Linford v. United States of America

Filing 39

MEMORANDUM DECISION AND ORDER granting 21 Motion for Summary Judgment. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KARLEEN CRYSTAL LINFORD,
Case No. 4:13-cv-00194-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES OF AMERICA,
Defendant.

INTRODUCTION
Pending before the Court is Defendant United States of America’s Motion to
Dismiss, For Judgment on the Pleadings, or for Summary Judgment. (Dkt. 21). The
United States argues that Linford’s negligence claim fails as a matter of law under two
statutes. First, the United States claims that the discretionary function exception to the
Federal Tort Claims Act (“FTCA”) protects the Government’s conduct. Second, it claims
immunity under the State of Idaho’s Recreational Use Statute (“IRUS”), Idaho Code §
36-1604. Def’s Memo in Support of Mot. to Dissmiss at 1–2, Dkt. 21–1. The United
States therefore suggests it is entitled to judgment on the pleadings or summary
judgment. As explained below, the Court concludes that the United States is immune
under IRUS and therefore entitled to summary judgment.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The Accident
On June 11, 2011, Plaintiff Karleen Crystal Linford sustained injuries from an
ATV accident, which she was driving over a cattle guard on a trail in the Caribou
Targhee National Forest in Southeastern Idaho. Compl., ¶ 7, Dkt. 1. When crossing the
cattle guard, the tires of Linford’s ATV began to slip, and it rolled off the downhill side
of the cattle guard, falling on top of her. Id. The accident damaged the ATV and Linford
suffered serious injuries. Id.
Design and construction of cattle guard
From 2000 through 2002, Assistant District Ranger David Sleight and Forest
Technician Randall Michaelson designed the cattle guards to be installed in the Westside
Ranger District (“District”). Def. Statement of Undisputed Facts (“SOF”), ¶¶ 16–17, Dkt.
21–2; Sleight Dec., ¶¶ 4–5, Dkt. 21–7; Michaelson Dec., ¶ 3, Dkt. 21–21.
Sleight and Michaelson designed the cattle guard to be steel instead of wood for
durability and fewer maintenance issues. SOF, ¶ 19, Dkt. 21–2; Sleight Dec., ¶ 8(a), Dkt.
21–7; Michaelson Dec., ¶ 4(a), Dkt. 21–21. Sleight and Michaelson considered various
goals in designing the cattle guards, including managing livestock, safety to ATV riders,
and cost. Id. The final design of the cattle guard was approximately 18 to 24 inches above
ground and 12 feet long. Id. The length and height of the cattle guard was intended to
keep livestock from jumping over the cattle guard. SOF, ¶ 19(b), Dkt. 21–2; Sleight Dec.,
¶ 8(b), Dkt. 21–7; Michaelson Dec., ¶ 4(b), Dkt. 21–21. The cattle guard was composed

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of three parts to allow for efficient transporting and installation. SOF, ¶ 19(b), Dkt. 21–2;
Michaelson Dec., ¶ 4(b), Dkt. 21–21. Sleight and Michaelson utilized steel rebar bars for
the tread of the ramps and decks of the cattle guard to provide better tread for ATV tires
and allow for easy removal if a cow leg were to become stuck in the cattle guard. SOF,
¶ 19(d), Dkt. 21–2; Sleight Dec., ¶ 8(d), Dkt. 21–7; see Michaelson Dec., ¶ 4(d), Dkt. 21–
21. They chose 47 inches as the width of the cattle guard so that full length (20 feet) of
the rebar bars could be used without waste. SOF, ¶ 19(e), Dkt. 21–2; Michaelson Dec.,
¶ 4(e), Dkt. 21–21. Furthermore, Sleight and Michaelson chose to make the cattle guard
narrow because a wider cattle guard would encourage recreationalists to use
impermissibly large vehicles on the trail. SOF, ¶ 19(e), Dkt. 21–2; Sleight Dec., Dkt.
¶ 8(e), Dkt 21–7.
Inspections
After the installation of the subject cattle guard, Michaelson rode over it two or
three times to ensure that it was safe. SOF, ¶ 26, Dkt. 21–2; Michaelson Dec., ¶ 9, Dkt.
21–21. Michaelson observed photos taken recently after Linford’s accident and affirmed
that the cattle guard appeared to be in the same condition that it had always been. SOF,
¶ 27, Dkt. 21–2; Michaelson Dec., ¶ 11, Dkt. 21–21. Moreover, the Forest Service
frequently rode over the cattle guard and never observed any problems with the unit.
SOF, ¶ 29, Dkt. 21–2; Sleight Dec., ¶ 15, Dkt. 21–7; Michaelson Dec., ¶ 12; Dkt. 21–21.
According to Wes Stumbo, the current Forest Engineer for the Caribou Traghee National
Forest, “[t]he cattle[]guard itself shows no missing components and appears to be

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serviceable.” Stumbo Dec., at USA_00007, Dkt. 26–8. Similarly, Linford had traversed
the cattle guard on multiple occasions, and on the day of the accident, the cattle guard did
not appear different to Linford than it previously had. Hurwit Dec. Ex. 1 at 78, Dkt. 21–
41.
Linford’s claims
Linford alleges that her accident was proximately caused by the U.S. Forest
Service’s negligent maintenance and construction of the cattle guard. See Compl., ¶ 8,
Dkt. 1. Linford claims that the Forest Service’s forest technician Randall Michaelson’s
“decisions about how he would construct the subject cattle guard – how high, how wide
and how steep to build it – were not ‘grounded in social, economic, and political policy.’”
Pl.’s Resp. at 9, Dkt. 26. Linford claims that rather than making Forest Service policy
when he constructed the cattle guard, Michaelson was implementing existing policies of
the Forest Service.
LEGAL STANDARD
1. Summary Judgment
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the

1

In Linford’s deposition, when asked if the cattle guard looked any different on the day of the
accident than it had on previous occasions, Linford replied “[n]ot that I recall.”

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summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions,

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answers to interrogatories, or admissions on file” that a genuine dispute of material fact
exists. Celotex, 477 U.S. at 324.
ANALYSIS
1. Linford’s Failure to Warn Claim
As an initial matter, the Court notes that in her response brief, Linford attempts to
raise a new theory of liability – failure to warn. See Pl.’s Resp. at 8–10, Dkt. 26. A party
cannot raise a new theory of liability in order to contest summary judgment. Stations
West, LLC v. Pinnacle Bank of Or., 338 Fed. Appx. 658, 660 (9th Cir. 2009). In Stations
West, the Court stated that “[c]hanging the basis of liability at that point would have
effectively amended the complaint after the close of discovery and initiation of summary
judgment proceedings.” Id. Here, raising the theory of liability of failure to warn would
likewise effectively amend Linford’s complaint. Accordingly, Linford’s failure to warn
claim is rejected.
2. Idaho’s Recreational Use Statute and Summary Judgment on Linford’s
Negligence Claim
IRUS “provides immunity to those who make their land available to the public for
recreational use without charge.” Albertson v. Fremont County, Idaho, 834 F. Supp. 2d
1117, 1128 (D. Idaho 2011). IRUS applies to the United States because, under the FTCA,
the United States is liable for tort claims “in the same manner and to the extent as a
private individual under like circumstances.” 28 U.S.C. § 2674; see McGhee v. City of
Glenns Ferry, 729 P.2d 396, 397 (Idaho 1986). IRUS confers immunity when three
conditions are met: “(1) the person or entity asserting immunity must be an ‘owner’

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within the meaning of the statute; (2) the owner must have permitted the person to enter
the property ‘without charge’; and (3) the use of the property must be for recreational
purposes.” Alberton, 834 F. Supp. 2d at 1128 (citing Idaho Code § 36-1604(d)).
However, IRUS will not immunize a party engaged in willful and wanton conduct.
Jacobsen v. City of Rathdrum, 766 P.2d. 736, 739 (Idaho 1988).
Willful and wanton conduct involves a “radically different” mental state than
negligence. Jones v. United States, 693 F.2d 1299, 1304 (9th Cir. 1982). Willful and
wanton conduct means intentional or reckless actions, taken under circumstances where
the actor knew or should have known that the actions created an unreasonable risk of
harm and that the probability that the harm would occur was high. Idaho Civil Jury
Instruction § 2.25; see also O’Guin v. Bingham County, 72 P.3d 849, 854 (Idaho 2003).
Here, the United States satisfies all of the conditions of IRUS: (1) the United
States is the owner within the meaning of the statute; (2) the United States did permit
Linford to be on the property without charge; and (3) Linford was using the property for
recreational purposes. The Court also finds that IRUS bars Linford’s suit because she has
failed to allege willful and wanton conduct. In her Complaint, Linford alleges that “but
for the negligent maintenance and construction of the [cattle guard], the accident would
not have occurred.” Compl., ¶ 8, Dkt. 1 (emphasis added). In her response brief, Linford
argues, “‘negligently’ as used in the Complaint incorporates all degrees of negligent
conduct including willful and wanton conduct.” Resp. at 3, Dkt. 26. This argument is
without merit. Linford never alleged willful and wanton conduct in her Complaint, and

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she never asked for leave to amend her Complaint to include such an allegation.
Therefore, IRUS confers immunity to the United States.
In turn, the United States is entitled to summary judgment. There is no genuine
issue of material fact as to whether the United States acted willfully and wantonly with
respect to the cattle guard. Even had Linford pleaded willful and wanton conduct, she
would need to show facts that (1) the Forest Service had actual or constructive knowledge
that the cattle guard was a peril, (2) the Forest Service had actual or constructive
knowledge that the cattle guard was highly likely to cause injury, and (3) the Forest
Service intentionally or recklessly disregarded the risk of injury. There are no such
factual allegations in the record.
There is no evidence in the record that the Forest Service knew or had reason to
know that the cattle guard was a peril. In making this determination, courts generally
consider whether have been prior accidents at the site. See e.g., Spence v. United States,
629 F. Supp. 2d 1068 (E.D. Cal. 2009); Mattice v. U.S. Dep’t of Interior, 969 F.2d 818,
823 (9th Cir. 1992). Here, the cattle guard at issue, as well as others in the area, had been
continuously used without any known accidents or incidents. Sleight Decl. at ¶ 16; Tiller
Decl. at ¶ 16; Youngblood Decl. at ¶¶ 7-8. (Dkts. 21-9, 21-13, 21-22). Moreover, Forest
Service personnel had inspected the cattle guard every year, used them on a regular basis,
and, in fact, observed it in good-working condition only a week before the incident.
Sleight Decl. at ¶¶ 11-13, 15; Tiller Decl. at ¶ 11, 14., Michaelson Decl. at ¶ 12;
Youngblood Decl. at ¶ 6. (Dkts. 21-9, 21-13, 21-22). Under these circumstances, the

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Forest Service could not have known or had reason to know that the cattle guard was a
peril.
Likewise, there are no facts in the record indicating that the Forest Service had
reason to believe there was a high degree of probability that an accident would occur.
Similar to why the Forest Service had no reason to believe the cattle guard was in peril,
the lack of incidents involving the cattle guard is important to this determination. See
Armstrong v. United States, 2008 WL 5047680, at *7 (N.D. Cal. Nov. 24, 2008).
Additionally, Linford herself had driven over the cattle guard several times without
incident, suggesting a low probability of the accident occurring. Hurwit Decl. Ex. 1 at
51:22-24, 84:17-86:14. (Dkt. 31-4).
Finally, there is no evidence leading to the conclusion that the Forest Service acted
with intentional or reckless disregard for the risk of injury. The Forest Service developed
an inspection program for the very purpose of limiting accidents. Sleight Decl. at ¶¶ 1113; Tiller Decl. at ¶ 11. (Dkt.s 21-7, 21-13). Accordingly, the United States is entitled to
summary judgment.2
ORDER
IT IS HEREBY ORDERED:

2

Given the result above, the Court finds it unnecessary to address the
Government’s argument that the discretionary function exception to the FTCA warrants
dismissal of Linford’s claims.

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1. Defendant’s Motion for Summary Judgment (Dkt. 21) is GRANTED and all
Linford’s claims are dismissed with prejudice.
2. The Court will enter a separate judgment in accordance with Fed. R. Civ. P. 58.

DATED: September 21, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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