On Appeal from the United States District Court for the Eastern District of Pennsylvania.
Gibbons and Hunter, Circuit Judges and Stapleton, District Judge.*fn*
Edward C. McGarr, on his own behalf and as parent and guardian of his minor son, appeals from an order entered on September 15, 1983, dismissing with prejudice his complaint against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1982). The United States cross-appeals, contending that the district court abused its discretion in reentering its order of dismissal on September 15, 1983, so as to permit a timely appeal. We affirm in No. 83-1729, the appeal by the United States. We reverse in No. 83-1710, the appeal by McGarr.
The Complaint and the Court's Ruling
McGarr alleges that his son, Edward Christopher McGarr, was seriously injured when on April 3, 1982, McGarr's automobile went out of control on County Line Road and struck a tree. The road is owned by the Commonwealth of Pennsylvania, but traverses the Valley Forge National Historical Park, which is owned by the United States. The amended complaint alleges:
The aforesaid accident was caused by the negligence, carelessness and recklessness of the United States of America in creating or permitting to remain on its property a condition which involved an unreasonable risk to those travelling on the highway adjacent thereto.
App. at 79-80. McGarr filed the amended complaint after the trial court held that the initial complaint failed to allege a basis under Pennsylvania law for liability of the United States as a landowner. In response to the government's Rule 12(b)(6) motion to dismiss, McGarr indicated in a memorandum to the court what he expected to prove:
It is the plaintiff's position that the muddy, slippery and dangerous condition upon the roadway and bridge were caused by runoff and other material from the land adjacent to the highway which is sloped on the highway and bridge. Plaintiff's position is that it was the Defendant's responsibility not to permit a dangerous condition to exist upon its land which would create, permit, or cause a dangerous condition upon the adjacent highway.
The dangers of a flooded or washed out or muddy road and bridge are evident and certainly foreseeable where proper runoff and drainage are not secured.
App. at 162, 166. McGarr also made clear to the court that he pleaded alternatively the maintenance of a dangerous natural condition and a dangerous artificial condition, asserting that
discovery may yet reveal the existence of an artificial condition such as grading, drainage course or shoring excavation so as to cause the muddy, slippery and dangerous conditions Plaintiff encountered while crossing County Line Road Bridge.
Reply Brief on Motion to Dismiss, at 2. That position is consistent with the allegation that the United States was negligent "in creating or permitting to remain on its property a condition which involved an unreasonable risk to those travelling on the highway or adjacent thereto."
On May 9, 1983, the district court entered an order providing "that the plaintiff's complaint is dismissed with prejudice." App. at 168. No opinion was filed, and the order contains no explanation of the ground of decision. Assuming that the appeal is properly before us, an issue we address in Part III infra, we must therefore consider whether under Pennsylvania law McGarr could recover against an owner of land abutting a highway for the maintenance on the land of an artificial or natural condition causing an uknreasonable risk to travelers on the highway.
The Federal Tort Claims Act provides that the United States shall be liable "in the same manner and to the same extent as a private individual, under like circumstances." 28 U.S.C. § 2674 (1982). The United States relies heavily on section 363 of the Restatement (Second) of Torts (1965), which provides:
(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of ...