that it used to descend to the foot of the falls.
The plaintiff, as near as may be reasonably inferred from the
evidence, did not follow the troop. He crossed the stream to the
side opposite from the path and climbed up the side of the falls.
There was really not much of a stream at that time of year. The
photographs (Group 1 Exhibits) taken by the scout leader show
that the amount of water coming across the falls was sparse. The
plaintiff, apparently, climbed up the side of the falls to the
second ledge, opposite the path that had been used by the scout
troop to both descend and ascend. One of the troop members, as he
was climbing the path, saw the plaintiff beginning to cross the
face of the falls on the second ledge. Other members of the troop
reported that while they were climbing the path, they saw, out of
the corner of their eyes, an object fall. One of them heard a cry
and the sound of something striking the rocks below. One of them
heard a voice call out "Danny." No one actually saw the plaintiff
The troop members all report that when they finally did look to
their right, they saw that someone had fallen from the face of
the falls and was lying on the rocks below. The troop members
went to the foot of the falls where they found the plaintiff. He
was lying directly in line with the water fall and about a foot
downstream. The plaintiff had suffered an injury to his spinal
cord at the eighth thoracic level and is now a paraplegic.
The plaintiff seeks recovery for his injuries on several
theories. First, he claims that the defendant was negligent and
the defendant's negligence was a proximate cause of the
plaintiff's injuries. Alternatively, the plaintiff says the
defendant acted in a willful and wanton manner and caused the
plaintiff's injuries. Finally, the plaintiff seeks to recover on
the basis that the United States was "willful and malicious" as
that term is used in the Illinois Recreational Use Statute,
Ill.Rev.Stat. ch. 70, Para. 31 et seq.
Illinois law controls in this case. 28 U.S.C. § 1346(b). The
standard of care in Illinois owed by an owner of land to a person
upon that land is well established. If the plaintiff was an
invitee, the defendant owed the plaintiff a duty of due care for
his safety. If the plaintiff was a licensee or a trespasser, the
defendant owed the plaintiff a duty to refrain from willful and
wanton misconduct which might injure the plaintiff. See Comment
IPI 2d 120.02, 120.03. If the operation of Shawnee National
Forest is covered under the Illinois Recreational Use Statute,
Ill.Rev.Stat. ch. 70, Para. 34, then the defendant would be under
a duty to refrain from "willful and malicious" conduct toward the
The dangers shown in Group Exhibit 1 and Group Exhibit 2 are
not hidden. They are open and apparent dangers. The area of
Shawnee National Forest in which the plaintiff was injured is
primitive and natural. Exhibits 1 and 2 show Burden Falls as
having sheer rock faces of thirty feet and more, with ledges
along the face of the cliff and water running over it. The United
States did not develop the Burden Falls area. There are no
facilities there for use of visitors — no campsite, no toilet
facilities. To the contrary, the owner offered the premises in a
natural condition to those who wished to come upon the land.
There was no fee charged for admission to the land.
The United States, under these circumstances, should be similar
to a private landowner who permitted the Shawnee National
Forest area to be used by the public and would be subject to the
Illinois Recreational Use Act. The United States, then, would
have been required to refrain from "willful and malicious"
conduct toward the plaintiff. Certainly, there is nothing in the
evidence which could support a finding of "willful and malicious"
as those words are interpreted in Davis v. United States,
716 F.2d 418 (7th Cir. 1983). There were no hidden dangers at Burden
Falls. There was no history of similar accidents at the falls.
The United States did not know the plaintiff likely would be
injured and then wickedly fail to warn him of the danger.
Nor can it be said that the United States is guilty of willful
and wanton conduct. If the Illinois Licensing Act, Ill.Rev.Stat.
ch. 111½, Para. 761, et seq., applied and not the Use Act, and
if the plaintiff was a licensee under Illinois law,*fn2 then the
duty upon the defendant was to refrain from willful and wanton
conduct. The defendant was "not to engage in a course of action
which shows actual or deliberate intention to harm or which, if
not intentional, shows an utter indifference to or conscious
disregard for a person's safety." IPI2d 14.01; see also
Restatement (Second) of Torts, § 342 (1965). Had the danger been
hidden as it was in Davis and Miller v. United States,
597 F.2d 614 (7th Cir. 1979), then there might have been a duty upon
the United States to warn of the danger. But here the danger was
open and obvious. It fairly cried out. The extreme risk of
falling from the face of this sheer rock cliff, if you attempted
to cross it, was something any person of ordinary sensibilities
would have recognized. An urban dweller would have recognized it
as akin to walking across the face of a building on a wet ledge
two floors above the ground level. There was no evidence of
intention to injure and since the danger was so obvious, the
failure to warn could not constitute an utter disregard or
conscious indifference to the plaintiff's safety.
Taking the facts with their intendments most favorable to the
plaintiff, however, and assuming, for purposes of this motion,
that the plaintiff was an invitee and that the defendant owed the
plaintiff a duty of ordinary care, the plaintiff still cannot
prevail. The danger of falling when climbing on a sheer rock face
like Burden Falls is obvious. Look at Group Exhibits 2A and 2B.
There is no testimony or evidence in the record that anyone was
injured in a fall from the face of this cliff before the
plaintiff fell. Where is there a duty to warn against such an
open and obviously perilous condition?
The Illinois law on the question of due care to guard against
injuries from an apparent and obvious danger is set out in Cope
v. Doe, 102 Ill.2d 278, 286, 80 Ill.Dec. 40, 464 N.E.2d 1023
(1984). In that case a child of seven drowned in the defendant's
pond. In discussing the question of the duty of the landowner,
the court stated, "This court has acknowledged that there are
many dangers such as those of fire and water or of falling from a
height which under ordinary conditions may reasonably be expected
to be fully understood and appreciated by any child of any age to
be allowed at large." Id. at 286, 80 Ill.Dec. 40,
464 N.E.2d 1023. The court went on to hold that there is no duty of ordinary
care to warn or guard against an obvious and apparent danger.
Here, the defendant in the exercise of ordinary care would not
have been called upon to warn the plaintiff that he might fall
from the face of the cliff. It was not necessary to warn the
plaintiff that crossing a narrow ledge, with water running over
it, twenty feet above the ground, could prove hazardous, if not
lethal. The danger would have been apparent to any child old
enough, as the Illinois Supreme Court said, to be at large.
It is a fair inference, but I don't know precisely, that the
plaintiff saw the rest of the troop going up the path when he was
on the opposite side of the falls. Rather than descend to the
foot, go across and catch up with the troop, he took the
obviously dangerous shortcut across the face of the falls, lost
his footing and fell. This is a tragic occurrence. I have the
greatest sympathy for the plaintiff. He has a grievous, permanent
injury, but I can't lay the fault for that injury at the feet of
the forest service.
The motion of the United States for dismissal under
Fed.R.Civ.P. 41(b) is allowed. The Clerk is directed to enter
judgment in favor of the United States and against the plaintiff.