[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]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
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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
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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.
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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:
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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
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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
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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.
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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.
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