Jason Carlton v. Cleburne County, AR

___________
No. 95-2843
___________
Jason Carlton, Amy Carlton *
a minor, by Tony Carlton as *
next friend; Lee Vernon Carlton,*
heirs to Gaila Carlton; Wanda *
Mae Carlton, heirs to Gaila *
Carlton; Ronnie Lee Carlton, *
heirs to Gaila Carlton; Stevie *
Lynn Carlton, heirs to Gaila *
Carlton; Brenda Carlton, heirs *
to Gaila Carlton; Darren *
Carlton, a minor, by Lee Vernon *
Carlton as next friend, heirs *
to Gaila Carlton; Leah Carlton, *
a minor, by Alvin Carlton as *
next friend; Lenora Carlton; * Appeal from the United States
Mark Barr David, a minor, by * District Court for the Eastern
William "Bill" L. Davis, Jr., * District of Arkansas.
as next friend; Wilbur L. Davis,*
Jr., also known as Bill L. *
Davis; Nicole Lambeth; Charles *
Lee Pigg; Melanie Lynn Pigg, a *
minor, by Charles Lee Pigg as *
next friend; Nathan Lee Pigg, a *
minor by Charles Lee Pigg as *
next friend; Tammy Rene Pigg; *
Stephanie Thomason, a minor, by *
Barbara Thomason, as next *
friend; Ron Waltham, heirs to *
Dana Waltham; Sherry Waltham, *
heirs to Dana Waltham; Ronald *
Matthew Waltham, a minor, by *
Ron Waltham as next friend, *
heirs to Dana Waltham; Sherran *
Faith Waltham, minor, by Ron *
Waltham as next friend, heirs *
to Dana Waltham; Terra Waltham, *
a minor, by Ron Waltham as next *
friend, heirs to Dana Waltham; *
Bishop Warren, heirs to David *
Warren; Patsy Ann Warren, heirs *
to David Warren; Dwain Warren, *
heirs to David Warren; Dwight *
Warren, heirs to Darren Warren; *
Karren Warren McClain, heirs to *
David Warren; Timothy Wayne *
Warren, heirs to David Warren; *
James Williams, heirs to Jason *
Williams; Tina Williams, heirs *
to Jason Williams; Tina *
Gayvonne Grant, heirs to Jason *
Williams; James Williams, also *
known as Jamie Williams, heirs *
to Jason Williams, *
*
Appellants, *
*
v. *
*
Cleburne County, Arkansas; *
Swinging Bridge Resort; Philip *
Dodd; Diana Gayle Dodd; Harvey *
Adcock; Lanny C. Brackett; *
Randall C. Carlton; Thurman R. *
Carr; Larry W. Crabtree; Carl *
D. Foust; Charles Sherlon Foust;*
Lavern Gallaway; Fred New; *
Delane Wright; Dan Verser; J.D. *
Kennedy, *
*
Defendants - Appellees, *
*
Mary Lou Barnett; Carolyn Sue *
O'Dwyer, *
*
Defendants, *
*
Bob Burkeen; Polly Burkeen, *
*
Defendants - Appellees, *
*
John Does, 1 - 18. *
___________
Submitted: January 11, 1996
Filed: August 21, 1996
___________
Before WOLLMAN, ROSS and MURPHY, Circuit Judges.
___________
ROSS, Circuit Judge.
Appellants, victims of a bridge collapse in Cleburne County,
-2-
Arkansas, or their decedents, appeal from the district court's1
order granting summary judgment to Cleburne County and its former
Quorum Court officials (County appellees) in this 42 U.S.C. § 1983
action. Appellants also appeal from the district court's order
granting summary judgment in favor of the Swinging Bridge Resort
and its individual owners (Resort appellees) on the appellants'
pendent state law claims of negligence.
I.
Cleburne County originally built the Winkley Bridge, also
known as the "Swinging Bridge," in 1912. In 1959, the State of
Arkansas included the bridge in its state highway system and
exercised the power of eminent domain, divesting the County of any
equitable or legal claim to title. In 1970, when the state
constructed a new bridge, the Swinging Bridge and its approaches
were saved from destruction. Although the issue of ownership of
the bridge arose some years after the new bridge was constructed,
the County nevertheless maintained the bridge and its approaches.
For the purposes of this appeal, we will assume without deciding,
that the County owned the bridge.
In 1982, the local newspapers reported the results of tests
conducted by engineers in response to Quorum Court concerns that
the bridge was deteriorating. The engineers reported that the
bridge was sturdy, capable of supporting pedestrian traffic for
another 50 to 100 years, and that the interior of the cables was
shiny and rust free. Although the engineers recommended ultrasound
testing on the bridge cables and application of a protective
coating on the cables to prevent further rusting, the Quorum Court
initiated no further tests or treatment.
1
The Honorable George Howard, Jr., United States District
Judge for the Eastern District of Arkansas.
-3-
On October 28, 1989, the Swinging Bridge collapsed and fell
into the Little Red River, when approximately forty people were on
the bridge, swinging it from side to side. Five people were killed
and many others were injured.
Appellants filed this lawsuit against the County and the
Quorum Court members under 42 U.S.C. § 1983, alleging deprivation
of their substantive due process rights. Appellants also filed an
action against the Resort appellees, who operated a cafe and resort
at the bridge site and owned the land upon which a bridge easement
lay on one side of the river. This action was based on pendent
state law claims of negligence in failing to warn appellants of an
ultrahazardous danger.
The district court granted summary judgment in favor of the
County appellees, concluding that appellants failed to establish
that a constitutional violation occurred. The court also granted
summary judgment in favor of the Resort appellees, holding that the
appellees are immune from suit under Arkansas' Recreational Use
Statute. We affirm.
II.
Nothing in the language of the Due Process Clause imposes upon
the state an affirmative obligation to protect or care for
particular individuals. DeShaney v. Winnebago Cty. Dep't of Social
Servs., 489 U.S. 189, 195 (1989); Gregory v. City of Rogers, 974
F.2d 1006, 1009 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993).
Rather, the "Clause is phrased as a limitation on the State's power
to act, not as a guarantee of certain minimal levels of safety and
security." DeShaney, 489 U.S. at 195; see also Collins v. City of
Harker Heights, 112 S. Ct. 1061, 1069 (1992). Nevertheless, this
court has held that the Due Process Clause imposes a duty on state
actors to protect or care for citizens in two situations: "first,
in custodial and other settings in which the state has limited the
-4-
individuals' ability to care for themselves; and second, when the
state affirmatively places a particular individual in a position of
danger the individual would not otherwise have faced." Gregory,
974 F.2d at 1010 (citing DeShaney, 489 U.S. at 195, 199-200);
Sellers v. Baer, 28 F.3d 895, 899 (8th Cir. 1994), cert. denied,
115 S. Ct. 739 (1995). Here, the appellants do not contend that
they were ever in "custody" or were otherwise limited in their
ability to care for themselves. Therefore, we consider only the
"creation of danger" exception, or whether the state affirmatively
placed these particular individuals in a position of danger they
would not have otherwise encountered.
We stated in Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir.
1990), that "[i]t is not clear, under DeShaney, how large a role
the state must play in the creation of danger and in the creation
of vulnerability before it assumes a corresponding constitutional
duty to protect. It is clear, though, that at some point such
actions do create such a duty." Cases where the duty to protect
has arisen have consistently involved affirmative conduct by
government officials directly responsible for placing particular
individuals in a position of danger. See, e.g., L.W. v. Grubbs,
974 F.2d 119, 121-22 (9th Cir. 1992) (state officials knowingly
assigned violent, habitual offender to work alone with female
prison employee and did not inform her of the risk), cert. denied,
508 U.S. 951 (1993); Medina v. City of Denver, 960 F.2d 1493, 1497
n.5 (10th Cir. 1992) (police officers engaged in a high speed car
chase potentially liable for creating a special danger faced by a
bicyclist); Freeman, 911 F.2d at 54-55 (police chief prevented
protective services from enforcing restraining order against
victim's estranged husband); Wood v. Ostrander, 879 F.2d 583, 590
(9th Cir. 1989) (trooper created a danger by impounding car and
abandoning female passenger in a high crime area at 2:30 a.m.),
cert. denied, 498 U.S. 938 (1990); Wells v. Walker, 852 F.2d 368,
370-71 (8th Cir. 1988) (state officials created a danger when
released prisoner with violent propensities was transported to
-5-
victim's store without warning), cert. denied, 489 U.S. 1012
(1989). In these cases the courts have uniformly held that state
actors may be liable if they affirmatively created the plaintiffs'
peril or acted to render them more vulnerable to danger. See
DeShaney, 489 U.S. at 201. In other words, the individuals would
not have been in harm's way but for the government's affirmative
actions.
Appellants assert the County appellees affirmatively placed
them in a position of danger they otherwise would not have faced
when the appellees, with actual knowledge of the deteriorating
condition of the bridge, promoted the bridge as a tourist
attraction, had the bridge placed on the National Register of
Historic Places, performed cosmetic work on the bridge in order to
maintain an attractive appearance, established a park, built a
parking lot, removed a warning sign, and promoted the bridge
through publications. According to appellants, the County
appellees' conduct created the danger by impliedly assuring them of
the bridge's safety and encouraging them to be on the bridge, and
therefore, the appellees had an affirmative duty to protect against
such harm.
Even if we accept as true that the County owned the bridge and
knew the bridge was deteriorating but refused to provide any
maintenance or repair, we must conclude that no constitutional
violation occurred. Mere knowledge of danger to the individual
does not create an affirmative duty to protect. DeShaney, 489 U.S.
at 200. Simply offering a location as a tourist attraction is not
the type of affirmative government action that creates a duty to
protect under DeShaney. Appellants allege no affirmative act on
the part of government officials directly placing them on the
bridge. Nor did the County appellees' actions "create the danger"
causing the bridge to collapse. To the contrary, accepting the
appellants' allegations as true, the bridge cables broke because of
internal corrosion caused by rust. To impose an affirmative duty
-6-
to protect the general public from a situation created by the
processes of nature would be to impose upon a county an impossible
burden. Finally, neither the County appellees' actions nor
inaction placed these particular individuals in a position of
danger. Gregory, 974 F.2d at 1010; Wells, 852 F.2d at 370-71.
Instead, any action on the part of the County appellees was
directed toward members of the general public. There simply was no
constitutional deprivation under § 1983 in this case.
III.
Appellants filed pendent state law claims against the Resort
appellees alleging the appellees negligently failed to warn them of
an ultrahazardous condition. Appellants claim the Resort appellees
actively encouraged business from visitors to the bridge by
picturing the bridge on their brochures and postcards and calling
their operation the Swinging Bridge Resort. Appellants also allege
the Resort appellees had actual knowledge of the condition of the
bridge, having been among those to bring its condition to the
attention of the County appellees, but in spite of this knowledge,
the Resort appellees took no action to warn visitors to the bridge
of the dangerous condition.
In order to "encourage owners of land to make land and water
areas available to the public for recreational purposes," the
Arkansas Recreational Use Statute (the Act) generally immunizes a
landowner from liability when an individual is injured while on the
land for recreational purposes. Ark. Code Ann. § 18-11-301.
Specifically, the Act provides that "an owner of land owes no duty
of care to keep the premises safe for entry or use by others for
recreational purposes or to give any warning of a dangerous
condition, use, structure, or activity on the premises to persons
entering for recreational purposes." Ark. Code Ann. § 18-11-304.
The Act, however, does not limit a landowner's liability for
"malicious, but not mere negligent, failure to guard or warn
-7-
against an ultra-hazardous condition . . . actually known to the
owner to be dangerous," Ark. Code Ann. § 18-11-307(1), or where the
landowner "charges the person or persons who enter or go on the
land for the recreational use thereof." Ark. Code Ann. § 18-11-
307(2).
Appellants concede they were visiting the bridge for
recreational purposes. However, they contend the Resort appellees
nevertheless remain liable under the two exceptions to the Act.
First, appellants argue that because the Resort appellees operated
a business near the bridge site and collected revenue from bridge
visitors, this was not a gratuitous undertaking as envisioned by
the Act, and therefore the "charge" exception to the Act is
triggered. We disagree.
The immunity of the Act applies if the person uses the
property without charge of "an admission fee for permission to go
upon or use the land." Ark. Code Ann. § 18-11-302(4). It is
uncontroverted that the appellants did not pay a fee to the Resort
appellees or any other entity for admission to or use of the land,
or to enjoy the privilege of sightseeing at the bridge. Even if
the presence of a business enterprise adjacent to the bridge was
found to be legally significant, which itself is questionable, it
is undisputed that none of the appellants, nor any member of their
groups, went to the diner or the trout dock as customers on the day
the bridge collapsed. In fact, the diner was closed and none of
the appellants had registered as customers of the resort. Instead,
they merely parked on the Resort appellees' parking lot, without
charge, to sightsee at a public bridge. This court has held that
"[c]onsideration [under the Act] should not be deemed given unless
it is a charge necessary to utilize the overall benefits of a
recreational area so that it may be regarded as an entrance or
admission fee." Wilson v. United States, 989 F.2d 953, 957 (8th
Cir. 1993). Because there was no entrance fee, or any other fee of
any kind, paid in the instant case, we conclude the "charge"
-8-
exception to the Act does not apply.
Appellants also argue the Resort appellees remain liable under
the second exception to the Act, which provides that a landowner
will not enjoy immunity where he or she maliciously fails to guard
or warn against an ultrahazardous condition actually known to the
landowner to be dangerous. Ark. Code Ann. § 18-11-307(1). In
order to support their claim under this theory, appellants are
required to prove not only that the Swinging Bridge was an
ultrahazardous structure actually known by the Resort appellees to
be dangerous, but also that the Resort appellees maliciously, not
merely negligently, failed to guard or warn them of this dangerous
condition.
As the district court noted, no Arkansas court has interpreted
"ultrahazardous" as used under the Act. In a similar situation,
this court applied the Restatement (Second) of Torts, § 520, in
order to define "ultrahazardous" under Missouri's Recreational Use
Statute where neither the Missouri statute, nor the courts, had
defined the term. Henderson v. United States, 965 F.2d 1488, 1495
(8th Cir. 1992). Appellants take issue with this reliance on
2
§ 520, as applied in strict liability cases, arguing that such a
concept has no rational relationship to recreational use statutes.
2
The Restatement (Second) of Torts § 520 provides that in
determining whether an activity is abnormally dangerous the
following factors are to be considered:
(a) existence of a high degree of risk of some harm to
the person, land or chattels of others;
(b) likelihood that the harm that results from it will
be great;
(c) inability to eliminate the risk by the exercise of
reasonable care;
(d) extent to which the activity is not a matter of
common usage;
(e) inappropriateness of the activity to the place
where it is carried on; and
(f) extent to which its value to the community is
outweighed by its dangerous attributes.
-9-
Instead, they advocate a broader definition of "ultrahazardous" and
assert that a noticeably deteriorating bridge ready to collapse
could be found by a jury to be an ultrahazardous condition.
We do not need to decide this issue, however, because even if
we were to assume the bridge was an ultrahazardous structure, the
appellants have offered no evidence to show the appellees either
actually knew the bridge constituted a dangerous condition or that
they maliciously failed to warn or guard against the danger.
With respect to the Resort appellees' actual knowledge of the
dangerous condition, the appellants assert that Gayle Dodd, one of
the Resort appellees, knew of the deterioration of the bridge and
even campaigned for its inspection and repair. The inspection was
subsequently conducted, however, and the engineers ultimately
reported that the structure was sound. Appellants have not
contested the Resort appellees' statement of undisputed facts that
the problems with the bridge, brought to the attention of officials
in 1982, were repaired, or that the Resort appellees did not hear
of any problems with the bridge since that time. The undisputed
facts also show that several of the Resort appellees frequently
walked on the bridge themselves, including just two weeks prior to
its collapse. We agree with the district court's conclusion that
the appellants have failed to create a fact issue showing that the
Resort appellees actually knew the bridge was dangerous.
We also agree with the district court that the appellants have
failed to present a question of fact tending to prove that the
Resort appellees maliciously failed to warn the appellants or guard
against the alleged ultrahazardous condition of the bridge. In
Henderson, 965 F.2d at 1494, this court determined that the term
"malicious," as used in Missouri's Recreational Use Statute, was
malice in its legal sense. In Arkansas, "malice" is inferred where
"the negligent party knew, or had reason to believe, that his act
of negligence was about to inflict injury, and that he continued in
-10-
his course with a conscious indifference to the consequences."
Stein v. Lukas, 823 S.W.2d 832, 834 (Ark. 1992) (quoting Missouri
Pacific R.R. v. Mackey, 760 S.W.2d. 59, 63 (Ark. 1988), cert.
denied, 490 U.S. 1067 (1989)) (further citations omitted).
Appellants have offered no facts to support the theory that
Resort appellees maliciously failed to warn. There is no evidence
that the appellees knew the bridge was about to collapse, yet
continued their course of conduct with a conscious indifference to
these consequences. In Roten v. United States, 850 F. Supp. 786,
794-95 (W.D. Ark. 1994), aff'd, 39 F.3d 1184 (8th Cir. 1994), the
district court held that the government's failure to install
guarding devices prior to a boy's fall from cliffs in a national
recreational area was not malicious under Ark. Code Ann. § 18-11-
307(1), despite the fact that there had been three prior falls from
the obviously dangerous cliffs. The cliffs in Roten posed an
obvious danger, in contrast to the collapse of the Swinging Bridge,
which was an unforeseen occurrence that even the engineers who
inspected the bridge were unable to predict. Appellants again
point to appellee Gayle Dodd's knowledge of needed repairs as
evidence supporting their contention that the Resort appellees
acted maliciously. This evidence, however, supports precisely the
contrary conclusion. The district court properly concluded that
the Resort appellees were immune under the Act.
IV.
In conclusion, we affirm the district court's grant of summary
judgment in favor of the County and Resort appellees.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-11-