Luke Greika v. United States ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3013
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Luke Greika, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: April 17, 2008
Filed: June 13, 20089
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Before GRUENDER, BRIGHT and BENTON, Circuit Judges.
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PER CURIAM.
Luke Greika appeals the district court’s1 adverse grant of summary judgment
on his claim under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq.
Greika camped at a United States Army Corps of Engineers (“Corps”) campground
at Heber Springs Park, a recreational area at Greers Ferry Lake in Arkansas. The
Corps does not charge an admission fee to enter the park, but Greika paid $15 per
night to rent a campsite. A rock shifted while Greika was walking along a bluff near
his campsite, and he fell and was injured.
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
Based upon our de novo review of the record, we conclude that the district court
properly granted summary judgment. See Executive Air Taxi Corp. v. City of
Bismarck, 518 F.3d 562, 566 (8th Cir. 2008) (standard of review). Greika first argues
that the Arkansas Recreational Use Statute (“ARUS”), Ark. Code Ann. §§ 18-11-301
et seq., which provides immunity for landowners who allow recreational use of their
property without charge, does not extend to the federal government. We have
consistently concluded that the ARUS provides immunity to the United States to the
same extent as a private person. See, e.g., Mandel v. United States, 719 F.2d 963, 967
(8th Cir. 1983).
Second, Greika claims that the $15 camping fee was a “charge,” and the ARUS
does not provide immunity for a landowner who charges recreational users. Ark.
Code Ann. § 18-11-307(2). “Charge” is defined as “an admission fee for permission
to go upon or use the land” and does not include “[c]ontributions in kind, services, or
cash paid to reduce or offset costs and eliminate losses from recreational use.” Id. §
18-11-302(1). Interpreting a similar Missouri statute in Wilson v. United States, 989
F.2d 953 (8th Cir. 1993), we found that a $2 fee to use land overnight was not an
“admission fee” to enter the land, where the campers “entered the park without paying
a fee.” Id. at 957. Similarly, Greika did not pay an admission fee to enter the park.
The $15 nightly fee he paid to rent the campsite was used to “offset costs and
eliminate losses from recreational use.” The Government submitted uncontested
evidence that recreational use fees amounted to only half of the annual expenditures
to maintain and operate the recreational use facilities.
Greika asks for the first time on appeal that we certify to the Arkansas Supreme
Court these two questions of law: whether the ARUS extends to the federal
government and whether the $15 camping fee is a “charge.” “Once a question is
submitted for decision in the district court, the parties should be bound by the outcome
unless other grounds for reversal are present. Only in limited circumstances should
certification be granted after a case has been decided.” Perkins v. Clark Equip. Co.,
823 F.2d 207, 210 (8th Cir. 1987). We decline to do so here.
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Finally, Greika argues that the United States maliciously failed to warn him
about an ultra-hazardous structure, loose rocks near the bluffs. See Ark. Code Ann.
§ 18-11-307(1). Assuming that the rocks were an ultra-hazardous structure, Greika
failed to show that the United States maliciously failed to guard against the danger of
shifting rocks near the bluffs. There had been no other reported incidents of injuries,
the height of the bluffs and the collapsed rocks were obvious to campers, and the
United States did not advise Greika to stand on the rocks. See Jenkins v. Ark. Power
& Light Co., 140 F.3d 1161, 1164 (8th Cir. 1998) (finding no malice where landowner
did not advise plaintiff to dive in a shallow area); Roten v. United States, 850 F. Supp.
786, 790 (W.D. Ark. 1994) (finding that, despite three previous deaths on account of
accidental falls from cliffs, the United States did not act maliciously).
Accordingly, we affirm for the reasons set forth herein as well as in the district
court’s well-reasoned opinion. See 8th Cir. R. 47B.2
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2
Because we find that the ARUS immunizes the Government, we do not address
the discretionary function exception of the FTCA.
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