Solomon v. National Park Service (TV3)

Filing 22

MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 12/18/13. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ADA ROBIN SOLOMON,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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No.: 3:12-CV-433-TAV-HBG

MEMORANDUM OPINION
This civil action is before the Court on the government’s Motion for Summary
Judgment [Doc. 16], in which the government seeks dismissal of plaintiff’s personal
injury claims. Plaintiff submitted a response [Doc. 19], to which defendant submitted a
reply [Doc. 21]. The Court has considered the matter, in light of the arguments of the
parties, the exhibits submitted on behalf of the parties, and the prevailing case law. For
the reasons discussed herein, the government’s motion [Doc. 16] will be granted, and
plaintiff’s claims against the government will be dismissed.
I.

Background
The facts of this case are undisputed. Plaintiff and her family have vacationed in

the Gatlinburg-Pigeon Forge area for fifteen years [Doc. 17]. On September 29, 2010,
plaintiff and her family visited the Cades Cove area of the Great Smoky Mountains
National Park while on vacation [Doc. 11 ¶ 9]. During the course of their visit, plaintiff
and her family toured various historic sites located in the park by driving to a historic site

before hiking the site on foot [Doc. 17 at 5]. Plaintiff repeated this process at the
Missionary Baptist Church site, at which plaintiff toured the church and the surrounding
cemetery [Id.]. After touring the historic site, plaintiff crossed the street and hiked into
the woods on a trail, which was covered in leaves at the time [Id.; see also Doc. 17-2].
When walking back toward her car on the trail, while traveling downhill, plaintiff stepped
into a hole or other depression and fell backwards [Doc. 17 at 5]. Leaves were covering
the hole, making plaintiff unable to see it as she was descending toward her car [Id.]. As
a result of her slipping in this hole, plaintiff alleges that she suffered injuries when she
extended her arm to catch herself.
After exhausting her administrative remedies in February 2012, plaintiff filed the
present action against the National Park Service in August 2012 under the Federal Tort
Claims Act, 28 U.S.C. §§ 2671-2680, and subsequently amended her complaint to
substitute the United States as the proper party [Docs. 9, 11]. In her amended complaint
[Doc. 11], plaintiff asserts claims for negligence and/or gross negligence, seeking
$100,000 in damages.
II.

Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is

proper “if the movant shows that 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). The
moving party bears the burden of establishing that no genuine issues of material fact
exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Phillip Morris
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Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn
therefrom must be viewed in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).
“Once the moving party presents evidence sufficient to support a motion under
Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.”
Curtis Through Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn.
1991) (citing Celotex, 477 U.S. at 317). To establish a genuine issue as to the existence
of a particular element, the non-moving party must point to evidence in the record upon
which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must
involve facts that might affect the outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper
question for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the
evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the
record “to establish that it is bereft of a genuine issue of material fact.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989). Thus, “the inquiry performed
is the threshold inquiry of determining whether there is a need for a trial—whether, in
other words, there are any genuine factual issues that properly can be resolved only by a

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finder of fact because they may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250.
III.

Analysis
The government argues that summary judgment is appropriate because the

Tennessee Recreational Use statutes, Tenn. Code Ann. §§ 70-7-101 to -104 bar plaintiff’s
claims in this case.

Specifically, the government argues that because plaintiff has

presented no evidence to show whether the government’s conduct constitutes gross
negligence, plaintiff cannot recover for her injuries.

Plaintiff argues that the

government’s failure to maintain the area where plaintiff fell or warn would-be hikers on
the trail precludes summary judgment.
The Tennessee Recreational Use statutes, which were intended to encourage
landowners to open their lands for recreational uses, see Cagle v. United States, 937 F.2d
1073, 1075 (6th Cir. 1991), provide that:
The landowner, lessee, occupant, or any person in control of land or
premises owes no duty of care to keep such land or premises safe for entry
or use by others for such recreational activities as hunting, fishing, trapping,
camping, water sports, white rafting, canoeing, hiking [etc.] . . . nor shall
such landowner be required to give any warning of hazardous conditions,
uses of, structures, or activities on such land or premises to any person
entering on such land or premises for such purposes, except as provided in
§ 70-7-104.
Tenn. Code Ann. § 70-7-102(a) (2011).1 Section 104 of the statutes states that the limit
on liability does not exist for “[g]ross negligence, willful or wanton conduct that results

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The parties do not dispute that the statutes apply to the federal government to the same
extent they apply to private landowners. Cagle, 937 F.2d at 1075.
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in a failure to guard or warn against a dangerous condition, use, structure or activity . . . .”
Tenn. Code Ann. § 70-7-104(a)(1).

Under Tennessee law, gross negligence is a

“negligent act done with utter unconcern for the safety of others, or one done with such a
reckless disregard for the rights of others that a conscious indifference to consequences is
implied in law.” Leatherwood v. Wadley, 121 S.W.3d 682, 693 (Tenn. Ct. App. 2003)
(internal quotation and citation omitted). One engages in “willful or wanton conduct”
when one commits an act that involves deliberation and malice” or that exhibits “‘a
heedless and reckless disregard for the rights of another person, with consciousness that a
pertinent act or omission may result in injury to another.’” Stofer v. Ramsey, 558 F.
Supp. 1 3 (E.D. Tenn. 1982). In Sumner v. United States, 794 F. Supp. 1358 (M.D. Tenn.
1992), the plaintiff was injured by unexploded ordinance on the firing range of a military
installation. The court held that, under the Tennessee Recreational Uses statutes, the
Army was grossly negligent in its failure to maintain proper warning signs or otherwise
warn individuals of a known dangerous condition, because its conduct “constituted a
reckless disregard of the public,” id. at 1367, enabling plaintiff to recover.
In this case, the parties do not dispute that plaintiff, who visited the park and
historic sites in order to tour and hike, was engaged in activity that falls under the
Recreational Use Statutes. As to whether the government’s failure to warn constituted
gross negligence under the exception to the general limit on liability, the government
submitted the declaration of Dale Brukiewa, the Maintenance Mechanic Supervisor for
the Cades Cove District of the park [Doc. 17-2] in support of its position that the
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government owed no duty to warn the plaintiff. Brukiewa first notes that the Cades Cove
District, in which plaintiff fell, encompasses 100,000 acres, only 59.48 of which are
developed [Id. ¶ 2]. Brukiewa also states that the area where plaintiff fell is located up a
hill on an unofficial trail, or “social trail,” which is described as follows:
A social trail is an unofficial trail that is not created by [the National Park
Service] but instead, is created by the public’s repeated use of such area.
More specifically, these social trails are typically located in undeveloped,
wooded areas that are near or adjacent to historic sites and are most
commonly used by visitors to the Cades Cove District to relieve
themselves. Social trails are not maintained by the [National Park Service]
. . . . Official [National Park Service] maintained hiking trails are
designated by a sign that includes; the name of the trail and length of the
trail.
[Id. ¶ 3].
From this, plaintiff has not shown that the government’s failure to warn of the
potential conditions of unofficial trails constituted gross negligence. Plaintiff argues that
because the National Park Service, as an agent of the United States, was aware of the
existence of these unofficial, unmaintained trails, it had a duty to warn which it
“consciously chose to ignore” [Doc. 19 at 8].

The Court disagrees.

Brukiewa’s

declaration, while acknowledging the existence of the unofficial trail on which plaintiff
fell, does not provide any indication that the government had any knowledge of the actual
condition which caused plaintiff to fall and injure herself, that is, the leaves covering a
depression or hole. In addition, Brukiewa’s declaration, which describes the 100,000
acres in the Cades Cove district, including the number of historic sites, campgrounds, and
facilities contained in the area, and fifty-five developed acres, supports the government’s
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position that it had no knowledge or reason to know of the existence of a depression or
hole on an undeveloped path which was seasonally covered by falling leaves. Plaintiff
has offered no evidence showing that the government’s inability to warn plaintiff of the
dangers of falling leaves covering an uneven path constituted a “reckless disregard of the
public.” Compare Sumner, 794 F. Supp. at 1367 (finding gross negligence for injury
where government knew of unexploded ordinance, a condition which it had created, yet
failed to warn others) with Bishop v. Beckner, 109 S.W.3d 725, 729 (Tenn. Ct. App.
2002) (finding no gross negligence for injury from cave where “the nature, extent, and
any potential danger of [the cave] was totally unknown to the landowner”). This case is
analogous to the facts of Bishop in that, in both cases, the landowner-defendants were
unaware of the conditions that led to the injury in question, and thus had no ability, much
less a duty, to warn those who entered onto their property and were subsequently injured.
Thus, the Court finds that the Tennessee Recreational Use statutes apply to this case and
concludes that the government owed no duty to warn plaintiff, barring recovery for the
injuries she sustained from falling.2

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In addition, the Court notes that even if it were to conclude that the government owed a
duty to plaintiff, plaintiff’s recovery would likely be barred under Tennessee law, due to the fact
that plaintiff knowingly walked onto the unmarked trail, seeing that leaves were covering the
path. See McCorkle v. Tenn. Valley Auth., No. 3-11-CV-168, 2012 WL 607661, at *5 (E.D.
Tenn. Feb. 24, 2012) (noting that plaintiff who knowingly encountered obvious danger by
stepping into a pool of water near a drinking fountain would be precluded from recovering for
her injuries).
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IV.

Conclusion
For the reasons previously discussed, and in light of the arguments of the parties

as well as the prevailing case law, the government’s Motion for Summary Judgment
[Doc. 16] will be GRANTED, plaintiff’s claims against the government will be
DISMISSED, and this case will be CLOSED.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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