F I L E D
United States Court of Appeals
Tenth Circuit
MAY 31 2000
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
FRANK H. FEICHKO, JR.,
Plaintiff-Appellant,
v.
No. 98-4154
DENVER & RIO GRANDE WESTERN
RAILROAD COMPANY; THE SOUTHERN
PACIFIC TRANSPORTATION COMPANY, a
Delaware corporation,
Defendants-Appellees,
Appeal from the United States District Court
for the District of Utah
(D.C. No. 95-CV-1068)
John J. Rossi of Rossi, Cox, Kiker & Inderwish, Aurora, Colorado (Janet
Stansberry Drake of Rossi, Cox, Kiker & Inderwish, Aurora, Colorado; and
Richard I. Ashton of Ashton, Braunberger & Boud, Sandy, Utah, with him on the
briefs), for Plaintiff-Appellant.
Casey K. McGarvey (E. Scott Savage with him on the briefs) of Berman, Gaufin,
Tomsic, Savage & Campbell, Salt Lake City, Utah, for Defendants-Appellees.
Before SEYMOUR, Chief Judge, BRORBY and EBEL, Circuit Judges.
SEYMOUR, Chief Judge.
Frank H. Feichko originally brought this action in state court against his
employer, the Denver & Rio Grande Western Railroad (D&RGW), and the
Southern Pacific Transportation Company (SP) for injuries he sustained while he
was standing in a parked D&RGW locomotive that was struck by a moving SP
locomotive. Mr. Feichko asserted three claims against each defendant, seeking
damages under the Federal Employer’s Liability Act (FELA), 45 U.S.C. §§ 51 et
seq., the Boiler Inspection Act (BIA), 45 U.S.C. §§ 23 et seq., 1 and common law
negligence.
Defendants removed the case to federal district court and moved for partial
summary judgment. Mr. Feichko moved to remand on the ground that the first
two claims were not removable under 28 U.S.C. § 1445(a), which prohibits the
removal of FELA claims filed in state court. The district court dismissed the
FELA and BIA claims against D&RGW and all claims against SP as a matter of
law, and then denied the motion to remand. 2 After extended discovery, the court
granted D&RGW’s motion for summary judgment on the remaining common law
1
The events giving rise to this lawsuit took place in January 1993.
Subsequently, the BIA was repealed and recodified without substantive change as
49 U.S.C. § 20701. See Pub.L. No. 103-272, 108 Stat. 745 (1994). This opinion
will refer to the BIA as it was codified in 1993.
2
The district court granted summary judgment for SP on the ground that
Mr. Feichko was not an employee of SP. Mr. Feichko does not challenge this
ruling on appeal and therefore we do not address it. Thus, only D&RGW is
properly before this court as an appellee.
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negligence claim. See Feichko v. Denver & Rio Grande Western R.R., 13 F.
Supp.2d 1212 (D. Utah 1998). Mr. Feichko appeals and we affirm.
I
In January of 1993 Mr. Feichko, a locomotive engineer for D&RGW, came
to the D&RGW property on his day off to look for a checkbook he thought he
might have left there during the previous day’s shift. He was directed to two
D&RGW workmen who were cleaning locomotives. They told him they had not
seen the checkbook and suggested he look in the parked engines. Mr. Feichko did
so. While he was on board one of the parked engines, a moving locomotive
collided with it, knocking him into the control stand and console and causing him
serious injuries. The moving engine was owned by SP and operated by D&RGW
employees at the time of the accident.
Mr. Feichko sought recovery under the FELA, contending that his employer
breached its statutory duty to provide him a reasonably safe place to work, safe
equipment, and safe procedures. He also claimed under the BIA for breach of the
statutory duty to maintain the brakes of the moving locomotive in a safe
condition. Finally, Mr. Feichko asserted claims of common law negligence,
alleging that defendants violated their statutory duties under the above acts and
were negligent in their operation of the moving locomotive and in failing to warn
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him that the collision was imminent.
Defendants removed the case to federal district court under 28 U.S.C. §
1441(b), which provides for the removal of cases where the federal court has
original jurisdiction on the basis of diversity of citizenship. 3 Mr. Feichko moved
to remand the action to state court, arguing that it was not removable under 28
U.S.C. § 1445(a), which provides that “[a] civil action in any State court against a
railroad or its receivers or trustees, arising under [the FELA] may not be removed
to any district court of the United States.” Id. 4
The federal district court determined that Mr. Feichko had failed to
establish the elements of a claim under either the FELA or the BIA and that he
had failed to show he was an employee of SP. The court then ruled that since
neither the FELA nor the BIA claims could stand, those claims need not be
remanded. The court further held that the common law negligence claim was
properly removed and was not subject to remand. In a subsequent ruling, the
3
Section 1441(b) provides that when original federal jurisdiction is based
on diversity of citizenship, the action is “removable only if none of the parties in
interest properly joined and served as defendants is a citizen of the State in which
such action is brought.” Mr. Feichko was a citizen of Utah. Defendant D&RGW
was a Delaware corporation with its principle place of business in Colorado, and
SP was a Delaware corporation with its principle place of business in California.
The requirements for removal under section 1441(b) were thus met.
4
The BIA does not create an independent cause of action for personal
injuries, and such an action must therefore be brought pursuant to the FELA. See
Urie v. Thompson, 337 U.S. 163, 188-89 & n.30 (1949); O’Loughlin v. National
R.R. Passenger Corp., 928 F.2d 24, 26 n.3 (1st Cir. 1991).
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court granted summary judgment for D&RGW on Mr. Feichko’s negligence claim,
concluding that D&RGW owed him no duty under the circumstances.
On apeal, Mr. Feichko contends that material issues of fact exist regarding
whether his claim falls within the scope of the federal statutes, and that the
district court improperly decided disputed issues of fact in granting summary
judgment on his common law negligence claim. Although Mr. Feichko did not
raise the denial of his motion to remand, we were concerned that the matter might
present a question of subject matter jurisdiction. We therefore directed the
parties to submit supplemental briefing on whether this case was properly
removed in view of section 1445(a) and, if not, whether we have subject matter
jurisdiction to consider the case. As discussed below, we are satisfied that federal
subject matter jurisdiction is present. Moreover, our review of the merits
persuades us the district court’s disposition was correct.
II
The district court addressed Mr. Feichko’s motion to remand together with
defendants’ motion for summary judgment. The court granted the defendants
partial summary judgment, concluding on the undisputed facts that Mr. Feichko
was not acting within the scope of his employment at the time of his injuries and
that his claims under the FELA and the BIA were therefore not sustainable as a
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matter of law. The court also denied the motion to remand, notwithstanding
section 1445(a), based on its ruling that neither statutory claim could stand.
In his supplemental brief, Mr. Feichko contends the court erred in reaching
the merits because removal of a FELA case is barred by section 1445(a).
Defendants maintain that denial of the motion to remand was proper under these
circumstances, pointing to cases holding that such a denial is permissible when
the district court determines that the plaintiff’s claims are baseless in law and
fact. See Yawn v. Southern Ry., 591 F.2d 312 (5th Cir. 1979); Aldredge v.
Baltimore & Ohio R.R., 20 F.2d 655 (8th Cir. 1927). These holdings are premised
on the notion that a defendant seeking removal may “pierce the pleadings” of a
lawsuit asserting claims that are ostensibly barred by section 1445(a) to show that
the claims have been fraudulently pled to avoid removal. Burchett v. Cargill,
Inc., 48 F.3d 173, 175-76 (5th Cir. 1995) (reviewing action under Jones Act,
which incorporates provisions of FELA, including section 1445(a) removal bar).
Courts applying this exception to section 1445(a), however, have recognized the
tension between a defendant’s right to demonstrate the baseless nature of a claim
and a plaintiff’s right to choose a state court forum. See Lackey v. Atlantic
Richfield Co., 990 F.2d 202, 207-08 (5th Cir. 1993) (holding district court should
have remanded case because defendants failed to meet burden of demonstrating
that Jones Act claim was “undisputedly false”); see also Burchett, 48 F.3d at 176
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(cautioning against pretrying a case to determine removal jurisdiction). These
courts have not always drawn a bright line between assessing whether a statutory
claim is so legally baseless as to constitute a fraudulent attempt to prevent
removal and assessing whether the plaintiff has merely failed to state a claim, a
determination otherwise committed to the state courts.
We acknowledged in Chacon v. Atchison, Topeka & Santa Fe Ry., 320 F.2d
331 (10th Cir. 1963), that a fraudulent attempt to evade removal may provide an
exception to the operation of section 1445(a), but we concluded that the exception
did not apply in that case.
[I]t is settled law that a civil action brought in a state court of
competent jurisdiction against a railroad company subject to the act
to recover damages for personal injuries is not open to removal to the
district court of the United States solely on the ground of diversity of
citizenship. And in the absence of any issue of a fraudulent attempt
to evade removal, the question whether an action instituted in the
state court is one under the act is to be determined by reference to the
allegations contained in complaint or petition, as the case may be.
Id. at 332 (citations omitted). We need not decide here whether the district court
improperly resolved the merits of a claim committed to the state courts instead of
remanding the matter. As we discuss below, we hold that a removal barred by
section 1445(a) does not in these circumstances present a matter of subject matter
jurisdiction. The issue of improper removal was therefore waived by Mr.
Feichko’s failure to raise it on appeal.
We have held as a general matter that
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where a suit of which the United States Court may entertain original
jurisdiction is instituted in the state court and the defendant obtains
its removal, even though the removal is irregular, defective, or
unauthorized, and plaintiff acquiesces in such removal by seeking
relief from the United States Court, that court acquires jurisdiction of
the subject matter.
American Oil Co. v. McMullin, 433 F.2d 1091, 1094 (10th Cir. 1970) (quoting
Parks v. Montgomery Ward & Co., 198 F.2d 772, 774 (10th Cir. 1952)); see also
Donahue v. Warner Bros. Pictures, Inc., 194 F.2d 6, 10 (10th Cir. 1952) (when
suit over which federal district court would have original jurisdiction is brought
in state court and defendant obtains wholly unauthorized removal, federal court
acquires jurisdiction when plaintiff acquiesces by seeking relief from federal
court); Lopata v. Handler, 121 F.2d 938, 940 (10th Cir. 1941) (same). Although
these cases are not of recent vintage, current authority indicates they are still good
law and are applicable here.
The Supreme Court has addressed similar factual circumstances in several
opinions. In the most recent of these, a case originally filed in state court
asserting personal injury claims under state law was removed to federal court at a
time when complete diversity of citizenship did not exist. See Caterpillar Inc. v.
Lewis, 519 U.S. 61 (1996). A prompt remand motion was denied, the nondiverse
parties were thereafter dismissed, and the case proceeded to trial and judgment.
The appellate court vacated the judgment, concluding that, absent complete
diversity at the time of removal, the district court lacked subject matter
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jurisdiction.
The Supreme Court reversed, holding that “a district court’s error in failing
to remand a case improperly removed is not fatal to the ensuing adjudication if
federal jurisdictional requirements are met at the time judgment is entered.” Id. at
471. The Court recognized that “the statutory flaw” caused by the defendant’s
failure to meet the requirements for removal remained in the history of the case
even though complete diversity was subsequently obtained and subject matter
jurisdiction was therefore established before trial commenced. Id. at 475. The
Court concluded, however, that adherence to the rules Congress prescribed to
preserve a plaintiff’s choice of forum was outweighed by “considerations of
finality, efficiency, and economy.” Id. at 476.
In this case . . . no jurisdictional defect lingered through judgment in
the District Court. To wipe out the adjudication postjudgment, and
return to state court a case now satisfying all federal jurisdictional
requirements, would impose an exorbitant cost on our dual court
system, a cost incompatible with the fair and unprotracted
administration of justice.
Id. at 477.
We note that in Caterpillar, unlike the instant case, the plaintiff raised the
propriety of removal on appeal and argued that he had done all he could to
preserve the choice of forum provided him by federal statute. The Court
nonetheless felt that these considerations were overcome by the fact that the court
had subject matter jurisdiction at the time of judgment, and by concern for
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judicial economy. We believe the same balance should be struck here,
particularly in view of the fact that Mr. Feichko did not renew his challenge to
removal on appeal and instead sought relief from the district court rulings in this
court.
The Court in Caterpillar discussed two earlier cases, Grubbs v. General
Elec. Credit Corp., 405 U.S. 699 (1972) and American Fire & Cas. Co. v. Finn,
341 U.S. 6 (1951). The Court found these cases helpful and they likewise shed
light on our inquiry. In Grubbs, although the plaintiff did not move to remand,
the Court of Appeals sua sponte concluded that the removal was not authorized by
statute and that the case should therefore be remanded to the state court in which
it had originated. The Supreme Court disagreed and concluded that so long as the
district court had jurisdiction at the time it entered judgment, the validity of the
removal procedure could not be raised for the first time on appeal. See Grubbs,
405 U.S. at 700.
Longstanding decisions of this Court make clear . . . that
where after removal a case is tried on the merits without objection
and the federal court enters judgment, the issue in subsequent
proceedings on appeal is not whether the case was properly removed,
but whether the federal district court would have had original
jurisdiction of the case had it been filed in that court.
Id. at 702.
In Finn, 341 U.S. 6, the Court similarly referred in dicta to prior cases
decided by it and by circuit courts
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which uphold judgments in the district courts even though there was
no right to removal. In those cases the federal trial court would have
had original jurisdiction of the controversy had it been brought in the
federal court in the posture it had at the time of the actual trial of the
cause or of the entry of the judgment. That is, if the litigation had
been initiated in the federal court on the issues and between the
parties that comprised the case at the time of trial or judgment, the
federal court would have had cognizance of the case. This
circumstance was relied upon as the foundation of the holdings.
Id. at 16-17 (footnote omitted).
In our view, Caterpillar, Grubbs, and Finn all indicate that removal in
violation of a statutory provision does not deprive a federal district court of
subject matter jurisdiction so long as the court would have had original
jurisdiction over the case had it been filed there in the first instance. See
Belcufine v. Aloe, 112 F.3d 633, 638 (3d Cir. 1997) (relying on Grubbs and
Caterpillar in holding that removal in violation of statute is not jurisdictional and
therefore waivable when cause of action could have been brought originally in
federal court); Barbara v. New York Stock Exch. Inc., 99 F.3d 49, 55-56 (2d Cir.
1996) (relying on Grubbs and Finn for same proposition). Indeed, two other
circuits have expressly held that a removal in violation of section 1445(a) is a
waivable non-jurisdictional defect when the federal court could have exercised
subject matter jurisdiction had the case originally been brought there. See Lirette
v. N.L. Sperry Sun, Inc., 820 F.2d 116 (5th Cir. 1987) (en banc); Carpenter v.
Baltimore & Ohio R.R., 109 F.2d 375, 379-80 (6th Cir. 1940).
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In line with the authorities cited above, we likewise hold that removal in
violation of section 1445(a) may be waived by a plaintiff, either by a failure to
move the district court to remand, as was the case in Grubbs, or by a failure to
raise the matter on appeal, as in the instant case, so long as the district court
would have had jurisdiction had the case originally been filed there. Accordingly,
we have jurisdiction over this appeal.
III
The district court granted defendants’ motion for summary judgment on the
statutory claims, concluding as a matter of law that Mr. Feichko had not made the
requisite showing that his injuries occurred while he was acting within the scope
of his employment or in furtherance of the railroad’s interests. On appeal, Mr.
Feichko argues that the FELA constitutes broad remedial legislation which the
district court failed to construe liberally, and that whether the accident occurred
within the scope of his employment is a disputed fact issue that should be decided
by a jury.
The FELA provides a remedy for
any person suffering injury while he is employed by [a common
carrier by railroad] in [interstate] commerce . . . for such injury . . .
resulting in whole or in part from the negligence of any of the
officers, agents, or employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence, in its cars, engines, . . .
or other equipment.
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45 U.S.C. § 51. Recovery under the FELA is thus permitted only if the
employee’s injury occurred while he was employed by the railroad, which in turn
requires a showing that “the plaintiff was injured in the scope of his
employment.” Smith v. Medical & Surgical Clinic Ass’n, 118 F.3d 416, 419 (5th
Cir. 1997). Railroad employment has been broadly interpreted to extend not only
to acts required by the employer, but also to those acts necessarily incidental to
the employment. See, e.g., Rostocki v. Consolidated Rail Corp., 19 F.3d 104, 106
(2d Cir. 1994) (FELA covers injuries suffered during activities necessarily
incidental to employment); Wilson v. Chicago, Milwaukee, St. Paul, & Pac. R.R.,
841 F.2d 1347, 1355 (7th Cir. 1988) (act could be within scope of employment if
a necessary incident of the day’s work).
This circuit and others have nevertheless held that even “given its most
liberal interpretation, the Act cannot be extended to cover activities not
necessarily incident to or an integral part of employment in interstate commerce.
It obviously does not cover activities undertaken by an employee for a private
purpose and having no causal relationship with his employment.” Atchison,
Topeka & Santa Fe Ry. v. Wottle, 193 F.2d 628, 630 (10th Cir. 1952); see also
Smith, 118 F.3d at 419 (citing Wottle); Rostocki, 19 F.3d at 106 (same); Wilson,
841 F.2d at 1355 (same). The district court here applied Wottle and concluded
that Mr. Feichko “was not acting within the scope of his employment pursuant to
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any duties or in furtherance of the railroad’s interest when the injuries were
sustained.” Aplt. App. at 97. The court held that Mr. Feichko’s search for his
missing checkbook was an activity with a private purpose having no causal
relationship with his employment, that the search was not done under the
direction and authority of the employer, and that the employer could not have
reasonably foreseen the search and did not benefit from it.
Mr. Feichko contends the district court erred in making this determination
as a matter of law, asserting that the question must be decided on its particular
facts and citing cases in which the issue was presented to the jury. The cases Mr.
Feichko cites are all distinguishable because they contain factual disputes
material to the issue of whether the activity resulting in the injury was for a
purely private purpose or was incidental to the plaintiff’s employment. Here the
material facts are not disputed. They reveal that Mr. Feichko was pursuing a
purely private activity which was not incidental to his employment and which
provided no benefit to his employer. 5 Accordingly, the district court properly
5
Mr. Feichko asserts for the first time on appeal that he had been called to
work on the day of the accident and was on the railroad’s property in response to
that call. In support of this assertion, he offers a statement he made in a
deposition taken almost ten months after the court granted summary judgment to
defendants on the FELA and BIA claims. Mr. Feichko’s argument is
unacceptable. First, the argument and evidence were not before the district court
at the time it ruled on the summary judgment motion. In reviewing a grant of
summary judgment, our inquiry is limited to the summary judgment record before
(continued...)
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granted summary judgment to defendants on the statutory claims. 6
In a subsequent ruling, the district court granted summary judgment for
D&RGW on Mr. Feichko’s common law negligence claim, holding that Mr.
Feichko was a licensee under Utah law and that the railroad owed him no duty
under the circumstances. See Feichko, 13 F. Supp.2d at 1214-15. The court
pointed out that Utah has adopted the R ESTATEMENT (S ECOND ) OF T ORTS § 341
(1965), under which a landowner owes no duty of care to a licensee who knows
the nature of the activities conducted on the land and the manner in which they
are conducted. Id. at 1214 (quoting § 341 cmt. a). The court concluded as a
matter of law that Mr. Feichko, as an experienced railroad engineer, had the
requisite knowledge, and rejected his argument that he did not assume the risk
5
(...continued)
the district court when the motion was decided. See Allen v. Minnstar, Inc., 8
F.3d 1470, 1475 & n. 4 (10th Cir. 1993) (citing cases). We reject Mr. Feichko’s
contention that we should make an exception to this rule in the interest of
preventing injustice. He has offered no explanation for his failure to present this
evidence to the district court by way of affidavit in response to defendants’
motion for summary judgment. Moreover, the deposition statement is ambiguous
as to whether Mr. Feichko was in fact called to work on Sunday, the day before
the accident, or on Monday, the day of the accident. Under these circumstances,
we see no reason to depart from our caselaw by considering this newly offered
evidence in assessing the propriety of the summary judgment granted on the
statutory claims.
6
Because the BIA is considered in substance an amendment to the FELA
and enforced under that Act, see Urie v. Thompson, 337 U.S. 163, 188-89 (1949),
Mr. Feichko’s failure to establish that he was acting within the scope of his
employment at the time of the accident is dispositive of his claim under both
statutes.
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that the railroad would conduct its activities negligently. The court held that
adopting Mr. Feichko’s construction of the landowner’s duty to a licensee “would
effectively eliminate the traditional rules limiting recovery on the part of such
licensees by applying a negligence standard any time negligence might have
occurred.” Id. at 1215.
Mr. Feichko asserts that the district court erred by assuming the extent of
his knowledge and by in effect ruling that he should have anticipated the
negligent conduct of the railroad. We disagree. The Utah courts have followed
the R ESTATEMENT (S ECOND ) OF T ORTS , under which a property owner’s duty to a
person injured on his property is determined by that person’s status on the
property as either an invitee, a licensee, or a trespasser. See Pratt v. Mitchell
Hollow Irrigation Co., 813 P.2d 1169, 1172 (Utah 1991); Tjas v. Proctor, 591
P.2d 438, 441 (Utah 1979). Mr. Feichko does not dispute the fact that his status
at the time of his injury was that of a licensee. Section 341 of the Restatement
governs the liability of a landowner to a licensee for activities conducted on the
land and provides:
A possessor of land is subject to liability to his licensees for physical
harm caused to them by his failure to carry on his activities with
reasonable care for their safety if, but only if,
(a) he should expect that they will not discover or realize the
danger, and
(b) they do not know or have reason to know of the possessor’s
activities and of the risk involved.
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R ESTATEMENT (S ECOND ) OF T ORTS § 341.
The comments to that section provide additional guidance on its
application, stating:
If a [licensee] knows of the nature of the activities conducted upon
the land and the manner in which they are conducted, he has all that
he is entitled to expect, that is, an opportunity for an intelligent
choice as to whether or not the advantage to be gained by coming on
the land is sufficient to justify him in incurring the risks involved.
Id. cmt. a. Significantly, the commentary further provides:
The possessor, therefore, is not required either to refrain from or to
give warning of activities dangerous to the licensee if they are, to the
knowledge of the licensee, so customarily carried on upon the land
that the licensee should be on the alert to discover and avoid them.
Id. cmt. d.
It is undisputed that Mr. Feichko was an experienced railroad engineer who
knew the activities customarily carried on in a railroad yard and the risks those
activities presented. Indeed, the D&RGW safety rules and Mr. Feichko’s own
statements establish that he knew collisions such as the one at issue here regularly
occur in the course of railroading activity. 7 We agree with the district court that
7
In a statement recorded after the accident, Mr. Feichko admitted that he
had been involved in other impacts during his railroad career. See Aplt. App. at
52. He further stated by deposition that he had seen collisions that had knocked
windows open, water off water coolers, and cars onto the ground. See id. at 152.
He also testified that he had been involved in situations in which he had applied
the brakes in a locomotive and the engine had slid, and that he had been on an
engine that slid in the cold snow as had apparently happened in the accident at
(continued...)
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Mr. Feichko’s argument would, contrary to the express language of the
Restatement and its commentary, render a landowner liable to a licensee for
negligence despite the licensee’s knowledge of the nature of the landowner’s
activity and the risk involved. 8 Section 341 and its commentary clearly provide
that a landowner owes no duty to a licensee to conduct his activities with
reasonable care if the licensee knows the nature of those activities and the risks
involved. Accordingly, we conclude that summary judgment was properly granted
against Mr. Feichko on his common law negligence claim.
In sum, we AFFIRM the judgment of the district court.
7
(...continued)
issue. See id. at 158-61.
8
Mr. Feichko cites numerous cases in support of his argument, all of which
are factually distinguishable. His reliance on Kurn v. Stanfield, 111 F.2d 469 (8th
Cir. 1940), is misplaced. There the plaintiff brought an action under the FELA
for injuries he sustained while acting as an employee. The case thus says nothing
about a railroad’s duty to a licensee. Marchello v. Denver & Western Rio Grande
R.R., 576 F.2d 262 (10th Cir. 1978), and Madison v. Deseret Livestock Co., 574
F.2d 1027 (10th Cir. 1978), are likewise inapposite as both considered the
application of section 342 of the Restatement, which addresses dangerous
conditions rather than the dangerous activities covered by section 341. In any
event, section 342 applies only when “the licensees do not know or have reason to
know of the condition and the risk involved.” R ESTATEMENT (S ECOND ) OF T ORTS
§ 342(c). Connor v. Union Pac. R.R., 972 P.2d 414 (Utah 1998), addresses the
application of a narrow exception to R ESTATEMENT ( SECOND ) OF T ORTS § 334
under which a landowner may owe a duty of care to an habitual trespasser. It thus
does not address the circumstances here. Other cases cited by Mr. Feichko are
similarly unpersuasive as they involve a landowner’s duty to trespassers or a
railroad’s duty to employees.
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