Fesmire v. United States , 9 F. App'x 212 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JERRY W. FESMIRE, Administrator of 
the Estate of Kristina Dawn
Fesmire,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,  No. 00-1310
v.
PATRICIA HOOP, Administratrix of
the Estate of Norman Hoop, III,
deceased,
Third Party Defendant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-98-108-4-H)
Argued: April 6, 2001
Decided: May 24, 2001
Before WILKINSON, Chief Judge, and NIEMEYER and
MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: L. Patten Mason, MASON & MASON, P.A., Morehead
City, North Carolina, for Appellant. Rudolf A. Renfer, Jr., Assistant
2 FESMIRE v. UNITED STATES
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Barbara D. Kocher, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Shortly after midnight on December 23, 1996, Norman Hoop, driv-
ing his Jeep Grand Cherokee with three teenaged female passengers
on a joyride over the sand dunes in Carteret County, North Carolina,
drove onto federal property and accidently proceeded down a steep
Navy boat ramp, plunging into the ocean. While two of the passen-
gers survived the accident, Hoop and Kristina Fesmire died. Proceed-
ing under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 1346(b), 2671 et seq., the Estate of Fesmire sued the United States,
the owner of the property, asserting that its conduct in creating the
hazard and failing to give warnings about it was "willful and wanton."
The district court granted the United States summary judgment, and
we affirm.
The Navy facility, where the accident occurred, is at the end of a
peninsula, most of which is owned by the State of North Carolina. At
the borderline of the State’s property, the road down the center of the
peninsula is blocked by a gate — which is kept locked — and a chain
link fence. The road continues beyond the gate and chain link fence
down the peninsula and ends at the beginning of federal property,
where there is another fence, a gate, and a small gate house. On the
fence, to the right of the gate, are two signs, which read, "No Tres-
passing" and "Keep Out." On the night of the accident, the gate to the
federal property was open and had been for some time. Beyond the
gate on federal property is a large concrete pad, about 350 feet deep,
FESMIRE v. UNITED STATES 3
that leads to a steeply inclined boat ramp, 31 feet in length. The ramp
is neither lit at night nor marked with any signs.
At about 12:30 a.m. on December 23, 1996, Hoop drove on the
road down the peninsula, and upon reaching the first gate, which was
locked, he drove parallel to the fence over land to the beach where
the fence intersected with the water. He then drove around the end of
the fence back onto State property, where he took the Jeep onto the
sand dunes, returning to the road shortly before it reached federal
property. At the fence bordering the federal property, he drove
through the open gate, across the concrete pad, and into the water.
The gate, which was in need of repair, had been removed from its
hinges and was lying on the ground nearby.
Fesmire’s Estate sued the United States for creating a dangerous
condition and failing to warn persons on federal property of its pres-
ence. The Estate asserts that the United States was aware of a previ-
ous accident in which one of its own vehicles ran off the ramp into
the water. It asserts that "[w]ith all of this knowledge[,] to then
remove the gate and not replace it or provide warnings of the hazard-
ous condition has to constitute wanton conduct — that is an inten-
tional act done with a reckless indifference to the injuries likely to
result." The Estate maintains that "the only action that the government
needed to take in order to avoid this tragic loss of two young lives
was to take the damaged gate, place it on the ground, straighten it
with a forklift, and reinstall it on the support post."
The government’s liability, if any, must be based on its waiver of
sovereign immunity under the FTCA for tort liability determined in
accordance with the law of the place where the tort occurs. More par-
ticularly, 28 U.S.C. § 2674 waives the United States’ sovereign
immunity "relating to tort claims, in the same manner and to the same
extent as a private individual under like circumstances." The United
States is held to the same, but no higher, standard than would be a pri-
vate person acting in the locale where the tort occurred, that is, it is
liable only "under circumstances where the United States, if a private
person, 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).
In North Carolina, where the alleged tort occurred, landowners owe
a duty to refrain from willful and wanton injury to trespassers. See
4 FESMIRE v. UNITED STATES
Nelson v. Freeland, 507 S.E.2d 882, 892 (N.C. 1998). "Wantonness"
is defined as an act "performed intentionally with a reckless indiffer-
ence to the injuries likely to result. ‘Willful or intentional negligence
is something distinct from mere carelessness and inattention, however
gross.’" Howard v. Jackson, 461 S.E.2d 793, 797 (N.C. Ct. App.
1995) (internal citation omitted) (quoting Wagoner v. North Carolina
R.R., 77 S.E.2d 701, 706 (N.C. 1953)).
In this case, the Estate contends that Fesmire was not a trespasser
because her use of the property occurred with the implied knowledge
of the United States, which it contends amounts to an implicit invita-
tion to use the property. Even if the Estate is correct, however,
Fesmire’s use of the property was recreational, which means that the
duty owed her was the same duty to refrain from willful and wanton
injury that is due a trespasser. See N.C. Gen. Stat. § 38A-4 ("[A]n
owner of land who either directly or indirectly invites or permits with-
out charge any person to use such land for . . . recreational purposes
owes the person the same duty of care that he owes a trespasser").
Thus, it is clear that, whatever Fesmire’s status, the United States
owed a duty to refrain from committing a willful or wanton injury.
Because Fesmire’s Estate admits that the injury was not willful, it
must demonstrate that the United States’ conduct was wanton — an
act "performed intentionally with a reckless indifference to the inju-
ries likely to result."
There are at least two reasons why Fesmire’s Estate has not met its
burden in this case. First, the Estate does not allege any wrongful act,
but at most a wrongful omission or failure to act, the failure to warn.
We have found no case in North Carolina which holds that the passive
conduct of a landowner is deemed to be an act performed "intention-
ally with a reckless indifference to the injuries likely to result."
Second, even if we assume that an omission can be considered
wanton misconduct under North Carolina law, it is still clear that this
allegedly wrongful omission does not impose liability for which tres-
passers or even implicit invitees can assert a claim. North Carolina’s
limitation of liability statute extends the limitation of the duty owed
to trespassers to direct or indirect invitees who are using the owner’s
property for recreation without charge. The statute does provide an
exception — imposing a duty to warn of "artificial or unusual hazards
FESMIRE v. UNITED STATES 5
of which the owner has actual knowledge" — but this exception
applies only to "direct invitees." See N.C. Gen. Stat. § 38A-4 (empha-
sis added). By negative implication, therefore, there is no duty to
warn trespassers or indirect invitees of artificial or unusual hazards.
Fesmire’s Estate claims only that Fesmire was an indirect invitee.
The North Carolina legislature made a deliberate choice not to extend
its exception to the trespasser rule to indirect invitees, who are men-
tioned earlier in the same section of the statute. Thus, the United
States owed no duty to inform Fesmire of the hazardous condition
either by providing lights or posting warning signs. Accordingly, the
most that the Estate can do is point to the fact that the United States
left its gate open. But this omission, standing alone, cannot provide
evidence of wanton misconduct. We have been directed to no North
Carolina law that imposes on landowners a duty to fence or gate their
properties.
The accident in this case was a most unfortunate tragedy. But it
was not an accident for which the United States, as landowner where
the accident occurred, was liable in tort under North Carolina law.
Accordingly, the judgment of the district court is
AFFIRMED.