University of Vermont AAHS

VanDerVelde v. United States of America


U.S. District Court, Wyoming
1999 WL 33593713
February 1, 1999


Summary of Opinion


Plaintiff VanDerVelde was cross-country skiing on Forest Service land on groomed trails free of charge when a U.S. government vehicle was parked at the foot of the exit hill from the trail system on the access road.  Swerving to miss the truck, plaintiff collided with trees and injured himself.  He sued the federal government under the tort claims act.  The government claimed two defenses: it was not liable under the Wyoming recreational use statute and it was not liable under the Wyoming recreational safety act.


In this trial court opinion, the court rejects both defenses.  While the recreational use statute applies to this case since defendant did not charge for use of the trails, the action that caused the injury—parking the truck to block the trail exit—is not covered by the statute.  The only possible theory under this statute is that plaintiff was injured by another person using the land, but that clearly refers to other recreational users of the land, not to employees of the land owner.  The recreational safety act also applies, but does not bar this lawsuit because it is not clear at this time that the accident resulted from an inherent risk of the sport of cross-country skiing.  That is a question for a jury to decide.


Text of Opinion


This matter is before the Court on Defendant's Motion for Summary Judgment. After hearing oral arguments and reading the parties' briefs, the Court FINDS and ORDERS as follows:




 Plaintiff Marc VanDerVelde brought this action against the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U .S.C. §§ 2671‑ 2680, for damages he suffered as a result of a cross‑country skiing accident. Plaintiff's wife, Irma VanDerVelde, also brought an action under FTCA for loss of consortium. The circumstances surrounding the accident are as follows:


 On January 10, 1996, Plaintiffs were cross‑country skiing at the White Pine Ski Area in Sublette County, Wyoming. The White Pine Ski area is owned by the United States and managed by the United States Forest Service ("USFS"). The cross‑country ski trails are open to the public free of charge.


 Mark VanDerVelde, an experienced cross‑country skier, frequently skied the trails at the White Pine Ski Area. On January 10, 1996, he was skiing with his wife at White Pine on a groomed trail. The particular trail upon which Mr. VanDerVelde and his wife were skiing exited directly onto Skyline Drive, the only access road into the ski area. In the winter, Skyline Drive is plowed for approximately 275 feet beyond the exit of the groomed trail. The end of the plowed road doubles as a turnaround and parking area.


 As Mr. VanDerVelde was skiing down the hill immediately above the egress to the groomed ski trail, a Bureau of Land Management employee pulled up and parked a pickup truck and trailer directly in front of the trail's exit. Mr. VanDerVelde, on a downhill slope and unable to stop, tried to avoid the truck. VanDerVelde skied into some trees and eventually came to a stop, but was injured in the process. Mrs. VanDerVelde was not injured.


 By letter dated July 2, 1997, Mr. VanDerVelde submitted a tort claim to the Bureau of Land Management. Mrs. VanDerVelde did not submit an accompanying administrative claim for loss of consortium.


 Defendant brings its Motion for Summary Judgment on Mrs. VanDerVelde's claim for loss of consortium alleging lack of jurisdiction. Defendant moves for summary judgment on Marc VanDerVelde's tort claims on grounds that two Wyoming statutes, the Recreational Use Statute and the Recreational Safety Act, bar the instant action against Defendant. The Court will address each argument in turn.


Summary Judgment Standard


 Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The adverse party must set forth specific facts showing that there is a genuine issue for trial. A factual issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). When applying this standard, the court must examine the factual record and reasonable inferences drawn therefrom in the light most favorable to the non‑moving party. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996).




 A. Irma VanDerVelde's Loss of Consortium Claim is Barred


 Defendant contends that because Irma VanDerVelde failed to file an administrative claim within the two‑year limitations period, her current loss of consortium claim under the FTCA is jurisdictionally barred. To maintain an FTCA action, a claimant must file an administrative claim with the appropriate federal agency. 28 U.S.C. § 2675(a). Filing an administrative claim is a jurisdictional prerequisite to bringing a civil action, such as this, against the United States. See Industrial Constructors v. Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir.1994). If the administrative tort claim has not been presented in writing to the appropriate federal agency within two years of the claim's accrual, an FTCA action is barred. 28 U.S.C. § 2401(b).


 Mrs. VanDerVelde never filed a claim with any administrative agency within two years of her husband's accident. Indeed, Plaintiff concedes that her claim is barred under FTCA. Consequently, Defendant's Motion for Summary Judgment on this issue is GRANTED and Mrs. VanDerVelde's loss of consortium claim is DISMISSED WITH PREJUDICE.


 B. Marc VanDerVelde's Negligence Action Must Be Maintained


 Defendant contends that the Wyoming Recreational Use Statute ("RUS") and the Wyoming Recreational Safety Act ("RSA") bar recovery for Mr. VanDerVelde's negligence claim. The Court will discuss the applicability of each statute in turn.


 1. The Recreational Use Statute


 Defendant contends that because RUS indicates that the United States had no duty to keep the White Pine Ski Area safe for cross‑country skiing, Mr. VanDerVelde's suit is barred.


 As an initial matter, however, the Court must determine whether Wyoming law applies to this suit, which was brought under the FTCA, a federal statute. According to 28 U.S.C. § 1346(b), the substantive law of the state where the alleged negligent activity occurred applies to FTCA cases. Thus, because Defendant's allegedly negligent activity occurred in Wyoming, Wyoming law applies.


 RUS provides:


Except as specifically recognized or provided in W.S. 34‑19‑105, [FN2] 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 such premises to persons entering for recreational purposes.


Except as specifically recognized by or provided in W.S. 34‑19‑105, an owner of land who either directly or indirectly invites or permits without charge any person to use the land for recreational purposes or a lessee of state lands does not thereby:

(i) Extend any assurance that the premises are safe for any purpose;

(ii) Confer upon the person using the land the legal status of an invitee or licensee to whom a duty of care is owed;

(iii) Assume responsibility for or incur liability for any injury to person or property caused by an act of [sic] omission of the person using the land.


Wyo. Stat. Ann. §§ 34‑19‑102, 103(a) (Michie 1998).


FN2. Section 105 of the statute eliminates the bar against liability only for a landowner who charges for the recreational use of his land or who acts wilfully or maliciously. Because the United States made the White Pine Ski area available free of charge, Section 105 does not apply to the instant action.


 Although RUS is meant to limit the liability of landowners who permit recreational use of their lands without charge, neither § 102 or § 103(a) of RUS applies to the case at bar. Mr. VanDerVelde is not claiming that some defect in the land or dangerous activity conducted upon the land caused his injury; if he were, then RUS might apply. For example, if VanDerVelde sued the United States because it negligently maintained the groomed trail, negligently designed the trail exit to abut a road, or failed to warn of the possibility of traffic on Skyline Drive, the Court would likely apply § 34‑19‑102 of the Wyoming RUS. In this case, however, § 102 of the statute does not shield the defendant from liability.


 The case law Defendant cites does not persuade the Court to the contrary. For example, Newberry v. Board of County Commissioners, 919 P.2d 141 (Wyo.1996), addressed an entirely different set of facts than those currently before the Court. In Newberry, a motorist sued the county when he drove his vehicle off a washed‑out trestle on a recreational trail made from an abandoned railroad line. Id. at 143. The motorist alleged negligence in the operation and maintenance of the railroad right‑of‑way. Id. The Fremont court indicated that RUS would have barred the action if the landowner had been a private entity. Id. at 145. However, the Plaintiff in that case brought an entirely different cause of action than VanDerVelde. Plaintiff Fremont alleged negligent maintenance of a trail‑a claim that squarely falls within the statute's purview of owing no duty to keep the premises safe for other's use. On the other hand, Plaintiff VanDerVelde alleges that a specific action of Defendant's employee was negligent‑there is no mention of negligent maintenance of the premises or a failure to warn. For similar reasons, the other cases mentioned by Defendant fail to apply to the instant action. [FN3]


FN3. Curiously, none of the courts in cases cited by Defendant even applied RUS. See, e.g., Holland v. Weyher/Livsey Constructors, Inc., 651 F.Supp. 409 (D.Wyo.1987); Yalowizer v. Husky Oil Co ., 629 P.2d 465 (Wyo.1981).


 Likewise, the Court finds that § 103(a) of RUS does not apply to this action. First, § 103(a) is inapplicable because Defendant's employee was not using the land for "recreational" purposes. The statute only shields a landowner from liability for the actions of a person who uses the land for "recreational purposes." It is undisputed that Defendant's employee was at the White Pine Ski area on official business, namely, snowmobile training. Because he was not using the land for "recreational purposes," § 103(a) does not apply.


 Second, the statute does not apply because the "person using the land" and the "landowner" are one in the same. The intention of section 103(a)(iii) was to shield a landowner from the actions of a third‑party recreationalist if that recreationalist injured another party upon the landowner's land. For example, say Landowner "L" let Snowmobiler "S" use L's land for recreation and S subsequently ran over Cross‑Country Skier "C". Section 103(a) would prohibit C's cause of action against L, but not against S. However, if L herself negligently ran over C, Section 103 would be inapplicable because C's injuries were not caused by a third‑party "person using the land," they were caused by the landowner. According to the plain language of the statute, the "owner of land" and the "person using the land" cannot be the same entity, as they are in the case at bar. The statute just doesn't apply to the situation presented in this case.


 Consequently, the Court finds as a matter of law that RUS does not apply to the instant action. Defendant's Motion for Summary Judgment based on the Wyoming RUS is DENIED.


 B. The Recreational Safety Act


 Defendant also argues that Mr. VanDerVelde's cause of action is barred by RSA, Wyo. Stat. Ann. §§ 121‑123. Defendant contends that Mr. VanDerVelde's injuries, if any, resulted from the inherent risks of cross‑country skiing. The RSA provides, in pertinent part:


(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risk of injury and all legal responsibility for damage, injury or death to himself ... that results from the inherent risks in that sport or recreational opportunity.

(b) A provider of any sport or recreational activity, is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.


Wyo. Stat. Ann. § 1‑1‑123 (Michie 1996).


 A "provider" is "any person or governmental entity which for profit or otherwise, offers or conducts a sport or recreational opportunity; cross‑ country skiing is included in the definition of "sport or recreational opportunity." Wyo. Stat. Ann. § 1‑1‑122(a)(ii), (iii). At the time this accident occurred, the RSA defined an "inherent risk" as "any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot reasonably be eliminated, altered or controlled."  [FN4] Wyo. Stat. Ann. § 1‑1‑122(a)(i) (Michie 1996).


FN4. The RSA was amended effective July 1, 1996.


 In order to recover in this negligence action, Mr. VanDerVelde must show that Defendant owed him a duty of care. See, e.g., Roybal v. Bell, 778 P.2d 108, 111 (Wyo.1989). If Defendant owed Mr. VanDerVelde no duty, there can be no breach of that duty and no recovery of damages. The RSA provides that if Mr. VanDerVelde was injured due to an "inherent risk" of cross‑country skiing, Defendant owes him no duty of care. However, if Mr. VanDerVelde's injury is due to some other risk, a risk not "inherent" to cross‑country skiing, the RSA no longer applies. In essence, if the risk is not "inherent," Defendant owes Mr. VanDerVelde a duty of care and VanDerVelde can sustain a negligence cause of action.


 The question then would move to whether Defendant breached its duty and whether the breach caused Mr. VanDerVelde's damages. The extent to which Mr. VanDerVelde contributed to his own injuries would also enter the picture. However, in an analysis under RSA, the Court needs only to concern itself with whether Mr. VanDerVelde was injured due to an "inherent risk" of the sport of cross‑country skiing.


 The Court recognizes that the question of duty is generally one of law for the court. Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo.1995). However, in certain instances, the issue of duty with regard to a particular activity involves questions of fact. See id. Whether a risk is inherent to a particular activity is often a question of fact more properly presented to a jury than decided by a court on summary judgment. [FN5] Id. at 566.


FN5. This does not mean that every case arising under RSA must go to a jury. The Halpern court noted that "in appropriate cases where no genuine issues of material fact exist," a court may decide as a matter of law that the provider owed no duty to the participant. 890 P.2d at 566.


 The Wyoming Supreme Court case of Halpern v. Wheeldon is instructive. In Halpern, the plaintiff sued for injuries he suffered when the horse he was trying to mount bucked and threw him to the ground. The Wyoming Supreme Court found that genuine issues of material fact existed as to (1) whether getting bucked from a horse was an intrinsic risk to the sport of horseback riding and (2) whether the defendant could have "reasonably altered, eliminated, or controlled those risks." Id. at 566.


 If the Wyoming Supreme Court determined that the seemingly straightforward circumstances in Halpern‑getting bucked off a horse‑presented issues of fact that warranted reversal of a grant of summary judgment, the more complex circumstances of the case at bar certainly present an issue of fact. In the instant case, Plaintiff was skiing down a groomed trail that abutted a road. Defendant allegedly parked his truck, not on the trail, but in a manner that blocked the trail's exit. Plaintiff did not collide with the truck, but collided with some trees as he altered his path to avoid the truck.


 In light of the Halpern decision, the Court will not say, as a matter of law, that Plaintiff's injuries were caused by an "inherent risk" of cross‑ country skiing. The RSA does not provide the Court with a checklist of risks that are inherent to sports. If it did, the Court would feel justified in determining, as a matter of law, that VanDerVelde's injuries were, or were not, caused by an inherent risk. However, the intricate details of the case at bar and the reasoning of the Halpern decision compel the Court to find that there is a genuine issue of material fact whether Plaintiff's accident was caused by an inherent risk of cross‑country skiing and thus, whether Defendant owed Plaintiff a duty of care. Defendant's Motion for Summary Judgment on the basis of the Wyoming RSA is thus DENIED.




 For the foregoing reasons, Defendant's Motion for Summary Judgment on Plaintiff Irma VanDerVelde's claim for loss of consortium is GRANTED. Mrs. VanDerVelde's claim is DISMISSED WITH PREJUDICE. Defendant's Motion for Summary Judgment on Plaintiff Marc VanDerVelde's negligence claim is DENIED in its entirety.

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