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
WILLIAM P. GRAY, District Judge,
dissenting:
I agree with the district court that the Government was entitled to immunity under the Nevada Recreational Use Statute and therefore would affirm the judgment rendered by the trial court.
We start with the proposition that a person is welcome to make use of the wilderness areas of the United States, but that he does so at his own risk with respect to the hazards of the terrain and the elements. If the Government, or another owner, were to be exposed to liability if it fails to warn each such user of any potential danger from flooding or fire or avalanche, such areas doubtless would be placed off limits, to the great disadvantage of people that enjoy using them.
The burden of loss for the unfortunate deaths here concerned must lie where it falls, unless there is a valid reason to place it elsewhere. The Nevada statute attempts to recognize this problem and establish a reasonable balance of considerations: An owner of land that is willing to permit others the use of it for recreational purposes is freed from liability unless he requires a “consideration” for “permission ... to participate in ... recreational aetiv *518 ities.” I read the statute to mean quite clearly that the owner is exempt from liability unless he charges a fee for granting permission to participate in these recreational activities. Thus, I think that the attempt in the opinion to impose liability upon the owner in the event any transaction for consideration takes place while a person is on the property imposes a burden that is not intended by the statute. I cannot believe that the fact that the decedents may have bought coffee or a candy bar or paid a fee for a place to park a trailer should be allowed to negative the fact that they were given free access to the area.
In light of the foregoing, I am obliged respectfully to note my dissent.