WINEBRENNER v. U.S.

5:04-0376.

389 F.Supp.2d 716 (2005) | Cited 1 time | S.D. West Virginia | September 28, 2005

REVISED MEMORANDUM OPINION AND ORDER

Before the court is the defendant's motion for summaryjudgment. For the reasons detailed in this opinion and order,defendant's motion is GRANTED.

I. Introduction

The plaintiff filed this action on April 19, 2004, seekingdamages for an injury sustained while swimming in Lake Sherwoodat Monongahela National Forest. The plaintiff alleges that he wasinjured on June 20, 2002, by the "reckless, careless, andnegligent placement of concrete metal anchors which protrudedabove the floor of the public swimming area of Lake Sherwood."See Complaint at 2. The defendant denies the allegations andasserts that West Virginia's Recreational Use Statute, W. Va.Code Ann. § 19-25-1, et seq., shields it from liability and thatthe plaintiff cannot demonstrate proximate cause.1 SeeDefendant's Motion for Summary Judgment (Doc. No. 32). On June 20, 2002, the plaintiff and several members of hisfamily drove to Lake Sherwood to enjoy a day of swimming at thepark. See Plaintiff's Memorandum in Opposition to SummaryJudgment (Doc. No. 37) at 3. Upon arriving at the park, theplaintiff was charged a $3.00 fee for the car he was driving.Id. at 14. After parking, the plaintiff and his family membersproceeded to wade into the lake to the left of the designated"kiddie" swimming area. Id. at 4.2 The plaintiffreturned to the shore to drop off his mother's watch and hisring. Deposition of Darren Winebrenner at 16. The plaintiff thenproceeded to reenter the water to the left of the kiddie swimmingarea. Id. at 16-17. After entering a short distance into thelake, the plaintiff felt pain in his lower right leg afterhitting his foot on something and fell into the water. Doc. No.37 at 4-5. The plaintiff required medical treatment for hisinjuries. Id. at 6.

II. Standard for Summary Judgment

Turning to the issue of summary judgment, Rule 56 of theFederal Rules of Civil Procedure provides that [t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.Fed.R.Civ.P. 56 (2003). The moving party has the burden ofestablishing that there is no genuine issue as to any materialfact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party has met this burden, the burden thenshifts to the nonmoving party to produce sufficient evidence fora jury to return a verdict for that party.

The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find, by a preponderance of the evidence, that the plaintiff is entitled to a verdict. . . .Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "Ifthe evidence is merely colorable, or is not significantlyprobative, summary judgment may be granted." Id. at 250-251.Finally, "[o]n summary judgment the inferences to be drawn fromthe underlying facts . . . must be viewed in the light mostfavorable to the party opposing the motion." United States v.Diebold, Inc., 369 U.S. 654, 655 (1962).

III. Analysis

The United States is immune from suit unless it gives consentto be sued. United States v. Sherwood, 312 U.S. 584, 586-87(1941). The Federal Tort Claims Act ("FTCA") provides a limitedwaiver of sovereign immunity, stating "The United States shall be liable, respecting the provisions of this title relatingto tort claims, in the same manner and to the same extent as aprivate individual under like circumstances. . . ." See28 U.S.C. § 2674. West Virginia has a recreational use statute("RUS") which provides limited immunity to persons who open theirland for recreational purposes. See W. Va. Code Ann. § 19-25-4.That statute, in conjunction with the FTCA, has been held toshield the United States from liability to the same extent as aprivate individual. See Cox v. United States,827 F. Supp. 378, 383 (N.D.W.V. 1992). The United States argues that it isprotected by the RUS under the facts of this case. See Doc. No.32 at 2. Plaintiff Winebrenner asserts that one or both of theexceptions to the statute's immunity provision applies in thismatter. See Doc. No, 37 at 11.

West Virginia's statute provides in part: [Subject to enumerated exceptions], 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 or hazardous condition, use, structure or activity on such premises to persons entering for such purposes. . . . [A]n owner of land who either directly or indirectly invites or permits without charge [defined in the act], any person to use such property for recreational . . . purposes does not thereby: (a) extend any assurance that the premises are safe for any purpose; or (b) confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or (c) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.See W. Va. Code Ann. § 19-25-2. The act provides two exceptionsto its general exclusion for liability: (1) "For deliberate,willful, or malicious infliction of injury to persons or property; or (b) for injury suffered in any case where the ownerof land charges the person or persons who enter or go on theland." See W. Va. Code Ann. § 19-25-4. The statute definescharge as "the amount of money asked in return for an invitationto enter or go upon the land." See W. Va. Code Ann. § 19-25-5.The plaintiff argues that both exceptions are applicable here.This court disagrees.

A. Charge

It is undisputed that the plaintiff and his family paid a $3.00fee that was assessed upon each car that entered the park. SeeDoc. No. 37 at 14. The plaintiff argues that this fee equates toa "charge" under West Virginia's RUS. Id. at 14-15. The UnitedStates argues that the fee is merely a parking charge and is notthe type of entrance fee contemplated by the statute. SeeMemorandum in Support of Defendant's Motion for Summary Judgment(Doc. No. 33) at 15-16.

The court finds that the $3.00 fee is a parking fee and not ageneral entrance fee. There is deposition testimony in this casethat the $3.00 fee was levied per car and not per passenger inthe car. See Deposition of Rondi Fischer at 29; Deposition ofDarren Winebrenner at 12. There is also testimony that anindividual who entered the park on foot or on bicycle did not paythe $3.00 fee. See Deposition of Rondi Fischer at 29. Those whoenter on foot or bicycle are entitled to the same use of the parkas those who arrive by car and pay the $3.00 parking fee. Id.at 33. The plaintiff implies that because of the distance of thepark from a main road, the parking fee was a de facto entrancefee. See Doc. No. 37 at 16. Plaintiff's argument does notaccount for the fact that the fee is only charged per car and notper individual in the car. See Deposition of Rondi Fischer at29 ("Q. It didn't matter if you had a car with two, five, ten orwhatever number. . . . Is that correct?" "A. Correct."). Thecourt finds that a fee charged per car and not per passenger andthat is not charged to those arriving on foot or by bicycle is aparking fee and not a general entrance fee.

Having determined that the $3.00 fee was purely a parking feeand not a general entrance fee, the inquiry is then whether thisequates to a "charge" under the RUS. West Virginia has notaddressed the question of parking fees in relation to theliability exclusion under its RUS. Most jurisdictions that haveaddressed this issue, however, have held that a parking fee doesnot invoke the "charge" exception to that state's respective RUSliability exclusion. See Hall v. United States, 2003 WL1877593, 2:02cv00096, at n. 2 (W.D. Va. 2003) (noting that thecase could be dismissed for lack of subject matter jurisdictionunder Virginia's RUS because the $3.00 fee "was charged `pervehicle' and visitors who hiked to the area were not required topay the fee [thus] the fee was not `for use of the premises'");Cole v. South Carolina Electric & Gas, Inc., 362 S.C. 445,449-51 (holding that a $3.00 parking fee was not a "charge",defined as "the admission price or fee asked in return forinvitation or permission to enter or go upon the land"); Hanley, et al. v.State, 837 A.2d 707, 714 (R.I. 2003) (holding that camping andparking fees were not a "charge", defined as "the admission priceor fee asked in returned for invitation or permission to enter orgo upon the land"); Majeske v. Jekyll Island State ParkAuthority, 209 Ga. App. 118, 119-20 (holding that a $1.00parking fee charged per vehicle was not a "charge," defined inthe RUS as "the admission price or fee asked in return forinvitation or permission to enter or go upon the land").

In a case analogous to the situation here, the Kentucky Courtof Appeals held that a $2.00 parking fee levied per car and notper motorist was not a "charge" within the meaning of thatstate's RUS. See City of Louisville v. Silcox,977 S.W.2d 254, 257 (Ky.App. 1998). The statute in that case defined"charge" as "the admission price or fee asked in return forinvitation or permission to enter or go upon the land." Id. at256 (citing Ky. Rev. Stat. § 411.190(1))(d)) compare with W.Va. Code Ann. § 19-25-5 (defining "charge" as "the amount ofmoney asked in return for an invitation to enter or go upon theland"). That court stated that when a fee is "levied per vehiclewithout regard for the number of people inside and no fee ischarged to those entering by other means . . . mere payment of aper-vehicle fee to enter and park . . . does not destroy theimmunity granted by the statute." Id. at 256. As in Silcox,the $3.00 fee in this case was charged per vehicle irrespectiveof the number of passengers and it was the policy of the parkthat those arriving by means other than a motorized vehicle were not charged any fee.See Deposition of Rondi Fischer at 29, 33. This court agreeswith the other courts that have held that a parking fee is notthe equivalent of an entrance fee as contemplated by the term"charge" as defined in the various RUS's. No reason is perceivedwhy West Virginia's highest court, if asked to decide this issue,would not follow the great weight of authority from otherjurisdictions.

The plaintiff argues that the facts of this case are differentfrom the other parking fee cases because the United States ForestService designates Lake Sherwood as a "charge" area. See Doc.No. 37 at 13-14. The court finds this argument unavailing. Thedefinition of "charge" for purposes of West Virginia's RUS is alegal determination. The statute defines "charge" internally. Asnoted above, numerous states that have addressed RUS with nearlyidentical definitions of "charge" have determined that thedefinition does not encompass per-vehicle parking fees. Seesupra at 7-8. On the other hand, there is no evidence that theUnited States Forest Service was using the phrase "charge area"in relation to the RUS. Nothing in the literature that designatesLake Sherwood as a "charge area" mentions any RUS. SeeDeposition of Jim Miller, Ex. 2. Therefore, this court findsplaintiff's argument unpersuasive.

Plaintiff also suggests that West Virginia has a more liberalinterpretation of "charge" than the states that have addressedparking fees in relation to RUS. See Doc. No. 37 at 14-15. Plaintiff's reliance on Kessner v. Trenton,158 W. Va. 992 (1975), is unconvincing. Kessner involved a lawsuit overdrowning deaths at a marina in which the owner of a marina andboat dock did not directly charge users a fee to swim in the lakebut did operate related for-profit businesses at the marina. SeeKessner, 158 W. Va. At 999-1000 (noting that the defendantsoffered rental slips for boats and both rented and sold boats tothe public).

The court in Kessner did not hold that any money thatexchanged hands constituted a "charge" under the statute. Rather,the court placed emphasis on the "money-making" aspect of theventure and the expectation that inviting people to the marinafree of charge would increase sales and profit at the for-profitbusinesses. Id. at 1004-05. In fact, the court noted that theplaintiff was in line at the boat rental stand at the time theinjury occurred. Id. The West Virginia Supreme Court reasonedthat the increased sales and rentals the defendant would enjoy byallowing people to swim free of charge was a sufficient "charge"to remove the liability protection afforded by the RUS. Id.Here, there was no similar profit motive or marketing strategy toincrease sales at the park. The facts of this case are morealigned with those cases on parking fees than with the facts ofKessner. This court believes that the court in Kessner wasswayed by the profit-making aspect of the marina and therelationship that the free swimming had in potentially increasingsales in the other aspects of the venture in that case. As that relationship is not present in this case, this court findsplaintiff's comparison to Kessner unconvincing. Accordingly,this court finds that the charge exception to the liabilityimmunity provision of West Virginia's RUS does not apply in thiscase.

B. Deliberate, Willful, or Malicious

The plaintiff also argues that the exception to the RUS for"deliberate, willful, or malicious infliction of injury" appliesin this case. See Doc. No. 37. The defendant argues in itsmotion for summary judgment, however, that the plaintiff failedto allege any deliberate, willful, or malicious action in thecomplaint. See Doc. No. 33 at 15; see also Complaint. Theplaintiff asserts that the term "reckless," used in thecomplaint, is a synonym for deliberate, willful, or malicious.See Doc. No. 37 at 11-12 (asserting that reckless negligencecan also be gross negligence which can encompass deliberate,wilful, or malicious infliction of injury). This court questionswhether the number of leaps of logic necessary to move from"reckless" to deliberate, willful, or malicious infliction ofinjury was sufficient to put the defendant on notice of thisclaim. In the exercise of an abundance of caution, however, thiscourt will construe the term "reckless" as asserting a theory ofdeliberate, willful, or malicious infliction of injury.Nevertheless, this court finds that the defendant's conduct inthis case does not rise to a level sufficient to trigger thedeliberate, willful, or malicious exception from the liabilityexclusion. This court has been unable to find any cases in which a courtin West Virginia or within the Fourth Circuit Court of Appealshas defined "deliberate, willful, or malicious" as used in WestVirginia's RUS. Black's Law Dictionary defines deliberate as"intentional; premeditated; fully considered." See Black's LawDictionary, 8th Ed. (2004). Willful is defined as "voluntary andintentional, but not necessarily malicious"; and malicious injuryis defined as "an injury resulting from a willful act committedwith knowledge that it is likely to injure another or withreckless disregard of the consequences." Id. A commonalitybetween all three words is some degree of intention andknowledge. West Virginia has defined "willful negligence"standing alone. In Stone v. Rudolph, 32 S.E.2d 742 (W. Va.1945), the court stated that willful negligence does not require"that there should be ill will toward the person injured; but anentire absence of care for the safety of others, which exhibitsindifference to the consequences. . . ." Stone,32 S.E.2d at 748 (citing Todorobak v. McSurley, 148 S.E. 323 (W. Va. 1929)).

The plaintiff argues that this case is on all fours withDenham v. United States, 834 F.2d 518 (5th Cir. 1987).See Doc. No. 37 at 12-13. In Denham, the plaintiff wasinjured when he dove from knee-deep water into waist-deep waterand hit his head on concrete anchors at a lake owned by theUnited States. Denham, 834 F.2d at 519. The Fifth Circuit Courtof Appeals upheld the district court's finding that the UnitedStates' conduct fell outside of that conduct protected by the RUSin Texas. Id. at 522-23. The court affirmed the finding ofliability against the United States.

The plaintiff asserts that the reasoning in Denham wouldresult in a finding that the willful, deliberate, or maliciousexception to the liability exclusion applies in this case. Thiscourt disagrees. There are several important distinctions betweenthe Denham case and the matter before this court. First, theFifth Circuit placed great importance on the fact that the buoysattached to the anchors had become detached and the United Statesknew that the buoys had detached on more than one occasion. Id.Nevertheless, the United States left the unattached anchors inthe swimming area. Id. at 522. Additionally, the amount of theanchor above the surface of the lake floor was significant. Id.(noting that the anchors would occasionally protrude above thewater line). Moreover, the standard of care applied in Denhamwas lower than that required in West Virginia even though thestatutory language is similar. The Fifth Circuit interpreted thedeliberate, willful, or malicious injury" language in Texas's RUSto encompass gross negligence under Texas law. Id. at 521. WestVirginia, however, has held that "[w]illful negligence is agreater degree of negligence than gross." See Stone32 S.E.2d at 749 (citing Turk v. Norfolk & W. Railway Co., 84 S.E. 569,570)). Therefore, West Virginia would interpret the statutorylanguage "deliberate, willful, or malicious injury" as requiringa higher degree of negligence than do the Texas courts. In contrast to the facts of Denham, there is no evidence inthis case that the anchors were ever separated from the buoys.The presence of the buoys would alert a swimmer to the fact thatsomething was holding them in place under the water. Moreover,the amount of anchor that was above the floor of the lake wasonly "six inches." See Deposition of James Miller at 8. Also,significantly, there is no evidence of any reports of injuriesfrom the buoy and anchor system at Lake Sherwood that would putthe defendant on notice of a danger presented by the system.See Deposition of Rondi Fischer at 27. This court finds thatthe evidence in this case does not demonstrate the type ofknowledge of a danger and conscious disregard of that danger toconstitute "deliberate, willful, or malicious infliction ofinjury." Accordingly, neither exception to the immunity provisionin West Virginia's RUS applies.

IV. Conclusion

The FTCA provides that the United States can be held liable tothe same extent as a private individual. West Virginia's RUSprovides an exclusion from liability for landowners that allowindividuals to use their property for recreational purposessubject to two exceptions. Neither exception is applicable inthis case. Therefore, West Virginia's RUS, in conjunction withthe FTCA, shields the United States from liability in thismatter. Accordingly, defendant's motion for summary judgment isGRANTED. The Clerk is directed to mail copies of this Revised MemorandumOpinion and Order to all counsel of record and to post a copy onthe district website for publication.

It is SO ORDERED.

REVISED MEMORANDUM OPINION AND ORDER

Before the court is the defendant's motion for summaryjudgment. For the reasons detailed in this opinion and order,defendant's motion is GRANTED.

I. Introduction

The plaintiff filed this action on April 19, 2004, seekingdamages for an injury sustained while swimming in Lake Sherwoodat Monongahela National Forest. The plaintiff alleges that he wasinjured on June 20, 2002, by the "reckless, careless, andnegligent placement of concrete metal anchors which protrudedabove the floor of the public swimming area of Lake Sherwood."See Complaint at 2. The defendant denies the allegations andasserts that West Virginia's Recreational Use Statute, W. Va.Code Ann. § 19-25-1, et seq., shields it from liability and thatthe plaintiff cannot demonstrate proximate cause.1 SeeDefendant's Motion for Summary Judgment (Doc. No. 32). On June 20, 2002, the plaintiff and several members of hisfamily drove to Lake Sherwood to enjoy a day of swimming at thepark. See Plaintiff's Memorandum in Opposition to SummaryJudgment (Doc. No. 37) at 3. Upon arriving at the park, theplaintiff was charged a $3.00 fee for the car he was driving.Id. at 14. After parking, the plaintiff and his family membersproceeded to wade into the lake to the left of the designated"kiddie" swimming area. Id. at 4.2 The plaintiffreturned to the shore to drop off his mother's watch and hisring. Deposition of Darren Winebrenner at 16. The plaintiff thenproceeded to reenter the water to the left of the kiddie swimmingarea. Id. at 16-17. After entering a short distance into thelake, the plaintiff felt pain in his lower right leg afterhitting his foot on something and fell into the water. Doc. No.37 at 4-5. The plaintiff required medical treatment for hisinjuries. Id. at 6.

II. Standard for Summary Judgment

Turning to the issue of summary judgment, Rule 56 of theFederal Rules of Civil Procedure provides that [t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.Fed.R.Civ.P. 56 (2003). The moving party has the burden ofestablishing that there is no genuine issue as to any materialfact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party has met this burden, the burden thenshifts to the nonmoving party to produce sufficient evidence fora jury to return a verdict for that party.

The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find, by a preponderance of the evidence, that the plaintiff is entitled to a verdict. . . .Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "Ifthe evidence is merely colorable, or is not significantlyprobative, summary judgment may be granted." Id. at 250-251.Finally, "[o]n summary judgment the inferences to be drawn fromthe underlying facts . . . must be viewed in the light mostfavorable to the party opposing the motion." United States v.Diebold, Inc., 369 U.S. 654, 655 (1962).

III. Analysis

The United States is immune from suit unless it gives consentto be sued. United States v. Sherwood, 312 U.S. 584, 586-87(1941). The Federal Tort Claims Act ("FTCA") provides a limitedwaiver of sovereign immunity, stating "The United States shall be liable, respecting the provisions of this title relatingto tort claims, in the same manner and to the same extent as aprivate individual under like circumstances. . . ." See28 U.S.C. § 2674. West Virginia has a recreational use statute("RUS") which provides limited immunity to persons who open theirland for recreational purposes. See W. Va. Code Ann. § 19-25-4.That statute, in conjunction with the FTCA, has been held toshield the United States from liability to the same extent as aprivate individual. See Cox v. United States,827 F. Supp. 378, 383 (N.D.W.V. 1992). The United States argues that it isprotected by the RUS under the facts of this case. See Doc. No.32 at 2. Plaintiff Winebrenner asserts that one or both of theexceptions to the statute's immunity provision applies in thismatter. See Doc. No, 37 at 11.

West Virginia's statute provides in part: [Subject to enumerated exceptions], 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 or hazardous condition, use, structure or activity on such premises to persons entering for such purposes. . . . [A]n owner of land who either directly or indirectly invites or permits without charge [defined in the act], any person to use such property for recreational . . . purposes does not thereby: (a) extend any assurance that the premises are safe for any purpose; or (b) confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or (c) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.See W. Va. Code Ann. § 19-25-2. The act provides two exceptionsto its general exclusion for liability: (1) "For deliberate,willful, or malicious infliction of injury to persons or property; or (b) for injury suffered in any case where the ownerof land charges the person or persons who enter or go on theland." See W. Va. Code Ann. § 19-25-4. The statute definescharge as "the amount of money asked in return for an invitationto enter or go upon the land." See W. Va. Code Ann. § 19-25-5.The plaintiff argues that both exceptions are applicable here.This court disagrees.

A. Charge

It is undisputed that the plaintiff and his family paid a $3.00fee that was assessed upon each car that entered the park. SeeDoc. No. 37 at 14. The plaintiff argues that this fee equates toa "charge" under West Virginia's RUS. Id. at 14-15. The UnitedStates argues that the fee is merely a parking charge and is notthe type of entrance fee contemplated by the statute. SeeMemorandum in Support of Defendant's Motion for Summary Judgment(Doc. No. 33) at 15-16.

The court finds that the $3.00 fee is a parking fee and not ageneral entrance fee. There is deposition testimony in this casethat the $3.00 fee was levied per car and not per passenger inthe car. See Deposition of Rondi Fischer at 29; Deposition ofDarren Winebrenner at 12. There is also testimony that anindividual who entered the park on foot or on bicycle did not paythe $3.00 fee. See Deposition of Rondi Fischer at 29. Those whoenter on foot or bicycle are entitled to the same use of the parkas those who arrive by car and pay the $3.00 parking fee. Id.at 33. The plaintiff implies that because of the distance of thepark from a main road, the parking fee was a de facto entrancefee. See Doc. No. 37 at 16. Plaintiff's argument does notaccount for the fact that the fee is only charged per car and notper individual in the car. See Deposition of Rondi Fischer at29 ("Q. It didn't matter if you had a car with two, five, ten orwhatever number. . . . Is that correct?" "A. Correct."). Thecourt finds that a fee charged per car and not per passenger andthat is not charged to those arriving on foot or by bicycle is aparking fee and not a general entrance fee.

Having determined that the $3.00 fee was purely a parking feeand not a general entrance fee, the inquiry is then whether thisequates to a "charge" under the RUS. West Virginia has notaddressed the question of parking fees in relation to theliability exclusion under its RUS. Most jurisdictions that haveaddressed this issue, however, have held that a parking fee doesnot invoke the "charge" exception to that state's respective RUSliability exclusion. See Hall v. United States, 2003 WL1877593, 2:02cv00096, at n. 2 (W.D. Va. 2003) (noting that thecase could be dismissed for lack of subject matter jurisdictionunder Virginia's RUS because the $3.00 fee "was charged `pervehicle' and visitors who hiked to the area were not required topay the fee [thus] the fee was not `for use of the premises'");Cole v. South Carolina Electric & Gas, Inc., 362 S.C. 445,449-51 (holding that a $3.00 parking fee was not a "charge",defined as "the admission price or fee asked in return forinvitation or permission to enter or go upon the land"); Hanley, et al. v.State, 837 A.2d 707, 714 (R.I. 2003) (holding that camping andparking fees were not a "charge", defined as "the admission priceor fee asked in returned for invitation or permission to enter orgo upon the land"); Majeske v. Jekyll Island State ParkAuthority, 209 Ga. App. 118, 119-20 (holding that a $1.00parking fee charged per vehicle was not a "charge," defined inthe RUS as "the admission price or fee asked in return forinvitation or permission to enter or go upon the land").

In a case analogous to the situation here, the Kentucky Courtof Appeals held that a $2.00 parking fee levied per car and notper motorist was not a "charge" within the meaning of thatstate's RUS. See City of Louisville v. Silcox,977 S.W.2d 254, 257 (Ky.App. 1998). The statute in that case defined"charge" as "the admission price or fee asked in return forinvitation or permission to enter or go upon the land." Id. at256 (citing Ky. Rev. Stat. § 411.190(1))(d)) compare with W.Va. Code Ann. § 19-25-5 (defining "charge" as "the amount ofmoney asked in return for an invitation to enter or go upon theland"). That court stated that when a fee is "levied per vehiclewithout regard for the number of people inside and no fee ischarged to those entering by other means . . . mere payment of aper-vehicle fee to enter and park . . . does not destroy theimmunity granted by the statute." Id. at 256. As in Silcox,the $3.00 fee in this case was charged per vehicle irrespectiveof the number of passengers and it was the policy of the parkthat those arriving by means other than a motorized vehicle were not charged any fee.See Deposition of Rondi Fischer at 29, 33. This court agreeswith the other courts that have held that a parking fee is notthe equivalent of an entrance fee as contemplated by the term"charge" as defined in the various RUS's. No reason is perceivedwhy West Virginia's highest court, if asked to decide this issue,would not follow the great weight of authority from otherjurisdictions.

The plaintiff argues that the facts of this case are differentfrom the other parking fee cases because the United States ForestService designates Lake Sherwood as a "charge" area. See Doc.No. 37 at 13-14. The court finds this argument unavailing. Thedefinition of "charge" for purposes of West Virginia's RUS is alegal determination. The statute defines "charge" internally. Asnoted above, numerous states that have addressed RUS with nearlyidentical definitions of "charge" have determined that thedefinition does not encompass per-vehicle parking fees. Seesupra at 7-8. On the other hand, there is no evidence that theUnited States Forest Service was using the phrase "charge area"in relation to the RUS. Nothing in the literature that designatesLake Sherwood as a "charge area" mentions any RUS. SeeDeposition of Jim Miller, Ex. 2. Therefore, this court findsplaintiff's argument unpersuasive.

Plaintiff also suggests that West Virginia has a more liberalinterpretation of "charge" than the states that have addressedparking fees in relation to RUS. See Doc. No. 37 at 14-15. Plaintiff's reliance on Kessner v. Trenton,158 W. Va. 992 (1975), is unconvincing. Kessner involved a lawsuit overdrowning deaths at a marina in which the owner of a marina andboat dock did not directly charge users a fee to swim in the lakebut did operate related for-profit businesses at the marina. SeeKessner, 158 W. Va. At 999-1000 (noting that the defendantsoffered rental slips for boats and both rented and sold boats tothe public).

The court in Kessner did not hold that any money thatexchanged hands constituted a "charge" under the statute. Rather,the court placed emphasis on the "money-making" aspect of theventure and the expectation that inviting people to the marinafree of charge would increase sales and profit at the for-profitbusinesses. Id. at 1004-05. In fact, the court noted that theplaintiff was in line at the boat rental stand at the time theinjury occurred. Id. The West Virginia Supreme Court reasonedthat the increased sales and rentals the defendant would enjoy byallowing people to swim free of charge was a sufficient "charge"to remove the liability protection afforded by the RUS. Id.Here, there was no similar profit motive or marketing strategy toincrease sales at the park. The facts of this case are morealigned with those cases on parking fees than with the facts ofKessner. This court believes that the court in Kessner wasswayed by the profit-making aspect of the marina and therelationship that the free swimming had in potentially increasingsales in the other aspects of the venture in that case. As that relationship is not present in this case, this court findsplaintiff's comparison to Kessner unconvincing. Accordingly,this court finds that the charge exception to the liabilityimmunity provision of West Virginia's RUS does not apply in thiscase.

B. Deliberate, Willful, or Malicious

The plaintiff also argues that the exception to the RUS for"deliberate, willful, or malicious infliction of injury" appliesin this case. See Doc. No. 37. The defendant argues in itsmotion for summary judgment, however, that the plaintiff failedto allege any deliberate, willful, or malicious action in thecomplaint. See Doc. No. 33 at 15; see also Complaint. Theplaintiff asserts that the term "reckless," used in thecomplaint, is a synonym for deliberate, willful, or malicious.See Doc. No. 37 at 11-12 (asserting that reckless negligencecan also be gross negligence which can encompass deliberate,wilful, or malicious infliction of injury). This court questionswhether the number of leaps of logic necessary to move from"reckless" to deliberate, willful, or malicious infliction ofinjury was sufficient to put the defendant on notice of thisclaim. In the exercise of an abundance of caution, however, thiscourt will construe the term "reckless" as asserting a theory ofdeliberate, willful, or malicious infliction of injury.Nevertheless, this court finds that the defendant's conduct inthis case does not rise to a level sufficient to trigger thedeliberate, willful, or malicious exception from the liabilityexclusion. This court has been unable to find any cases in which a courtin West Virginia or within the Fourth Circuit Court of Appealshas defined "deliberate, willful, or malicious" as used in WestVirginia's RUS. Black's Law Dictionary defines deliberate as"intentional; premeditated; fully considered." See Black's LawDictionary, 8th Ed. (2004). Willful is defined as "voluntary andintentional, but not necessarily malicious"; and malicious injuryis defined as "an injury resulting from a willful act committedwith knowledge that it is likely to injure another or withreckless disregard of the consequences." Id. A commonalitybetween all three words is some degree of intention andknowledge. West Virginia has defined "willful negligence"standing alone. In Stone v. Rudolph, 32 S.E.2d 742 (W. Va.1945), the court stated that willful negligence does not require"that there should be ill will toward the person injured; but anentire absence of care for the safety of others, which exhibitsindifference to the consequences. . . ." Stone,32 S.E.2d at 748 (citing Todorobak v. McSurley, 148 S.E. 323 (W. Va. 1929)).

The plaintiff argues that this case is on all fours withDenham v. United States, 834 F.2d 518 (5th Cir. 1987).See Doc. No. 37 at 12-13. In Denham, the plaintiff wasinjured when he dove from knee-deep water into waist-deep waterand hit his head on concrete anchors at a lake owned by theUnited States. Denham, 834 F.2d at 519. The Fifth Circuit Courtof Appeals upheld the district court's finding that the UnitedStates' conduct fell outside of that conduct protected by the RUSin Texas. Id. at 522-23. The court affirmed the finding ofliability against the United States.

The plaintiff asserts that the reasoning in Denham wouldresult in a finding that the willful, deliberate, or maliciousexception to the liability exclusion applies in this case. Thiscourt disagrees. There are several important distinctions betweenthe Denham case and the matter before this court. First, theFifth Circuit placed great importance on the fact that the buoysattached to the anchors had become detached and the United Statesknew that the buoys had detached on more than one occasion. Id.Nevertheless, the United States left the unattached anchors inthe swimming area. Id. at 522. Additionally, the amount of theanchor above the surface of the lake floor was significant. Id.(noting that the anchors would occasionally protrude above thewater line). Moreover, the standard of care applied in Denhamwas lower than that required in West Virginia even though thestatutory language is similar. The Fifth Circuit interpreted thedeliberate, willful, or malicious injury" language in Texas's RUSto encompass gross negligence under Texas law. Id. at 521. WestVirginia, however, has held that "[w]illful negligence is agreater degree of negligence than gross." See Stone32 S.E.2d at 749 (citing Turk v. Norfolk & W. Railway Co., 84 S.E. 569,570)). Therefore, West Virginia would interpret the statutorylanguage "deliberate, willful, or malicious injury" as requiringa higher degree of negligence than do the Texas courts. In contrast to the facts of Denham, there is no evidence inthis case that the anchors were ever separated from the buoys.The presence of the buoys would alert a swimmer to the fact thatsomething was holding them in place under the water. Moreover,the amount of anchor that was above the floor of the lake wasonly "six inches." See Deposition of James Miller at 8. Also,significantly, there is no evidence of any reports of injuriesfrom the buoy and anchor system at Lake Sherwood that would putthe defendant on notice of a danger presented by the system.See Deposition of Rondi Fischer at 27. This court finds thatthe evidence in this case does not demonstrate the type ofknowledge of a danger and conscious disregard of that danger toconstitute "deliberate, willful, or malicious infliction ofinjury." Accordingly, neither exception to the immunity provisionin West Virginia's RUS applies.

IV. Conclusion

The FTCA provides that the United States can be held liable tothe same extent as a private individual. West Virginia's RUSprovides an exclusion from liability for landowners that allowindividuals to use their property for recreational purposessubject to two exceptions. Neither exception is applicable inthis case. Therefore, West Virginia's RUS, in conjunction withthe FTCA, shields the United States from liability in thismatter. Accordingly, defendant's motion for summary judgment isGRANTED. The Clerk is directed to mail copies of this Revised MemorandumOpinion and Order to all counsel of record and to post a copy onthe district website for publication.

It is SO ORDERED.

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