United States Court of Appeals

                          FOR THE EIGHTH CIRCUIT

                                 _____________

                                  No. 97-3082
                                 ____________

Ken Jenkins, Jr., and Kimberly            *
Jenkins,                             *
                                     *
                  Appellants,             *
                                     *
      v.                                         *   Appeal   from   the   United
States
                                     * District Court for the Western
Arkansas Power & Light Company,      * District of Arkansas
                                     *
                  Appellee.          *

                                 ____________

                        Submitted: March 11, 1998

                              Filed: April 9, 1998
                                  ____________

Before BOWMAN and FLOYD R. GIBSON, Circuit Judges, and NANGLE,1 Senior
District Judge.
                             ____________

NANGLE, Senior District Judge.
      Ken Jenkins, Jr. and Kimberly Jenkins appeal the district court’s2
grant of summary judgment to appellee after a mistrial, the district
court’s denial of appellants’ motion for summary judgment, the district
court’s denial of appellant’s motion for recusal and renewed motion for
recusal and the district court’s exclusion of the testimony of appellants’
expert witness. We affirm.

I.   BACKGROUND

      On the night of September 2, 1995, Ken Jenkins, Jr. dove into         Lake
Hamilton in Garland County, Arkansas and hit a submerged island.            As a
result, he suffered a burst fracture to his neck, rendering him a           full
quadriplegic.   Appellee, Arkansas Power & Light, (“APL”), owns             Lake


      1
          The HONORABLE JOHN F. NANGLE, Senior United States District
Judge for the Eastern District of Missouri, sitting by designation.
      2
          The HONORABLE JIMM LARRY HENDREN, United States District
Judge for the Western District of Arkansas.
Hamilton. Lake Hamilton is a reservoir operated by the Federal Energy
Regulatory Commission and was created for the purpose of producing
hydroelectric power for APL. The lake is open to the public pursuant to
its Project 271 license from the Federal Energy Regulatory Commission. Ken
Jenkins, a resident of Texas and pilot with Lone Star Airlines, had been
to Lake Hamilton the week prior to the accident with several others to swim
and boat. Jenkins alleges he swam in roughly the same area the prior week
and found the water to be at least 15 to 20 feet deep. The day of the
accident Jenkins and several others went out on a pontoon boat to swim in
what they believed was deep water. Jenkins dove in the water before he or
anyone else had actually gotten in the water to check its depth. The
submerged island is located in an open body of water, roughly 400 yards
from the nearest shoreline, in what appears to be a deep part of the lake.

      Tom Gibbons owned a home on the shore of Lake Hamilton and he
witnessed the accident through a pair of binoculars and called 911 before
the boat reached the shore. Gibbons was aware of the presence of the
submerged island because he had witnessed numerous boats strike the island
in the past. Prior to the accident, Gibbons had contacted APL because he
was concerned about the danger of the submerged island and inquired about
marking the area. APL did not respond. Corporal Bob Charlesworth of the
Garland County Sheriff’s Department had marked the island with buoys once
or twice before the accident, but the buoys disappeared. An employee of
APL, Bobby Pharr, assisted Corporal Charlesworth in placing these buoys.
After the buoys disappeared, APL did nothing to mark the area. After the
accident, Gibbons took it upon himself to plant two trees on the island
which protrude above the water line and he placed some floating milk jug
buoys. He also erected a metal post and sign that states, “Warning: Cable
buried” to try to keep people away from the area. Gibbons testified that
this has effectively kept most people away and he has only seen one boat
run across the island since the accident.

      Jenkins filed this suit on February 29, 1996, alleging negligence in
defendant’s failure to mark the submerged island and failure to warn the
public about the presence of the island. Both plaintiffs and defendant
filed motions for summary judgment, but the court allowed the case to go
to trial. Before the court ruled on the motions for summary judgment,
plaintiffs filed a motion for recusal asserting that the Judge’s son had
become a new associate at defendant’s law firm.      The court denied the
motion.   Plaintiffs filed a renewed motion for recusal which was also
denied. After the jury could not reach a verdict, the court declared a
mistrial. The case was set for retrial, but defendant filed a motion for
reconsideration of its motion for summary judgment, which was granted by
the court on June 30, 1997.



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II.   ANALYSIS

      A.   Summary Judgment for Appellee.

      We review the district court’s grant of summary judgment de novo.
See Excalibur Group, Inc. v. City of Minneapolis, 

, 1219 (8th
Cir. 1997).     Summary judgment is only appropriate when the record
demonstrates there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law after viewing the facts
and inferences in the light most favorable to the nonmoving party. See
Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

, 587 (1986).

      Appellants argue that the court erred in granting summary judgment
because issues of material fact existed on whether the submerged island was
an ultra-hazardous condition and whether defendant maliciously failed to
warn that the area was shallow. Appellants allege there was sufficient
evidence presented for a reasonable jury to conclude that appellee knew of
the danger and failed to warn the public about it.         Such knowledge,
appellants argue, coupled with inaction is malicious. A reasonable jury
could have also concluded that the submerged island in the middle of the
lake was ultra-hazardous. Alternatively, appellants argue that the court
erred in applying the recreational use statute at all because the purpose
of the statute would be thwarted by its application to appellee. Appellant
argues the statute shouldn’t apply because the goal of the statute is to
encourage landowners to open their land for public access through immunity
from suit. Appellant reasons that because appellee was required to open
the lake to the public, the purpose of encouraging landowners to open their
land would not be served by applying the statute.

      Our analysis necessarily begins with the Arkansas Recreational Use
Statute which provides that:

            Except as specifically recognized by or provided in § 18-
            11-307, an owner of land who, either directly or
            indirectly, invites or permits without charge any person
            to use his property for recreational purposes does not
            thereby:

            (1) Extend any assurance that the land or premises are safe for
any               purpose;
            (2) Confer upon the person the legal status of an invitee or
licensee to                  whom a duty of care is owed;
            (3) Assume responsibility for or incur liability for injury to
the person or                property caused by an act or omission of such
persons;



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           (4) Assume responsibility for or incur liability for injury to
the person or               property caused by any natural or artificial
condition, structure, or                personal property on the land.

Ark. Code Ann. § 18-11-305 (West, WESTLAW through 1997 Reg. Sess.).    The
exception to the statute states:

           Nothing in this subchapter limits in any way liability
           which otherwise exists:

           (1) For malicious, but not mere negligent, failure to guard or
warn against           an ultra-hazardous condition, structure, personal
property, use, or activity              actually known to the owner to be
dangerous; . . .

Ark. Code Ann. § 18-11-307 (West, WESTLAW through 1997 Reg. Sess.). The
statute defines “land” to include water and watercourses.        The plain
language of the statute makes clear that the statute applies in the present
case because appellee is an owner of land.

      The district court granted summary judgment to appellee holding that
the recreational use statute did apply making defendant immune from
liability. It further held that the exception to the statute did not apply
because appellant had not presented evidence that the shallow area was
ultra-hazardous or that defendant’s failure to warn was malicious. The
court reasoned that shallow areas cannot be ultra-hazardous because they
are only dangerous if one dives head first into them but not if one wades
into them. Further, any failure to warn was mere negligence and certainly
not malicious.

      In Mandel v. United States, 

(8th Cir. 1983), we reversed
the grant of summary judgment to defendants and held that there were
genuine issues of material fact as to whether defendant’s conduct was
malicious under the exception to the Arkansas Recreational Use Statute.
In Mandel, plaintiff was injured when he dove into water and hit his head
on a submerged rock in the Buffalo River. Testimony had established that
the plaintiff had asked a National Park Ranger where he should swim and the
Ranger told him exactly where to go to swim.            Further, testimony
established that defendant knew about the danger of submerged rocks and
warned about them in their literature, but the Ranger did not warn
plaintiff. The statute then in effect, however, only required a showing
that the condition was dangerous. The statute now requires the condition
to be ultra-hazardous. The present case is sufficiently different from
Mandel because appellant was not advised by appellee on where to swim and
the statute’s language has become stricter.

      In Roten v. United States, 

(W.D. Ark. 1994), the
district court held that plaintiff had not shown that defendant failed to

                                    -4-
warn against an ultra-hazardous condition in a case where plaintiff had
fallen off a bluff in the White Rock Mountain recreation area. The White
Rock area provides unrestricted access to high cliffs where there are
generally no guard rails. There is one warning sign. Plaintiff fell at
night when he was walking too close to the edge. The court reasoned that
the high cliffs were not an ultra-hazardous condition which required
defendant to warn because they were an obvious source of danger. 

Given the obvious nature of the danger of walking near the edge of
a cliff at night, the court held that any failure to warn was merely
negligent. 

present case, there is an obvious danger associated
with diving into water at night when one has not tested the water to see
how deep it is and therefore the shallow area cannot be considered an
ultra-hazardous condition in and of itself which requires a warning.

      In Carlton v. Cleburne County, Arkansas, 

(8th Cir. 1996),
we affirmed a grant of summary judgment to defendant holding there was no
evidence defendant maliciously failed to warn of an ultra-hazardous
condition in a case where a bridge collapsed. We held that although there
had been evidence presented that defendants knew the bridge was
deteriorating, there was not sufficient evidence to show maliciousness.

We reasoned that there was no evidence defendants knew the
bridge was about to collapse and in fact the bridge had been examined by
engineers and declared sound. Further, the collapse of the bridge was an
unforeseen occurrence and so a failure to warn against it occurring could
not be malicious. 

In the present case, appellees could not
have foreseen that appellant would dive into the water without checking it
first because a reasonable person would check the depth of water before
diving into it. Appellee’s failure to warn, therefore, is, negligent at
most.

     B.   Motion to Recuse.

      We review the denial of a motion to recuse for abuse of discretion.
See In re Kansas Public Employees Retirement Sys., 

, 1358 (8th
Cir. 1996). Appellants argue the district court abused its discretion when
it refused to recuse itself because the judge’s son had accepted an
associate’s position (contingent upon his graduation and successful passing
of the bar exam) in the law firm that was representing appellee. This
situation, appellants allege, created the appearance of impropriety because
a reasonable person would question the judge’s impartiality. Under 28
U.S.C. § 455(b)(5)(iii), a judge must disqualify himself if a person with
whom he has a relationship in the third degree has an interest that could
be substantially affected by the outcome of the proceeding. Appellants
argue this was such a case.



                                    -5-
      A judge must disqualify himself if “a person within the third degree
of relationship to [the judge], or the spouse of such a person . . . [i]s
known by the judge to have an interest that could be substantially affected
by the outcome of the proceeding.”      28 U.S.C. § 455(b)(5).    In In re
Kansas, this Court held that “an employment relationship between a party
and a judge’s son or daughter does not per se necessitate a judge’s

(citations omitted). We reasoned that
although the judge’s daughter had accepted an offer of employment from a
law firm involved in the litigation, the judge was not required to recuse
himself because (1) she was not presently involved in the litigation; (2)
her employment would not ripen until sometime in the future during which
time much could change; and (3) she would be a salaried associate and as
such could not be substantially affected by the outcome of the case. 

case is factually similar to In re Kansas in that the Judge’s
son’s was not involved in the litigation and his employment did not begin
until sometime in the future and was contingent upon his graduating from
law school and passing the bar. In addition, his son would be a salaried
associate who would not be substantially affected by the outcome of the
case.   The district court did not abuse its discretion in denying the
motion to recuse and the renewed motion to recuse.

     C.   Exclusion of Appellants’ Expert Witness.

      Decisions concerning the admissibility of expert testimony “lie
within the broad discretion of the trial court” and will not be reversed
on appeal unless there has been an abuse of that discretion.            See
Peitzmeier v. Hennessy, 

, 296 (8th Cir. 1996). Appellants argue
that it was an abuse of discretion for the court to exclude the testimony
of their purported expert. Appellants offered the testimony of Terence J.
Connell claiming he had specialized expertise on the issues of proper
reservoir management as it relates to the safety of recreational users of
the reservoir. Mr. Connell is a graduate of the U.S. Military Academy and
has 27 years of experience as a commissioned officer in the U.S. Army Corps
of Engineers. He was at the executive level responsible for major civil
works Corps of Engineers reservoirs. Appellants allege that his testimony
would have assisted the trier of fact in determining what actions could
have been properly undertaken by appellee with regard to the shallow area.

      Federal Rule of Evidence 702 provides that expert testimony may be
admitted if it “will assist the trier of fact to understand the evidence
or to determine a fact in issue” and if the witness is “qualified as an
expert by knowledge, skill, experience, training, or education.” Fed. R.
Evid. 702.    The court determined that there was no need for expert
testimony and that Connell was not qualified as an expert.       Connell
indicated that he would testify about four issues. First, he stated that


                                    -6-
he would testify based on his experience in regards to appellee’s federal
duties and responsibilities. The court correctly determined that this was
an issue of law which was properly for the court to determine. Second,
Connell stated he would testify as to what actually happened the night of
the accident in regards to what might have prevented the accident. The
court properly determined that expert testimony was unnecessary because an
eyewitness had seen the entire thing through binoculars and because the
facts were not complex enough to require an expert. In addition, the court
determined that Connell was not an expert in the placement of buoys, he had
never investigated a diving accident and was not an accident
reconstructionist.

      Third, Connell stated he would testify about appellee’s actions with
regard to the shallow area. The court properly determined that this was
an issue left for the jury. Fourth, Connell stated that he would testify
as to his opinion on whether or not plaintiff was negligent in any way.
Again the court properly determined that this was an issue for the jury.
In addition, the court correctly ruled that Connell had no specialized
knowledge on which to base this opinion, as he admitted his opinion was
based on his own experience growing up in Michigan and swimming with his
brothers. Although the standards for admission of expert testimony are
liberal, the court did not abuse its discretion in excluding this
testimony. The court correctly determined that expert testimony was not
required and further that Connell was not an expert in anything. Connell
had never been admitted as an expert in any court and had not had anything
beyond general experience with accidents of this type.

     Affirmed.

     A true copy.

           Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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