Opinion

Carolyn L. Ducey v. United States of America, Lois M. Olson v. United States of America, Helen Grugel v. United States

  • 713 F.2d 504
Court
Court of Appeals for the Ninth Circuit
Filed
Oct 27, 1983
Status
Published
Author
Skopil
On the bench
Skopil, Fletcher, Gray
Cited by
70 cases
Authority
More cited than 25.3%

holding that, under the Federal Tort Claims Act, a negligent omission should be deemed to occur “where the act necessary to avoid negligence should have occurred”

How later courts described this case

  • holding that, under the Federal Tort Claims Act, a negligent omission should be deemed to occur “where the act necessary to avoid negligence should have occurred”
  • finding the government may be liable where it exercises 3 “substantial supervision over the day-to-day operations of the contractor”
  • Because the recreational use statute limits common law tort liability, the *618 consideration exception “must be given the broadest reading that is within the fair intendment of the language used.”
  • Because the recreational use statute limits common law tort liability, the consideration exception "must be given the broadest reading that is within the fair intendment of the language used."

Written by the judges who cited it.

The opinion

SKOPIL, Circuit Judge,

specially concurring:

I concur in the reasoning of our majority opinion authored by Judge Fletcher. I write separately to emphasize that the language of the Nevada recreational use statute compels this decision. Language in other state recreational use statutes, however, does not impose liability on the United States. E.g., Jones v. United States, 693 F.2d 1299, 1303-04 (9th Cir.1982) (Washington recreational use statute). The Federal Torts Claims Act exception to sovereign immunity depends on application of state law. FTCA claims based on state recreational use statutes will thus continue to yield the disparate results shown in the cases surveyed in our opinion.

It is difficult to imagine that Congress, in passing the Federal Torts Claims Act, envisioned liability of the United States for injuries during recreation on the public lands. Nevertheless, the FTCA permits no other result when the Nevada recreational use statute is applied. If the liability of the United States is to be based on a uniform policy rather than the vagaries of individual state recreational use statutes, congressional action is definitely required.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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