Opinion
1:01cv217-C
July 15, 2002
MEMORANDUM OF DECISION
THIS MATTER is before the court upon defendant's Motion for Summary Judgment and in accordance with 28, United States Code, Section 636(c). Defendant filed its motion and supporting brief on June 6, 2002, making plaintiffs' response due June 24, 2002. Having considered defendant's motion and reviewed the pleadings, the court enters the following findings of fact, conclusions of law, and decision.
FINDINGS AND CONCLUSIONS
I. Background
On June 26, 1998, plaintiff Joan B. Johnston ("Mrs. Johnston") fell while descending a native-stone stairway that leads from a public parking area to Looking Glass Falls, a recreational area of the Pisgah National Forest. The defendant charges no user fee for that area.
According to Mrs. Johnston's testimony, she was descending the stairs to watch and attend to the activities of her grandchildren, but was not watching where she was stepping. On approximately the forty-fifth stair, she stepped on some vegetation that was concealing a hole on the side of the stairway. As a result of stepping into the hole, she fell and broke her ankle.
Plaintiffs bring this action, contending that defendant was negligent in its maintenance of the stairwell and that the hole proximity caused Mrs. Johnston's injury. Defendant has moved for summary judgment, contending that plaintiffs have failed to state a cause of action as a matter of law and that, even if they had, such as claim would be barred by Mrs. Johnston's contributory negligence.
II. Summary Judgment Standard
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). By reviewing substantive law, the court may determine what matters constitute material facts. Id. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).
Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of defendant's Motion for Summary Judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
In this case, plaintiffs have not satisfied their burden, inasmuch as no responsive brief has been filed within the time provided. L.R. 7.1(B) (W.D.N.C.) The court, however, has reviewed all the factual allegations and resolved all inferences in a light most favorable to plaintiffs, as reflected above. In addition, the court has closely considered the arguments of law. For the reasons briefly discussed below, it appears that plaintiffs have failed to state a claim as a matter of well-settled law and that summary judgment is appropriate.
III. Discussion
The United States is immune from suit unless it consents to be sued. United States v. Dalm, 494 U.S. 596 (1990). The court's jurisdiction over suits against the United States are defined by such consent. Id. Not only does the consent govern what claims may be brought, it also provides parameters concerning what law will be applicable. See generally United States v. Orleans, 425 U.S. 807, 814 (1976); Dalehite v. United States, 346 U.S. 15 (1953).
The Federal Torts Claims Act ("FTCA") is the United States' waiver of sovereign immunity for negligence of federal employees. Norton v. United States, 581 F.2d 390 (4th Cir.), cert. denied, 439 U.S. 1003 (1978). In waiving sovereign immunity for employee negligence, the FTCA provides that the United States submits to suit only where the "law of the place" would hold a private person liable in similar circumstances. 28 U.S.C. § 1346(b). Inasmuch as the situs of the accident was within the bounds of this district, the substantive law of the State of North Carolina governs resolution of plaintiffs' tort claim.
To encourage free recreational use, the State of North Carolina has enacted a "recreational use statute," which protects both public and private landowners from liability based on negligence where they make their land available to the public free of charge. N.C. Gen. Stat. § 38A-4. While Mrs. Johnston was not, in the traditional sense, a trespasser, the statute treats recreational users as "trespassers" for determining the duty owed to the recreational user by the landowner, which is the minimal duty to "refrain from the willful or wanton infliction of injury." Nelson v. Freeland, 349 N.C. 615, 618 (1998) (citation omitted). A higher duty of care is only owed to "direct invitees," which is the duty to inform such users of artificial or unusual hazards of which the owner has actual knowledge. Id.
It is clear that Mrs. Johnston was an indirect invitee of defendant. The record is undisputed that she was charged no fee, and her own testimony reveals that no employee of defendant invited her to descend the stairs. She also testified that she utilized the recreation area on her own volition. In such circumstances, it is plaintiffs' burden to allege and come forward with evidence of reckless indifference or willful or wanton infliction of injury. The court can find no such allegations or evidence of record. The Court of Appeals for the Fourth Circuit recently held, in applying North Carolina's recreational use statute, that
no case in North Carolina . . . holds that the passive conduct of a landowner is deemed to be an act performed "intentionally with a reckless indifference to the injuries likely to result."
Fesmire v. United States, 2001 W.L. 558138 (4th Cir. 2001) (see copy of unpublished opinion at docket entry 19, ex. 6).
Even if the court were to assume, arguendo, that Mrs. Johnston was a direct invitee and that the higher standard of care, i.e., "to inform the user of artificial or unusual hazards of which the owner has actual knowledge," was applicable, there is no allegation or proffer of proof that defendant had actual knowledge of the hidden danger. The evidence of record, consisting of affidavits from the district ranger and a forest service technician, indicate that they had no knowledge of any hidden, artificial, or unusual dangers on the Looking Glass Falls stairway at the time of Mrs. Johnston's accident.
Defendant has made a persuasive anticipatory argument that signage directing the public to a recreation area could not be construed as making Mrs. Johnston a direct invitee. Defendant argues that the state statute must be given its plain meaning and that to construe signs in a manner that would support application of the higher standard would defeat the stated purpose of the statute, which is to "encourage owners of land to make land and water areas available to the public at no cost . . . by limiting to liability of the landowner. . . ." N.C. Gen. Stat. § 38A-1.
The court has also considered defendant's supplemental arguments concerning contributory negligence. As is made clear by Mrs. Johnston's testimony, she failed to watch where she was stepping or use the handrail, which is especially negligent where, as the defendant has shown, the stairs were uneven native stones in an outdoor recreational area. As a matter of North Carolina law, Mrs. Johnston's own negligence would preclude her claim, even if it were not barred by the state's recreational use statute. See Branks v. Kern, 320 N.C. 621, 624 (1987); Privette v. Wilkes Gen. Hosp., 37 N.C. App. 425 (1978).
As to plaintiff Karl E. Johnston, his claim of loss of consortium is derivative and will also be dismissed.
Having considered plaintiffs' complaint and defendant's memorandum of law in support of its motion, and it appearing that no genuine issues of material fact remain for trial and that this matter may be resolved as a matter of law, the court will grant defendant's Motion for Summary Judgment and dismiss this action with prejudice. A judgment reflecting this decision is entered simultaneously herewith.