Scanlon v. Department of Army

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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