Montejo v. United States

• Court: Court of Appeals for the First Circuit
• Decided: February 10, 1997
• Docket: 96-1349
• Status: Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]



                            United States Court of Appeals
                            United States Court of Appeals

                                For the First Circuit
                                For the First Circuit



                                 ____________________


No. 96-1349



                                    OSCAR MONTEJO,



                                Plaintiff, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                 Defendant, Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Richard G. Stearns, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                 Stahl, Circuit Judge,
                                        _____________



                            Bownes, Senior Circuit Judge,
                                    ____________________



                              and Lynch, Circuit Judge.
                                         _____________



                                 ____________________



            Michaela A. Fanning with whom Gerald  T. Anglin and Tommasino  and
            ___________________           _________________     ______________

        Tommasino were on brief for appellant.
        _________

            John A. Capin, Assistant United States Attorney,  with whom Donald
            _____________                                               ______

        K. Stern, United States Attorney, was on brief for appellee.    
        ________



                                 ____________________



                                  February 10, 1997

                                 ____________________



PER CURIAM.   Plaintiff Oscar Montejo appeals  from
                      PER CURIAM.
                      __________



            summary  judgment on  his Federal  Tort  Claims Act  case, 28



            U.S.C.    2671 et seq., for injuries received in the Cape Cod
                           __ ___



            National Seashore  ("Seashore") when  the  motorcycle he  was



            riding struck a steel cable road barrier. 



                      We  review the  district court's  grant of  summary



            judgment de novo,  and using the  same criteria incumbent  on
                     _______



            the  district court, we review  the record in  the light most



            favorable to  the  nonmoving party,  drawing  all  reasonable



            inferences  in that  party's  favor.   MacGlashing v.  Dunlop
                                                   ___________     ______



            Equip. Co., 89  F.3d 932,  936 (1st Cir.  1996); Crawford  v.
            __________                                       ________



            Lamantia, 34 F.3d 28,  31 (1st Cir. 1994), cert.  denied, ___
            ________                                   ____   ______



            U.S. ___, 115 S. Ct. 1393 (1995); Garside v. Osco Drug, Inc.,
                                              _______    _______________



            895 F.2d 46, 48 (1st Cir. 1990).



                                    I.  THE FACTS
                                    I.  THE FACTS
                                        _________



                      The facts, viewed most favorably to  plaintiff, are



            as  follows.  The Seashore consists of land owned entirely by



            the  United States and is  part of the  national park system.



            Administration  of  the  Seashore  is overseen  by  the  Park



            Service,  a bureau  of the  United  States Department  of the



            Interior.   At all relevant  times, the Seashore  was open to



            the public without fee for recreational use.



                      The Seashore  contains a fire road  system which is



            both  accessible  ("Open   Roads")  and  restricted  ("Closed



            Roads") to public motor vehicles.  Public motor vehicles have


-2-
                                          2



limited  access to the fire road system and are restricted to



            using  only  the  Open  Roads when  traversing  the  Seashore



            grounds.  The only vehicles permitted to use the Closed Roads



            of  the fire  road system are  authorized emergency  and Park



            Service  vehicles.     All  other  motor  vehicles  including



            motorcycles are  strictly prohibited  from entering  onto the



            Closed Roads of the Seashore.



                      The  Park  Service  has  a longstanding  policy  of



            barring  access into the Closed Roads by placing a cable gate



            at each entrance way.   Each cable gate consists  of a length



            of  gray steel cable strung  and locked between  two posts on



            each side of the fire road.  Only emergency  and Park Service



            personnel  have keys that open  the gates.   The Park Service



            has  a  policy  of  marking  each  gate  with  distinct  neon



            streamers  and attaching  to  the gate  a sign  reading "FIRE



            ROAD."  In addition, at each entrance way, a sign placed next



            to the  gate proclaims "MOTORIZED VEHICLES  PROHIBITED."  The



            Park  Service regularly  patrols the  fire roads  to inspect,



            repair and replace vandalized or missing gates and signs.



                      On  October  12,  1990,   plaintiff  was  riding  a



            motorcycle at a decommissioned burn dump owned by the Town of



            Provincetown.  A sign  posted on the public way  leading into



            the  town dump  read  "MOTORCYCLE TRACK  ONLY[.]   ALL  OTHER



            VEHICLES  TRESPASSING .  . .  [ILLEGIBLE] .  .  . USE  AT OWN



            RISK."  Adjacent to the town dump is the Clapps  Pond area of


-3-
                                          3



the Seashore which has  been closed to public  motor vehicles



            for several decades.   There  are only four  points of  entry



            along the boundary of Clapps Pond, all of which are barred by



            cable gates.  The  accident occurred at the West  Clapps Pond



            Road  point of entry which is located on the boundary between



            the town dump and Clapps Pond.  No Park Service warning signs



            were visible in the vicinity of this cable gate.



                      It  was general knowledge  that motorcyclists using



            the town  dump frequently crossed  into the Seashore  via the



            West  Clapps  Pond Road  entrance  way.   During  plaintiff's



            motorcycle  excursion, he  proceeded approximately  250 yards



            into the Seashore along West Clapps Pond Road before making a



            right-hand  turn into a dead-end intersection.  As soon as he



            rounded  the bend,  plaintiff  briefly  glimpsed an  unmarked



            cable gate  across his path.  The  cable gate was not clearly



            visible because the dull gray color of the cable blended into



            the  surrounding foliage.  There were no warning signs at the



            side of  the gate or  on the cable  itself.  Unable  to stop,



            plaintiff collided with  the cable  and was  thrown from  his



            motorcycle.  As a result, plaintiff suffered serious injuries



            to his  neck and  back and  was forced to  crawl to  a nearby



            highway for assistance.



                      The Park Service was first notified  of plaintiff's



            injuries  on September 17, 1992, when it received a claim for



            injuries filed by plaintiff's  attorney pursuant to 28 U.S.C.


-4-
                                          4



2675.   Since  1968  and  prior  to  receiving  notice  of



            plaintiff's injuries,  the  Park Service  had never  received



            reports of injuries resulting from any motor vehicle accident



            caused  by the  cable gates.   Plaintiff's claim  was denied.



            Plaintiff  then  filed a  timely  complaint  in the  district



            court.  



                                  II. APPLICABLE LAW
                                  II. APPLICABLE LAW
                                      ______________



                      Under  the  Federal  Tort  Claims Act,  the  United



            States  shall be liable  in a tort claim  "in the same manner



            and to the  same extent  as a private  individual under  like



            circumstances."  28 U.S.C.   2674.   In such tort claims, the



            United States "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).   See United States v. Varig
                                               ___ _____________    _____



            Airlines,  467  U.S. 797,  807-808  (1984);  Athas v.  United
            ________                                     _____     ______



            States,  904  F.2d  79, 80  (1st  Cir.  1990).   Because  all
            ______



            relevant  acts or  omissions upon  which plaintiff  bases his



            claim occurred in Massachusetts,  the law of the Commonwealth



            applies.



                      Massachusetts  limits  the liability  of landowners



            who  open their  property free  of charge  to the  public for



            recreational  purposes.    At  the time  of  the  plaintiff's



            injuries,   the  governing   section  of   the  Massachusetts



            Recreational  Use Statute, Mass. Gen. Laws Ann. ch. 21,   17C



            (West 1994), read as follows:


-5-
                                          5



An  owner  of land  who  permits the

                      public to use  such land for recreational

                      purposes without imposing a charge or fee

                      therefor, .  . .  shall not be  liable to

                      any member  of the public  who uses  said

                      land  for  the  aforesaid   purposes  for

                      injuries to person or  property sustained

                      by him while on  said land in the absence

                      of wilful, wanton or reckless  conduct by
                         ___________________________________

                      such  owner, nor shall such permission be

                      deemed to confer upon any person so using

                      said  land the  status  of an  invitee or

                      licensee to  whom any duty would  be owed

                      by said owner.



            (Emphasis added).   The policy underlying  the statute is  to



            encourage landowners  to open  up their land  to recreational



            users by immunizing them  from potential negligence liability



            resulting from such invitations.  



                      The  Massachusetts  Supreme Judicial  Court defines



            wilful, wanton, or reckless conduct as: "intentional conduct,



            by way either of commission  or of omission where there is  a



            duty  to  act,  which  conduct  involves  a  high  degree  of



            likelihood  that substantial  harm will  result to  another."



            Manning  v. Nobile, 582 N.E.2d  942, 946 (Mass.  1991).  "Our
            _______     ______



            recent practice has been simply  to refer to reckless conduct



            as constituting the conduct  that produces liability for what



            the  court  has  traditionally  called  wilful,  wanton,   or



            reckless conduct."  Sandler  v. Commonwealth, 644 N.E.2d 641,
                                _______     ____________



            643 (Mass. 1995).



                      The facts in Sandler  are pertinent to the  case at
                                   _______



            bar.   Plaintiff  was injured  when he  fell off  his bicycle



            while attempting to go through  a tunnel which was part of  a


-6-
                                          6



bikeway along the Charles River.   The bikeway was controlled



            and maintained by the Commonwealth.  The court found that the



            jury  was  warranted in  finding  that  plaintiff's fall  was



            caused  by an uncovered drain which was eight inches wide and



            one foot in  length.  The drain, which was about eight inches



            deep,  had  a  cover but  it  had  been  removed by  vandals.



            Vandals  had   also  rendered   the  lights  in   the  tunnel



            inoperative.  Id. at 642-43.
                          ___



                      There was evidence that the MDC (state agency) knew



            of the dangers  but did  not respond reasonably.   There  was



            also  evidence that it was feasible, at a reasonable cost, to



            install  vandal-resistant  lighting  and   irremovable  drain



            covers.   The court held:   "Nevertheless, the  degree of the



            risk of injury  in this case does not meet  the standard that



            we have established for recklessness."  Id. at 644. 
                                                    ___



                       Massachusetts  courts apply a  two prong test when



            distinguishing  "reckless conduct"  from negligence.   First,



            the  defendant must  intentionally disregard  an unreasonable



            risk, and second, the risk, viewed prospectively, must entail



            a  "high degree  of probability  that substantial  harm would



            result"  to  the plaintiff.    Sandler  v. Commonwealth,  644
                                           _______     ____________



            N.E.2d at 643; Manning v. Nobile, 582 N.E.2d at 946.  
                           _______    ______



                      Plaintiff argues that Inferrera v. Town of Sudbury,
                                            _________    _______________



            575 N.E.2d 82 (Mass. App. Ct. 1991), supports  his contention



            that the actions  of the Park  Service amounted to  "reckless


-7-
                                          7



conduct."  In Inferrera, a snowmobiler died as a result of an
                          _________



            accident that  occurred when  his snowmobile collided  with a



            steel cable strung  across a path leading into a  field.  The



            Massachusetts  Appeals Court reversed the trial court's grant



            of  summary judgment  for the  defendants after  finding that



            inferences existed  which a reasonable juror  might draw upon



            to  determine  that stringing  a  cable  across  a  path  was



            reckless.  The Massachusetts Appeals Court ruled that an 



                      actor's conduct is in  reckless disregard

                      of the  safety of  another if he  does an

                      act  . .  . knowing  or having  reason to

                      know   of  facts   which  would   lead  a

                      reasonable man to realize, not  only that

                      his conduct creates an  unreasonable risk

                      of  physical harm  to  another, but  also

                      that such risk  is substantially  greater

                      than that which is  necessary to make his

                      conduct negligent.



            Id. at 85.  
            __



                      Although Inferrera is superficially similar  to the
                               _________



            one at  hand, it  is readily  distinguishable.   One critical



            distinction  involves the  actual installation  of the  cable



            gate.  The defendant in Inferrera intended to and did install
                                    _________



            the  cable gate without marking  it.  The  court in Inferrera
                                                                _________



            noted that the defendant "had not ordered anything to be hung



            on the  cable to make  it 'more visible.'"   Id. at 84.   The
                                                         __



            Park  Service,  on the  other  hand,  implemented a  practice



            spanning   several  decades   of  inspecting,   marking,  and



            repairing the cable gates.   There is no indication  that the



            Park Service intentionally  disregarded the cable gate  risk.


-8-
                                          8



Another important distinction  involves the  manner in  which



            the cable gates were set up.  The cable gate in Inferrera was
                                                            _________



            installed haphazardly in a makeshift arrangement between  two



            trees.  In  the case at  bar, the cable gates  were installed



            between carefully placed posts in accordance with a specially



            laid out road-access plan.  Finally, in Inferrera,  the cable
                                                    _________



            gate was the only one installed by the Town, and there was no



            notice by the Town of  the installation of the gate.   In the



            case  before  us,  the  cable  gates  of  the  Seashore  were



            installed  throughout the  park  several  decades  beforehand



            according to a carefully laid out plan, thus engendering some



            awareness that  the Park Service  had installed a  cable gate



            system.   In fact, plaintiff  concedes that he  knew that the



            Park  Service had  cable gates  set up  within the  Seashore.



            Based  on  these important  distinctions,  we  find that  the



            ruling of Inferrera  does not extend  to the situation  here.
                      _________



            We have considered all of  the contentions made by  plaintiff



            and find them unavailing.



                                   III.  CONCLUSION
                                   III.  CONCLUSION
                                         __________



                      Based upon our review  of the Massachusetts statute



            and  the cases  interpreting it,  we find  that there  was no



            reckless conduct  by the  employees of the  Seashore National



            Park.   The  judgment of  the district  court is,  therefore,



            affirmed.  No costs.
            affirmed.  No costs.
            _________  _________


-9-
                                          9