                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-1746
                                    ___________

C. Russell Gould,                        *
                                         *
            Appellant,                   *
                                         * Appeal from the United States
v.                                       * District Court for the Western
                                         * District of Missouri.
United States of America,                *
                                         *
          Appellee.                      *
____________________                     *
                                         *
William R. Zanetello,                    *
                                         *
            Appellant,                   *
                                         *
v.                                       *
                                         *
United States of America,                *
                                         *
            Appellee.                    *
                                    ___________

                            Submitted: September 25, 1998

                                 Filed: November 18, 1998

                                    ___________

Before BOWMAN, Chief Judge, and WOLLMAN and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              ___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.

       William Zanetello and Russell Gould, strangers to each other at the time, were
injured on different days while sledding down the back of a dam built, operated, and
owned by the Army Corps of Engineers (the Corps) at Longview Lake in Jackson
County, Missouri. Each of them was seriously hurt when his sled crashed after having
been propelled into the air upon contact with a sloped terrace that was three or four feet
high. Each sued the United States under the Federal Tort Claims Act. See 28 U.S.C.
 § 1346(b)(1), §§ 2671-2680.

      Both lawsuits asserted a theory of "premises liability," that is, they claimed that
the plaintiff was injured by an unreasonably dangerous condition that existed on
property of the United States. After a bench trial, the court entered judgment for the
United States based on its findings that both Mr. Zanetello and Mr. Gould actually
knew, or in any event could reasonably have been expected to discover, the risk of
becoming airborne.

       Mr. Zanetello and Mr. Gould appeal. We affirm the judgment with respect to
Mr. Zanetello. With respect to Mr. Gould, we vacate the judgment and remand the
case for further proceedings not inconsistent with this opinion.

                                              I.
        Mr. Zanetello and Mr. Gould contend that the unreasonably dangerous condition
relevant in this case was the presence of the terrace and that the relevant risk was that
a person's sled could be propelled four to six feet high after crossing the terrace. That
risk is relevant, of course, only if it is what actually caused the plaintiffs' injuries.

      With respect to Mr. Zanetello, however, there was no evidence that he in fact
reached such a height. At trial, neither he nor either of his two sledding partners
estimated the height that he achieved, and the trial court found only that Mr. Zanetello

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"became airborne." The evidence was simply insufficient to support a conclusion that
Mr. Zanetello was injured after being propelled four to six feet in the air. We therefore
affirm the trial court's judgment for the United States with respect to Mr. Zanetello.

        With respect to Mr. Gould, David Gross testified that Mr. Gould achieved a
height of four to six feet. Adam Gross testified that Mr. Gould flew over his head,
although he could not remember if he was standing at that time, and further testified
that Mr. Gould "flew close to eight feet, somewhere around there, five to ten feet."
Although the matter is not entirely free from doubt, it seems evident that the trial court
believed David Gross's testimony that Mr. Gould achieved a height of four to six feet.
The trial court's decision relied substantially on Mr. Gross's testimony for the crucial
facts that the terrace was visible on the day of the accident, that Mr. Gross made a sled
run and went airborne prior to Mr. Gould's run, and that Mr. Gould's sled "lost contact
with the ground and flew a number of feet through the air." It thus appears to us that
the trial court credited Mr. Gross's testimony concerning the height Mr. Gould's sled
reached, and we therefore turn to a consideration of the Missouri law applicable to this
kind of case.

                                         II.
       In Wells v. Goforth, 443 S.W.2d 155 (Mo. 1969) (en banc), overruled in part on
other grounds, Rowe v. Farmers Insurance Company, Inc., 699 S.W.2d 423, 424-25
(Mo. 1985) (en banc), the Missouri Supreme Court stated that the principles applicable
to this kind of case are those outlined in § 342 of the Restatement (First) of Torts.
Missouri law imposes liability on a landowner when a licensee is injured on the owner's
land only if the owner had actual knowledge of a condition presenting an unreasonable
risk, and had a reason to believe that a licensee would not discover the condition or
realize the risk. See Restatement (First) of Torts § 342 at 932 (1934).

      The Missouri courts have held that landowners have no reason to believe that
open and obvious conditions or risks will not be discovered, and that landowners do

                                           -3-
have a reason to believe that conditions or risks will not be discovered if they are not
open and obvious. See, e.g., Vogt v. Dace, 762 S.W.2d 838, 841 (Mo. Ct. App. 1988),
and Birdsong v. Adolf, 724 S.W.2d 731, 734 (Mo. Ct. App. 1987). The risk, in the
ordinary case, is likely to be discovered when the relevant physical condition is open
and obvious. See Restatement (First) of Torts § 342, comment b, at 932. "[T]he fact
that the condition is obvious," so that a licensee could reasonably be expected to know
of or discover it, "is usually sufficient to apprise [a licensee], as fully as the possessor,
of the full extent of the risk involved in it." Id.

       Much of the Missouri case law deals with situations in which full knowledge of
the risk necessarily followed from an injured party's observation of a physical
condition. For example, the risk of injury is obvious when jumping or diving into a lake
from a cliff that is 70 feet high, Birdsong, 724 S.W.2d at 734, and the risk of being hit
by a falling ladder is obvious when the ladder is clearly unsecured, Fisher v. Northmoor
United Methodist Church, 679 S.W.2d 305, 305-06 (Mo. Ct. App. 1984). But these
cases cannot be read as creating a rule that a licensee's knowledge of a physical
condition is always enough to free a landowner from liability to a licensee; the
obviousness of the condition, as the Restatement notes, is only "usually" enough to
apprise the licensee of the risk.

       A frequently cited Missouri case, moreover, states that a dangerous condition is
open and obvious as a matter of law only if the injured party "should reasonably be
expected to discover it and realize the danger" (emphasis supplied). Harris v. Niehaus,
857 S.W.2d 222, 226 (Mo. 1993) (en banc). As a different section of the Restatement
recognizes, " 'knowledge' of the risk involved in a particular condition implies not only
that the condition is recognized as dangerous but also that the chance of harm and the
gravity of the threatened harm are appreciated." Restatement (First) of Torts § 340,
comment b, at 928 (1934); see also Restatement (Second) of Torts § 342, comment a,
at 210 (1965).


                                            -4-
         We do not believe that an appreciation of the risk involved in this case
necessarily followed from the obviousness of the physical condition. The question here
is not simply whether Mr. Gould knew of or could reasonably have been expected to
discover the terrace itself, or even the possibility of becoming airborne upon contact
with it, but whether he knew of or could reasonably have been expected to discover the
risk of flying four to six feet into the air -- a risk significantly different from the risk of
merely becoming airborne.

       Before Mr. Gould's own sled run, the trial court found, Mr. Gould had seen
David Gross achieve a height of "a couple of feet." There was no evidence, however,
that Mr. Gould saw anyone reach a height above four feet. According to the evidence,
therefore, the highest that Mr. Gould saw anyone fly was "a couple of feet." The
difference between "a couple of feet" and four to six feet is, we believe, both factually
material and legally significant. It seems clear to us that the risk associated with
achieving a height of four feet or more on a speeding sled is of a different order of
magnitude from the risk associated with achieving a height of a "couple of feet." A
reasonable person might well risk being propelled two feet high (or even slightly
higher) for the thrill of it, we think, but risking the injuries likely to result from going
up to six feet high would not, it seems to us as a matter of law, be the act of a
reasonable person. The evidence is that Mr. Gould did not know of, and, we hold,
could not reasonably have been expected to discover, the risk of being propelled more
than four feet high. Because this risk was not open and obvious, the Corps had a
reason to believe that Mr. Gould would not discover it.

        The trial court found that the Corps did not know of the risk that a sled could be
propelled up to six feet high. The only evidence at trial in this respect, however, was
from the park ranger responsible for the dam. He stated unequivocally that he had seen
sledders fly up to six feet in the air after hitting the terrace. We therefore hold that the
trial court's finding with respect to the knowledge of the risk by the Corps was clearly
erroneous.

                                             -5-
        Since the Corps did in fact know of the risk that injured Mr. Gould, since Mr.
Gould did not know of that risk and could not reasonably have been expected to
discover it, and since the Corps had a reason to believe that Mr. Gould would not
discover it, the Corps failed in its duty to take reasonable steps to protect Mr. Gould
from that risk. It is therefore liable for the injuries that the risk caused Mr. Gould.
Since we have no findings by the trial court, however, on the question of whether, or
to what extent, the risk that Mr. Gould faced caused his injuries, we remand the case
to the trial court for further proceedings on that issue. If the evidence presented to the
court does not prove by a preponderance of the evidence that Mr. Gould suffered
injuries attributable to the risk of being propelled four to six feet in the air, then the
Corps is entitled to judgment. In other words, Mr. Gould can recover only for such
injuries as would not have occurred but for the risk that he did not appreciate. If the
injuries were caused by a risk that he did appreciate, namely, the risk of being
propelled a "couple of feet" into the air, then he can recover nothing. Mr. Gould, as
plaintiff, of course bears the burden of proof on the issue of damages.

                                            III.
        For the reasons stated, we affirm the judgment of the trial court with respect to
Mr. Zanetello. With respect to Mr. Gould, we vacate the judgment and remand to the
trial court for further proceedings not inconsistent with this opinion.

      A true copy.

             Attest:

                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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