United States Court of Appeals
For the First Circuit
No. 01-1817
MARIBETH SCANLON AND E. MICHAEL SCANLON,
Plaintiffs, Appellants,
v.
DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, NEW ENGLAND
DIVISION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya, Circuit Judge,
Rosenn* and Cyr, Senior Circuit Judges.
Lester M. Gold for appellant.
James B. Farmer, United States Attorney, with whom Cynthia W.
Lie, Assistant United States Attorney, was on brief for appellee.
January 28, 2002
________________
*Of the Third Circuit, sitting by designation.
ROSENN, Senior Circuit Judge. The United States Army Corps
of Engineers, New England Division (the Army), owns, operates, and
maintains the Cape Cod Canal in Massachusetts. In addition to the
maritime services at the Canal, the Army provides a recreational
facility there known as the Sandwich Recreation Area within which is a
parking lot.
In July 1997, Maribeth Scanlon, one of the appellants herein,
visited the recreational area and parked her vehicle on a lot
maintained by the Army. She alleged that, while attempting to place a
baby walker into her parked vehicle, "she suffered injuries to her
ankle and knee when she fell into a partially secured hole in the
parking lot." She and her husband, E. Michael Scanlon, who pleaded a
claim for loss of consortium, filed a tort action in the United States
District Court for the District of Massachusetts under 28 U.S.C. §
1346(b)(1). The court granted the Army’s motion for summary judgment
and the plaintiffs timely appealed. We affirm.
Liability under the Federal Tort Claims Act is determined in
accordance with the law of the place where the act or omission
occurred. DiMella v. Gray Lines of Boston, Inc., 836 F.2d 718, 719-20
(1st Cir. 1988); 28 U.S.C. § 1346(b)(1). Under Massachusetts law, an
owner of land who permits the public to use it for recreational
purposes without imposing a fee or charge therefor is not liable to a
member of the public, who uses the land for such purposes, for personal
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injuries sustained by him or her on the land "in the absence of wilful,
wanton or reckless conduct by such [owner]." Mass. Gen. Laws, Ch. 12,
§ 17C. Because mere negligence on the part of the owner is not
sufficient to establish liability; the plaintiffs must prove that the
Army’s conduct was wilful, wanton, or reckless.
It is undisputed that Maribeth Scanlon was using the Army
land for recreational purposes without charge or fee. The plaintiffs
claim that the Army installed a manhole in 1990 to protect a traffic
counter, which was removed in 1996. Although the hole was not filed
in, it was capped with a galvanized diamond plate steel cover designed
to be secured with tamper-proof recessed bolts. From time to time, the
bolts were replaced due to damage and, when necessary, the manhole was
repaired. The plaintiffs claim that Mrs. Scanlon stepped on the cover
and fell into the hole.
The District Court, after reviewing the record, concluded
that there was insufficient evidence "to raise a genuine issue of
material fact concerning whether defendant’s maintenance of the
[manhole] was wilful, wanton or reckless." It therefore granted the
Army’s motion for summary judgment.
Our review of a grant of summary judgment is de novo.
Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995).
Summary judgment is proper if after considering "the pleadings,
depositions, answers to interrogatories, and admissions on file,
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together with the affidavit, if any, . . . there is no genuine issue as
to any material fact and that the moving party is entitled to judgment
as a matter of law." Id. at 36-37 (quoting F ED. R. CIV. P. 56(c)). In
conducting that analysis, the court must "view the facts in the light
most favorable to the non-moving party, drawing all reasonable
inferences in that party’s favor." Id. at 36.
In Sandler v. Commonwealth, the Supreme Judicial Court of
Massachusetts defined wilful, wanton or reckless conduct for purposes
of the recreational use statute. 644 N.E.2d 641 (Mass. 1995).
Initially, it recognized that in Massachusetts the standard for wilful,
wanton or reckless conduct in the civil tort context is the same as
that governing criminal liability for involuntary manslaughter. Id. at
643.
Reckless failure to act involves an intentional
or unreasonable disregard of a risk that presents
a high degree of probability that substantial
harm will result to another [such that the] risk
of death or grave bodily injury must be known or
reasonably apparent, and the harm must be a
probable consequence of the defendant’s election
to run that risk or of his failure to reasonably
recognize it.
Id.(citations omitted). Thus, the degree of risk involved in a wilful,
wanton or reckless act is different, both in kind and degree, from that
involved in negligent conduct. Id. at 644.
The court in Sandler held that "a persistent failure to
remedy defects in a tunnel on a traveled bikeway, simply does not
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present a level of dangerousness that warrants liability" under section
17C. Id. Similarly, here the Army’s failure to properly secure the
hole did not create that "level of dangerousness that warrants
liability." To be sure, there is evidence in the record that the bolts
securing the steel cover over the hole periodically would loosen and as
a result, the steel plate would only partially cover the hole. The
plaintiffs contend that this failure to properly secure a two-foot deep
hole that the Army actually created distinguishes the challenged
conduct in this case from the "persistent failure to remedy defects"
found insufficient to warrant liability in Sandler.1 Even if we assume
that the Army failed to properly secure and maintain the hole, this
case comes squarely within the scope of Sandler. It "simply does not
present a level of dangerousness that warrants liability" particularly
given the heightened standard applicable under the Massachusetts
recreational use statute. Thus, in entering summary judgment for the
Army, the District Court committed no error in applying Sandler to the
facts of this case.
Accordingly, the judgment of the District Court is
AFFIRMED.
1The Army contends that the hole was only one foot deep.
While Mrs. Scanlon must offer something more than her simple
belief that the hole was two feet deep, our decision in this
case would not be affected by whether the hole was one or two
feet deep.
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