had issued a new decision on that issue, Abbott v. City of Henderson, 542 27 P.3d 10 (Nev. 2024), since the parties had briefed the original motion. (ECF No. 28 38.) Defendant then filed a new motion for summary judgment, arguing that 1 under Abbott, Plaintiff’s claim should be denied because she has failed to present 2 evidence that Defendant acted willfully. (ECF No. 39.) Because the Court finds 3 that Plaintiff has presented sufficient evidence to create a genuine dispute of 4 material fact as to whether Defendant’s conduct was willful, the Court denies 5 Defendant’s motion for summary judgment. 6 II. FACTS 7 On September 24, 2019, Plaintiff Leslye Hinds visited the Refuge with her 8 husband, Richard Hinds. (ECF No. 40-2 at 37:12-20). They were walking on the 9 Corn Creek Trail hiking path when they approached the Coyote Loop section. (Id. 10 at 37:18-22.) A volunteer, Richard Mahan, was trimming mesquite trees on the 11 sides of the trail and laying the brush within the designated walking pathway. 12 (Id. at 37:22-38:02.) He never placed any signs warning of the blockage. (Id. at 13 47:22-48:11.) 14 Leslye and Richard both testified that they told Mr. Mahan that they would 15 turn around and go another way, but Mr. Mahan replied that he would move the 16 brush for them. (Id. at 38:03-05; ECF No. 40-3 at 31:10-32:4.) Leslye asserts that 17 Mr. Mahan only cleared at most a few inches of the pathway and directed them 18 to walk around the side of the path onto the railroad tie outlining the path, which 19 was just barely wide enough to proceed single file. (ECF No. 40-2 at 38:04-7; 20 42:20-25; 43:11-16.) Leslye, who suffers from multiple sclerosis (“MS”), fell while 21 walking on the railroad tie and broke her left wrist. (Id. at 15:21; 38:14-16; 61:01- 22 63:12.) 23 Mr. Mahan provides a different version of events. While he agrees that the 24 mesquite brush trimmings were blocking the entire width of the path, he 25 maintains that he saw Leslye approaching, turned back to his work, and then 26 saw her again after she had fallen to the ground. (ECF No. 40-4 at 25:19-25; 27 26:05-11; 48:6-11.) Mr. Mahan states that he never spoke with the Hinds prior 28 to Leslye stepping onto the railroad tie. (Id. at 47:15-48:3.) 1 III. LEGAL STANDARD 2 “The purpose of summary judgment is to avoid unnecessary trials when 3 there is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. 4 Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is 5 appropriate when the pleadings, the discovery and disclosure materials on file, 6 and any affidavits “show there is no genuine issue as to any material fact and 7 that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. 8 Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there is a sufficient 9 evidentiary basis on which a reasonable fact-finder could find for the nonmoving 10 party and a dispute is “material” if it could affect the outcome of the suit under 11 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 12 The court must view the facts in the light most favorable to the non-moving party 13 and give it the benefit of all reasonable inferences to be drawn from those facts. 14 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 15 The party seeking summary judgment bears the initial burden of informing 16 the court of the basis for its motion and identifying those portions of the record 17 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 18 U.S. at 323. Once the moving party satisfies Rule 56’s requirements, the burden 19 shifts to the non-moving party to “set forth specific facts showing that there is a 20 genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may 21 not rely on denials in the pleadings but must produce specific evidence, through 22 affidavits or admissible discovery material, to show that the dispute exists[.]” 23 Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). 24 IV. ANALYSIS 25 At issue in the present motion is (1) the standard for willfulness under 26 Nevada’s Recreational Use Statute, NRS 41.510, and (2) whether, viewing the 27 facts in the light most favorable to the Plaintiff, there is a genuine dispute of 28 material fact as to whether Mr. Mahan’s conduct meets the standard for 1 willfulness. These issues are addressed in turn. 2 A. Willfulness Standard Under NRS 41.510 3 Under the FTCA, sovereign immunity is waived if a private person would 4 be liable to the claimant in accordance with the law of the place where the act or 5 omission occurred. 28 U.S.C. § 1346(b)(1). As the incident occurred in Nevada, 6 Nevada law applies. Nevada’s Recreational Use Statute provides that landowners 7 owe no duty when they allow others to use their property for recreational 8 activities, thus precluding negligence claims against property owners in such 9 situations. NRS 41.510(1). However, an exception applies when an otherwise 10 immune entity participates in “willful or malicious failure to guard, or to warn 11 against, a dangerous condition, use, structure or activity.” NRS. 41.510(3)(a)(1). 12 If a party can show that the owner’s conduct was willful or malicious, a negligence 13 claim will not be barred. Id. The parties do not dispute that Plaintiff was a 14 recreational user of the land, making NRS 41.510(1) applicable to this action. 15 (See ECF No. 40-2 at 19:7-8.) 16 The Nevada Supreme Court has described the standard for willful or 17 wanton conduct as “intentional wrongful conduct, done either with knowledge 18 that serious injury to another will probably result, or with a wanton or reckless 19 disregard of the possible result.” Boland v. Nevada Rock & Sand Co., 894 P.2d 20 988, 991 (Nev. 1995) (superseded by statute on other grounds) (citing Davies v. 21 Butler, 602 P.2d 605, 609–10 (Nev. 1979)). 22 This year, the Nevada Supreme Court again addressed the issue of 23 willfulness in Abbott v. City of Henderson, 542 P.3d 10 (Nev. 2024). In Abbott, the 24 plaintiff alleged that she slipped on the edge of a rubber surface and fractured 25 her leg while assisting her child on a slide in a city park. Id. at 11. The plaintiff 26 alleged that a drop on the rubber surface surrounding the playground was 27 exposed because the adjacent sand was not raked so as to level the drop. Id. The 28 plaintiff argued that the city had willfully created a hazardous condition, and 1 thus was not immune under NRS 41.510. Id. at 12. 2 The Nevada Supreme Court affirmed the lower court’s ruling that the city 3 did not act willfully because the plaintiff provided no evidence that the city’s 4 conduct was willful. In doing so, the Nevada Supreme Court reiterated the 5 standard from Davies and Boland, stating, “[t]his court has determined that 6 willful or malicious conduct is ‘intentional wrongful conduct, done either with 7 knowledge that serious injury to another will probably result, or with a wanton 8 or reckless disregard of the possible result’” Id. (quoting Boland, 894 P.2d at 991 9 (citing Davies 602 P.2d at 609–10)). The Abbott court went on to state that 10 “[w]illfulness, here, requires, ‘a design to inflict injury.’” Id. at 15. (quoting 11 Crosman v. S. Pac. Co., 194 P. 839, 843 (Nev. 1921)). 12 The evidence before the district court in Abbott indicated that the city 13 maintained the park, employed workers to pick up trash daily and perform 14 regular upkeep, had a park facilities maintenance person inspect each park 15 weekly, and hired a certified playground inspector to visit each playground 16 monthly to make repairs. Id. at 15. There was no evidence of any prior accidents 17 related to the unbeveled surface. Id. at 15. This evidence “demonstrated that 18 Henderson exercised some level of care with respect to the park.” Id. at 15. 19 Because plaintiff had “failed to provide any evidence of a design to cause an injury 20 or a reckless disregard to the risk of injury,” no genuine dispute of material fact 21 remained and summary judgment for the city was appropriate. Id. at 15-16. 22 Here, the Court finds, and the parties agree, that willfulness under Abbott 23 requires a design to inflict injury or a reckless disregard to the risk of injury. Id. 24 at 15. Additionally, where a plaintiff presents no evidence of willful conduct, 25 summary judgment for the defendant is appropriate. Id. at 14. 26 B. Evidence in this Case 27 Defendant argues that under Abbott, Plaintiff has not provided evidence of 28 willful conduct to create a genuine dispute of material fact. (ECF No. 38 at 8.) 1 Defendants point to several cases in which courts have granted summary 2 judgment for defendants due to lack of evidence that defendants had either actual 3 knowledge that serious injury to another will probably result, or a reckless 4 disregard of the possible result. (Id. at 11.) Defendants point to Thomas v. United 5 States, No. 215-CV-00291-APG-NJK, 2017 WL 379425 (D. Nev. Jan. 25, 2017), 6 Escobal v. Howard Hughes Co., LLC, 132 Nev. 966 (Nev. App. 2016), Neal v. Bently 7 Nevada Corp., 771 F. Supp. 1068 (D. Nev. 1991), aff'd, 5 F.3d 538 (9th Cir. 1993), 8 and Boland, 894 P.2d 988. (Id.) 9 In all these decisions, the plaintiffs presented no evidence that the 10 defendant had either actual or constructive knowledge of a probable injury. All of 11 these cases involved existing conditions on land, such as a hidden explosive on 12 BLM land, a wash running through a dirt bike trail, a rope swing over a river, 13 and a gravel pit. Thomas, 2017 WL 379425; Escobal, 132 Nev. 966; Neal, 771 F. 14 Supp. 1068; Boland, 894 P.2d 988. These cases are markedly different from the 15 one at hand. In none of these cases was a defendant or their representative 16 present at the time of the injury; in none of these cases was it alleged that a 17 defendant or their representative instructed the plaintiff to take an action which 18 ultimately resulted in their injury. The facts presented in this case thus 19 distinguish it from the cases Defendant cites. 20 Unlike in Abbott and the cases cited by Defendant, Plaintiff has not 21 presented no evidence of willfulness. Rather, Plaintiff has presented sufficient 22 evidence to create a triable issue of fact as to whether Mr. Mahan’s actions were 23 “willful” in that they were taken with at least a reckless disregard of the possible 24 result. Unlike in Abbott and the other cases Defendant relies upon, Plaintiff has 25 provided evidence to support her allegation that an agent of the landowner 26 created and directed her into a hazardous situation, causing her injury. 27 Specifically, Plaintiff has presented evidence that Mr. Mahan created a pile 28 of thorny brush blocking the hiking path, and that no signs were placed to warn 1 || of possible danger (ECF No. 40-4 at 25:19-25; 53:3-11; ECF No 40-2 at 37:22- 2 || 38:02.) Plaintiff has presented evidence via her and her husband’s testimony that 3 || when they approached the piles of brush, they told Mr. Mahan they would turn 4 || around, but Mr. Mahan offered to clear a few inches of brush off of the side of the 5 || trail next to the railroad tie. (ECF No. 40-2 at 38:03-05; ECF No. 40-3 at 31:10- 6 || 32:4.) Plaintiff also presents evidence that Mr. Mahan then told Plaintiff to walk 7 || around the brush where he had cleared it, causing her to walk along the railroad 8 || tie next to the pile of thorny brush (/d. at 38:03-05; ECF No. 40-3 at 31:10-32:4.) 9 || Additionally, Plaintiff has presented evidence that she was approximately 62 10 || years old and was using walking sticks on an ADA-accessible trail when Mr. 11 || Mahan instructed her and her husband to walk around the pile of brush. (ECF 12 || No. 40-2 at 10:4; 71:8-11; ECF No. 39-6 at 5.) 13 While some of these facts are in dispute, viewing the evidence in the light 14 || most favorable to Plaintiff at this stage, a reasonable trier of fact could find 15 || Plaintiff's version of the events to be true. Whether Mr. Mahan’s actions were 16 || taken with reckless disregard to the possibility of injury to Plaintiff, amounting 17 || to willfulness under NRS 41.510, is an issue of fact which cannot be resolved 18 || through summary judgment. 19 V. CONCLUSION 20 It is therefore ordered that Defendant’s motion for summary judgment (ECF 21 || No. 39) is DENIED. 22 23 Dated this 8 day of November, 2024. 24 25 j ), Vd 26 ANNE TRAUM 27 UNITED STATES DISTRICT JUDGE 28