
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 96-1349                                    OSCAR MONTEJO,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Michaela A. Fanning with whom Gerald  T. Anglin and Tommasino  and            ___________________           _________________     ______________        Tommasino were on brief for appellant.        _________            John A. Capin, Assistant United States Attorney,  with whom Donald            _____________                                               ______        K. Stern, United States Attorney, was on brief for appellee.            ________                                 ____________________                                  February 10, 1997                                 ____________________                      PER CURIAM.   Plaintiff Oscar Montejo appeals  from                      PER CURIAM.                      __________            summary  judgment on  his Federal  Tort  Claims Act  case, 28            U.S.C.    2671 et seq., for injuries received in the Cape Cod                           __ ___            National Seashore  ("Seashore") when  the  motorcycle he  was            riding struck a steel cable road barrier.                       We  review the  district court's  grant of  summary            judgment de novo,  and using the  same criteria incumbent  on                     _______            the  district court, we review  the record in  the light most            favorable to  the  nonmoving party,  drawing  all  reasonable            inferences  in that  party's  favor.   MacGlashing v.  Dunlop                                                   ___________     ______            Equip. Co., 89  F.3d 932,  936 (1st Cir.  1996); Crawford  v.            __________                                       ________            Lamantia, 34 F.3d 28,  31 (1st Cir. 1994), cert.  denied, ___            ________                                   ____   ______            U.S. ___, 115 S. Ct. 1393 (1995); Garside v. Osco Drug, Inc.,                                              _______    _______________            895 F.2d 46, 48 (1st Cir. 1990).                                    I.  THE FACTS                                    I.  THE FACTS                                        _________                      The facts, viewed most favorably to  plaintiff, are            as  follows.  The Seashore consists of land owned entirely by            the  United States and is  part of the  national park system.            Administration  of  the  Seashore  is overseen  by  the  Park            Service,  a bureau  of the  United  States Department  of the            Interior.   At all relevant  times, the Seashore  was open to            the public without fee for recreational use.                      The Seashore  contains a fire road  system which is            both  accessible  ("Open   Roads")  and  restricted  ("Closed            Roads") to public motor vehicles.  Public motor vehicles have                                         -2-                                          2            limited  access to the fire road system and are restricted to            using  only  the  Open  Roads when  traversing  the  Seashore            grounds.  The only vehicles permitted to use the Closed Roads            of  the fire  road system are  authorized emergency  and Park            Service  vehicles.     All  other  motor  vehicles  including            motorcycles are  strictly prohibited  from entering  onto the            Closed Roads of the Seashore.                      The  Park  Service  has  a longstanding  policy  of            barring  access into the Closed Roads by placing a cable gate            at each entrance way.   Each cable gate consists  of a length            of  gray steel cable strung  and locked between  two posts on            each side of the fire road.  Only emergency  and Park Service            personnel  have keys that open  the gates.   The Park Service            has  a  policy  of  marking  each  gate  with  distinct  neon            streamers  and attaching  to  the gate  a sign  reading "FIRE            ROAD."  In addition, at each entrance way, a sign placed next            to the  gate proclaims "MOTORIZED VEHICLES  PROHIBITED."  The            Park  Service regularly  patrols the  fire roads  to inspect,            repair and replace vandalized or missing gates and signs.                      On  October  12,  1990,   plaintiff  was  riding  a            motorcycle at a decommissioned burn dump owned by the Town of            Provincetown.  A sign  posted on the public way  leading into            the  town dump  read  "MOTORCYCLE TRACK  ONLY[.]   ALL  OTHER            VEHICLES  TRESPASSING .  . .  [ILLEGIBLE] .  .  . USE  AT OWN            RISK."  Adjacent to the town dump is the Clapps  Pond area of                                         -3-                                          3            the Seashore which has  been closed to public  motor vehicles            for several decades.   There  are only four  points of  entry            along the boundary of Clapps Pond, all of which are barred by            cable gates.  The  accident occurred at the West  Clapps Pond            Road  point of entry which is located on the boundary between            the town dump and Clapps Pond.  No Park Service warning signs            were visible in the vicinity of this cable gate.                      It  was general knowledge  that motorcyclists using            the town  dump frequently crossed  into the Seashore  via the            West  Clapps  Pond Road  entrance  way.   During  plaintiff's            motorcycle  excursion, he  proceeded approximately  250 yards            into the Seashore along West Clapps Pond Road before making a            right-hand  turn into a dead-end intersection.  As soon as he            rounded  the bend,  plaintiff  briefly  glimpsed an  unmarked            cable gate  across his path.  The  cable gate was not clearly            visible because the dull gray color of the cable blended into            the  surrounding foliage.  There were no warning signs at the            side of  the gate or  on the cable  itself.  Unable  to stop,            plaintiff collided with  the cable  and was  thrown from  his            motorcycle.  As a result, plaintiff suffered serious injuries            to his  neck and  back and  was forced to  crawl to  a nearby            highway for assistance.                      The Park Service was first notified  of plaintiff's            injuries  on September 17, 1992, when it received a claim for            injuries filed by plaintiff's  attorney pursuant to 28 U.S.C.                                         -4-                                          4               2675.   Since  1968  and  prior  to  receiving  notice  of            plaintiff's injuries,  the  Park Service  had never  received            reports of injuries resulting from any motor vehicle accident            caused  by the  cable gates.   Plaintiff's claim  was denied.            Plaintiff  then  filed a  timely  complaint  in the  district            court.                                    II. APPLICABLE LAW                                  II. APPLICABLE LAW                                      ______________                      Under  the  Federal  Tort  Claims Act,  the  United            States  shall be liable  in a tort claim  "in the same manner            and to the  same extent  as a private  individual under  like            circumstances."  28 U.S.C.   2674.   In such tort claims, the            United States "would be liable  to the claimant in accordance            with  the  law  of  the  place  where  the  act  or  omission            occurred."  28 U.S.C.   1346(b).   See United States v. Varig                                               ___ _____________    _____            Airlines,  467  U.S. 797,  807-808  (1984);  Athas v.  United            ________                                     _____     ______            States,  904  F.2d  79, 80  (1st  Cir.  1990).   Because  all            ______            relevant  acts or  omissions upon  which plaintiff  bases his            claim occurred in Massachusetts,  the law of the Commonwealth            applies.                      Massachusetts  limits  the liability  of landowners            who  open their  property free  of charge  to the  public for            recreational  purposes.    At  the time  of  the  plaintiff's            injuries,   the  governing   section  of   the  Massachusetts            Recreational  Use Statute, Mass. Gen. Laws Ann. ch. 21,   17C            (West 1994), read as follows:                                         -5-                                          5                           An  owner  of land  who  permits the                      public to use  such land for recreational                      purposes without imposing a charge or fee                      therefor, .  . .  shall not be  liable to                      any member  of the public  who uses  said                      land  for  the  aforesaid   purposes  for                      injuries to person or  property sustained                      by him while on  said land in the absence                      of wilful, wanton or reckless  conduct by                         ___________________________________                      such  owner, nor shall such permission be                      deemed to confer upon any person so using                      said  land the  status  of an  invitee or                      licensee to  whom any duty would  be owed                      by said owner.            (Emphasis added).   The policy underlying  the statute is  to            encourage landowners  to open  up their land  to recreational            users by immunizing them  from potential negligence liability            resulting from such invitations.                        The  Massachusetts  Supreme Judicial  Court defines            wilful, wanton, or reckless conduct as: "intentional conduct,            by way either of commission  or of omission where there is  a            duty  to  act,  which  conduct  involves  a  high  degree  of            likelihood  that substantial  harm will  result to  another."            Manning  v. Nobile, 582 N.E.2d  942, 946 (Mass.  1991).  "Our            _______     ______            recent practice has been simply  to refer to reckless conduct            as constituting the conduct  that produces liability for what            the  court  has  traditionally  called  wilful,  wanton,   or            reckless conduct."  Sandler  v. Commonwealth, 644 N.E.2d 641,                                _______     ____________            643 (Mass. 1995).                      The facts in Sandler  are pertinent to the  case at                                   _______            bar.   Plaintiff  was injured  when he  fell off  his bicycle            while attempting to go through  a tunnel which was part of  a                                         -6-                                          6            bikeway along the Charles River.   The bikeway was controlled            and maintained by the Commonwealth.  The court found that the            jury  was  warranted in  finding  that  plaintiff's fall  was            caused  by an uncovered drain which was eight inches wide and            one foot in  length.  The drain, which was about eight inches            deep,  had  a  cover but  it  had  been  removed by  vandals.            Vandals  had   also  rendered   the  lights  in   the  tunnel            inoperative.  Id. at 642-43.                          ___                      There was evidence that the MDC (state agency) knew            of the dangers  but did  not respond reasonably.   There  was            also  evidence that it was feasible, at a reasonable cost, to            install  vandal-resistant  lighting  and   irremovable  drain            covers.   The court held:   "Nevertheless, the  degree of the            risk of injury  in this case does not meet  the standard that            we have established for recklessness."  Id. at 644.                                                     ___                       Massachusetts  courts apply a  two prong test when            distinguishing  "reckless conduct"  from negligence.   First,            the  defendant must  intentionally disregard  an unreasonable            risk, and second, the risk, viewed prospectively, must entail            a  "high degree  of probability  that substantial  harm would            result"  to  the plaintiff.    Sandler  v. Commonwealth,  644                                           _______     ____________            N.E.2d at 643; Manning v. Nobile, 582 N.E.2d at 946.                             _______    ______                      Plaintiff argues that Inferrera v. Town of Sudbury,                                            _________    _______________            575 N.E.2d 82 (Mass. App. Ct. 1991), supports  his contention            that the actions  of the Park  Service amounted to  "reckless                                         -7-                                          7            conduct."  In Inferrera, a snowmobiler died as a result of an                          _________            accident that  occurred when  his snowmobile collided  with a            steel cable strung  across a path leading into a  field.  The            Massachusetts  Appeals Court reversed the trial court's grant            of  summary judgment  for the  defendants after  finding that            inferences existed  which a reasonable juror  might draw upon            to  determine  that stringing  a  cable  across  a  path  was            reckless.  The Massachusetts Appeals Court ruled that an                       actor's conduct is in  reckless disregard                      of the  safety of  another if he  does an                      act  . .  . knowing  or having  reason to                      know   of  facts   which  would   lead  a                      reasonable man to realize, not  only that                      his conduct creates an  unreasonable risk                      of  physical harm  to  another, but  also                      that such risk  is substantially  greater                      than that which is  necessary to make his                      conduct negligent.            Id. at 85.              __                      Although Inferrera is superficially similar  to the                               _________            one at  hand, it  is readily  distinguishable.   One critical            distinction  involves the  actual installation  of the  cable            gate.  The defendant in Inferrera intended to and did install                                    _________            the  cable gate without marking  it.  The  court in Inferrera                                                                _________            noted that the defendant "had not ordered anything to be hung            on the  cable to make  it 'more visible.'"   Id. at 84.   The                                                         __            Park  Service,  on the  other  hand,  implemented a  practice            spanning   several  decades   of  inspecting,   marking,  and            repairing the cable gates.   There is no indication  that the            Park Service intentionally  disregarded the cable gate  risk.                                         -8-                                          8            Another important distinction  involves the  manner in  which            the cable gates were set up.  The cable gate in Inferrera was                                                            _________            installed haphazardly in a makeshift arrangement between  two            trees.  In  the case at  bar, the cable gates  were installed            between carefully placed posts in accordance with a specially            laid out road-access plan.  Finally, in Inferrera,  the cable                                                    _________            gate was the only one installed by the Town, and there was no            notice by the Town of  the installation of the gate.   In the            case  before  us,  the  cable  gates  of  the  Seashore  were            installed  throughout the  park  several  decades  beforehand            according to a carefully laid out plan, thus engendering some            awareness that  the Park Service  had installed a  cable gate            system.   In fact, plaintiff  concedes that he  knew that the            Park  Service had  cable gates  set up  within the  Seashore.            Based  on  these important  distinctions,  we  find that  the            ruling of Inferrera  does not extend  to the situation  here.                      _________            We have considered all of  the contentions made by  plaintiff            and find them unavailing.                                   III.  CONCLUSION                                   III.  CONCLUSION                                         __________                      Based upon our review  of the Massachusetts statute            and  the cases  interpreting it,  we find  that there  was no            reckless conduct  by the  employees of the  Seashore National            Park.   The  judgment of  the district  court is,  therefore,            affirmed.  No costs.            affirmed.  No costs.            _________  _________                                         -9-                                          9
