Stover v. United States of America et al, No. 5:2022cv05074 - Document 26 (D.S.D. 2023)
Court Description: MEMORANDUM OPINION and ORDER Signed by U.S. District Judge Charles B. Kornmann on 03/30/2023. (KLE)
Download PDF
<![CDATA[
Stover v. United States of America et al Doc. 26 Case 5:22-cv-05074-CBK Document 26 Filed 03/30/23 Page 1 of 4 PageID #: 160 JT J UNITED STATES DISTRICT COURT NAR 3 0 2023 DISTRICT OF SOUTH DAKOTA WESTERN DIVISION DELBERT STOVER, CLSfK 5:22-CV-05074-CBK Plaintiff, MEMORANDUM OPINION AND ORDER vs. UNITED STATES OF AMERICA, OFFICE OF GENERAL COUNSEL, USDA, US FOREST SERVICE,BLACK HILLS NATIONAL FOREST; Defendants. Plaintiff Delbert Stover brings this negligence action against the United States of America under the Federal Tort Claims Act. The matter is before the Court on the defendant's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. 1. Background On September 19, 2019, Mr. Stover was at a boat ramp near the South Shore of Sheridan Lake in the Black Hills National Forest in South Dakota launching his boat to participate in an event sponsored by a local recreation community. The dock at the boat ramp was a particular floating model that would rise, fall, and shift from left to right along with the waves in the lake. While attempting to launch his boat, Mr. Stover claims that a wave hit the dock causing him to slip and fall. He alleges that he sustained several injuries resulting from the fall and instituted this action. XL Legal Standard A party may move to dismiss an action based on lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Dismissal is appropriate when a movant 1 Dockets.Justia.com Case 5:22-cv-05074-CBK Document 26 Filed 03/30/23 Page 2 of 4 PageID #: 161 successfully challenges subject matter jurisdiction on the face ofthe complaint or on the facts. Titus v. Sullivan. 4 F.3d 590, 593 (8th Cir. 1993)(citing Osbom v. United States, 918 F.2d 724, 729(8th Cir. 1990)). The Eighth Circuit has held that "[i]n deciding a motion under Rule 12(b)(1), the district court must distinguish between a facial attack—^where it looks only to the face ofthe pleadings—and a factual attack— where it may consider matters outside the pleadings." Crovle v. United States, 908 F.3d 377, 380(8th Cir. 2018)(citing Qsborn, 918 F.2d at 729 n.6.). Because a Rule 12(b)(1) motion addresses "the trial court's jurisdiction—its very power to hear the case—^there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Osbom,918 F.2d at 730. The plaintiff bears the burden to establish subject-matter jurisdiction. Crovle, 908 F.3d at 381. Here, the defendant makes a factual attack on subject matter jurisdiction, so the Court will look to matters outside of the pleadings. III. Analysis Mr. Foxhoven brings his claim against the United States pursuant to the Federal Tort Claims Act. Through the Federal Tort Claims Act, the United States waives sovereign immunity and can be "held liable for negligent or wrongful acts by federal employees committed while acting within the scope of their employment." White v. United States, 959 F.3d 328, 332(8th Cir. 2020)(quoting Washington v. Dmg Bnft Admin., 183 F.3d 868, 873 (8th Cir. 1999)). The United States is liable "in the same manner and to the same extent as a private individual under like circumstances" but only where the United States "if a private person, would be liable to the claimant in accordance with the law ofthe place where the act or omission occurred." 28 U.S.C. § 2674; 28 U.S.C. § 1346(b). State law, therefore, guides the initial inquiry into whether the United States can be held liable within the framework ofthe Federal Tort Claims Act. See Molzof v. United States, 502 U.S. 301, 306(1992)("[T]he extent ofthe United States' liability under the FTCA is generally determined by reference to state law."). In South Dakota, a landowner owes no duty of care to those participants using the land for recreational activities unless the user is charged an admission price or fee. See 2 Case 5:22-cv-05074-CBK Document 26 Filed 03/30/23 Page 3 of 4 PageID #: 162 SDCL §§ 20-9-13, 20-9-16, 20-9-12.' The question here is whether Mr. Stover paid an admission priee or fee to use the boat ramp at Sheridan Lake. There seems to be no dispute that Mr. Stover purehased some sort of pass from the United States Forest Serviee, but the parties eontest whether purchasing that pass is sufficient to create issues of liability. The defendants argue that the boat ramp was free for all members ofthe public to access at the time of Mr. Stover's accident, so the pass essentially does nothing to establish possible liability. S^ Def.'s Br., Doe. 12 at 7. Mr. Stover states that the "Premium Annual Day Use Pass" he purehased from the Forest Service did not list specific dates that it was valid, and that "annual" encompasses a full calendar year. See PL's Br., Doc. 17 at 6. In response, the defendants argue that the "annual" pass was not valid for an entire calendar year but was only valid from Memorial Day to Labor Day. S^ Def.'s Rep. Br., Doc. 21 at 4. The pass was valid for one year, but Mr. Stover was not injured during the timeframe a fee was required. He was injured when access to all was free. Mr. Stover cites the Forest Serviee website that lists the "Annual Recreation Pass for Black Hills National Forest Facilities" and the recreation areas that the pass grants access to, including "Sheridan North & South, Picnic Grounds, 'SDCL § 20-9-13 states: Except as provided in § 20-9-16, an owner ofland owes no duty of care to keep the land safe for entry on or use by any participant for outdoor recreational activity, or to give any warning of a dangerous condition, use, structure, or activity on the owner's land to any participant entering on or using the land for outdoor recreational activity. SDCL § 20-9-16 states in relevant part: Nothing in §§ 20-9-12 to 20-9-18, inclusive, limits in any way any liability which otherwise exists:. . . (2)For injury suffered in any ease where the owner of land charges any participant, .... SDCL § 20-9-12 states in relevant part: Terms used in §§ 20-9-12 to 20-9-18, inclusive, mean: (2)"Charge," the admission priee or fee asked in return for an invitation or permission to enter on or use the land Case 5:22-cv-05074-CBK Document 26 Filed 03/30/23 Page 4 of 4 PageID #: 163 Boat Ramps,[and] Beaches." Pl.'s Br., Doc. 25 at 1} There are no specific dates regarding the use of the Lake Sheridan South boat ramp on the website. Of course, "Annual" is defined as,"Of, relating to, or involving a period of one year." Annual, Black's Law Dictionary (11th ed. 2019). But the annual pass is not specifically related to the Lake Sheridan South boat ramp and there are many other recreation areas listed on the website to which the pass grants annual access. The proper question is not whether the pass was valid for a year, which it clearly is, but whether the pass was necessary to access the boat ramp on September 19, 2019. Based on the sworn statements oftwo Black Hills National Forest employees, the Lake Sheridan South boat ramp was open to the public at the time of Mr. Stover's accident. Schumacher Deck, Doc. 13 at T| 6; Block Deck, Doc. 14 at ^ 8. If another individual could have used the same boat ramp on the same day that Mr. Stover was injured without purchasing the armual day use pass, then I do not see how the pass could constitute a charge to use the boat ramp on September 19, 2019. Fundamentally, one cannot pay a fee to access something that is free and open to the public. The Court concludes that it has no subject matter jurisdiction over this claim because South Dakota law would not create liability for a similarly situated individual. IV. Conclusion Now,therefore, IT IS ORDERED that the defendant's motion to dismiss for lack of subject matter jurisdiction(Doc. 11, 24)is granted. DATED this 3^^day of March, 2023. BY THE COURT CHAREES B. KORNMANN United States District Judge '^ Annual Recreation Passfor Black Hills National Forest Facilities, UNITED STATES Forest Service, https://www.fs.usda.gov/detail/blackhills/passespermits/recreation/?cid=stelprdb5063140 (last visited March 8, 2023).
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
