___________

No. 95-2843

___________

Jason Carlton, Amy Carlton *

a minor, by Tony Carlton as *

next friend; Lee Vernon Carlton,*

heirs to Gaila Carlton; Wanda *

Mae Carlton, heirs to Gaila *

Carlton; Ronnie Lee Carlton, *

heirs to Gaila Carlton; Stevie *

Lynn Carlton, heirs to Gaila *

Carlton; Brenda Carlton, heirs *

to Gaila Carlton; Darren *

Carlton, a minor, by Lee Vernon *

Carlton as next friend, heirs *

to Gaila Carlton; Leah Carlton, *

a minor, by Alvin Carlton as *

next friend; Lenora Carlton; * Appeal from the United States

Mark Barr David, a minor, by * District Court for the Eastern

William "Bill" L. Davis, Jr., * District of Arkansas.

as next friend; Wilbur L. Davis,*

Jr., also known as Bill L. *

Davis; Nicole Lambeth; Charles *

Lee Pigg; Melanie Lynn Pigg, a *

minor, by Charles Lee Pigg as *

next friend; Nathan Lee Pigg, a *

minor by Charles Lee Pigg as *

next friend; Tammy Rene Pigg; *

Stephanie Thomason, a minor, by *

Barbara Thomason, as next *

friend; Ron Waltham, heirs to *

Dana Waltham; Sherry Waltham, *

heirs to Dana Waltham; Ronald *

Matthew Waltham, a minor, by *

Ron Waltham as next friend, *

heirs to Dana Waltham; Sherran *

Faith Waltham, minor, by Ron *

Waltham as next friend, heirs *

to Dana Waltham; Terra Waltham, *

a minor, by Ron Waltham as next *

friend, heirs to Dana Waltham; *

Bishop Warren, heirs to David *

Warren; Patsy Ann Warren, heirs *

to David Warren; Dwain Warren, *

heirs to David Warren; Dwight *

Warren, heirs to Darren Warren; *

Karren Warren McClain, heirs to *

David Warren; Timothy Wayne *

Warren, heirs to David Warren; *

James Williams, heirs to Jason *
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Williams; Tina Williams, heirs *

to Jason Williams; Tina *

Gayvonne Grant, heirs to Jason *

Williams; James Williams, also *

known as Jamie Williams, heirs *

to Jason Williams, *

*

Appellants, *

*

v. *

*

Cleburne County, Arkansas; *

Swinging Bridge Resort; Philip *

Dodd; Diana Gayle Dodd; Harvey *

Adcock; Lanny C. Brackett; *

Randall C. Carlton; Thurman R. *

Carr; Larry W. Crabtree; Carl *

D. Foust; Charles Sherlon Foust;*

Lavern Gallaway; Fred New; *

Delane Wright; Dan Verser; J.D. *

Kennedy, ** Defendants - Appellees, ** Mary Lou Barnett; Carolyn Sue *

O'Dwyer, ** Defendants, ** Bob Burkeen; Polly Burkeen, ** Defendants - Appellees, ** John Does, 1 - 18. *

___________

 Submitted: January 11, 1996

 Filed: August 21, 1996 ___________

Before WOLLMAN, ROSS and MURPHY, Circuit Judges.

___________

ROSS, Circuit Judge.

Appellants, victims of a bridge collapse in Cleburne County,
 1

The Honorable George Howard, Jr., United States District

Judge for the Eastern District of Arkansas.

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Arkansas, or their decedents, appeal from the district court's1

order granting summary judgment to Cleburne County and its former

Quorum Court officials (County appellees) in this 42 U.S.C. § 1983

action. Appellants also appeal from the district court's order

granting summary judgment in favor of the Swinging Bridge Resort

and its individual owners (Resort appellees) on the appellants'

pendent state law claims of negligence.

I.

Cleburne County originally built the Winkley Bridge, also

known as the "Swinging Bridge," in 1912. In 1959, the State of

Arkansas included the bridge in its state highway system and

exercised the power of eminent domain, divesting the County of any

equitable or legal claim to title. In 1970, when the state

constructed a new bridge, the Swinging Bridge and its approaches

were saved from destruction. Although the issue of ownership of

the bridge arose some years after the new bridge was constructed,

the County nevertheless maintained the bridge and its approaches.

For the purposes of this appeal, we will assume without deciding,

that the County owned the bridge. 

 

In 1982, the local newspapers reported the results of tests

conducted by engineers in response to Quorum Court concerns that

the bridge was deteriorating. The engineers reported that the

bridge was sturdy, capable of supporting pedestrian traffic for

another 50 to 100 years, and that the interior of the cables was

shiny and rust free. Although the engineers recommended ultrasound

testing on the bridge cables and application of a protective

coating on the cables to prevent further rusting, the Quorum Court

initiated no further tests or treatment. 
-4-

On October 28, 1989, the Swinging Bridge collapsed and fell

into the Little Red River, when approximately forty people were on

the bridge, swinging it from side to side. Five people were killed

and many others were injured. 

Appellants filed this lawsuit against the County and the

Quorum Court members under 42 U.S.C. § 1983, alleging deprivation

of their substantive due process rights. Appellants also filed an

action against the Resort appellees, who operated a cafe and resort

at the bridge site and owned the land upon which a bridge easement

lay on one side of the river. This action was based on pendent

state law claims of negligence in failing to warn appellants of an

ultrahazardous danger. 

The district court granted summary judgment in favor of the

County appellees, concluding that appellants failed to establish

that a constitutional violation occurred. The court also granted

summary judgment in favor of the Resort appellees, holding that the

appellees are immune from suit under Arkansas' Recreational Use

Statute. We affirm.

II.

Nothing in the language of the Due Process Clause imposes upon

the state an affirmative obligation to protect or care for

particular individuals. DeShaney v. Winnebago Cty. Dep't of Social

Servs., 489 U.S. 189, 195 (1989); Gregory v. City of Rogers, 974

F.2d 1006, 1009 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993).

Rather, the "Clause is phrased as a limitation on the State's power

to act, not as a guarantee of certain minimal levels of safety and

security." DeShaney, 489 U.S. at 195; see also Collins v. City of

Harker Heights, 112 S. Ct. 1061, 1069 (1992). Nevertheless, this

court has held that the Due Process Clause imposes a duty on state

actors to protect or care for citizens in two situations: "first,

in custodial and other settings in which the state has limited the
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individuals' ability to care for themselves; and second, when the

state affirmatively places a particular individual in a position of

danger the individual would not otherwise have faced." Gregory,

974 F.2d at 1010 (citing DeShaney, 489 U.S. at 195, 199-200);

Sellers v. Baer, 28 F.3d 895, 899 (8th Cir. 1994), cert. denied,

115 S. Ct. 739 (1995). Here, the appellants do not contend that

they were ever in "custody" or were otherwise limited in their

ability to care for themselves. Therefore, we consider only the

"creation of danger" exception, or whether the state affirmatively

placed these particular individuals in a position of danger they

would not have otherwise encountered.

We stated in Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir.

1990), that "[i]t is not clear, under DeShaney, how large a role

the state must play in the creation of danger and in the creation

of vulnerability before it assumes a corresponding constitutional

duty to protect. It is clear, though, that at some point such

actions do create such a duty." Cases where the duty to protect

has arisen have consistently involved affirmative conduct by

government officials directly responsible for placing particular

individuals in a position of danger. See, e.g., L.W. v. Grubbs,

974 F.2d 119, 121-22 (9th Cir. 1992) (state officials knowingly

assigned violent, habitual offender to work alone with female

prison employee and did not inform her of the risk), cert. denied,

508 U.S. 951 (1993); Medina v. City of Denver, 960 F.2d 1493, 1497

n.5 (10th Cir. 1992) (police officers engaged in a high speed car

chase potentially liable for creating a special danger faced by a

bicyclist); Freeman, 911 F.2d at 54-55 (police chief prevented

protective services from enforcing restraining order against

victim's estranged husband); Wood v. Ostrander, 879 F.2d 583, 590

(9th Cir. 1989) (trooper created a danger by impounding car and

abandoning female passenger in a high crime area at 2:30 a.m.),

cert. denied, 498 U.S. 938 (1990); Wells v. Walker, 852 F.2d 368,

370-71 (8th Cir. 1988) (state officials created a danger when

released prisoner with violent propensities was transported to
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victim's store without warning), cert. denied, 489 U.S. 1012

(1989). In these cases the courts have uniformly held that state

actors may be liable if they affirmatively created the plaintiffs'

peril or acted to render them more vulnerable to danger. See

DeShaney, 489 U.S. at 201. In other words, the individuals would

not have been in harm's way but for the government's affirmative

actions.

Appellants assert the County appellees affirmatively placed

them in a position of danger they otherwise would not have faced

when the appellees, with actual knowledge of the deteriorating

condition of the bridge, promoted the bridge as a tourist

attraction, had the bridge placed on the National Register of

Historic Places, performed cosmetic work on the bridge in order to

maintain an attractive appearance, established a park, built a

parking lot, removed a warning sign, and promoted the bridge

through publications. According to appellants, the County

appellees' conduct created the danger by impliedly assuring them of

the bridge's safety and encouraging them to be on the bridge, and

therefore, the appellees had an affirmative duty to protect against

such harm.

Even if we accept as true that the County owned the bridge and

knew the bridge was deteriorating but refused to provide any

maintenance or repair, we must conclude that no constitutional

violation occurred. Mere knowledge of danger to the individual

does not create an affirmative duty to protect. DeShaney, 489 U.S.

at 200. Simply offering a location as a tourist attraction is not

the type of affirmative government action that creates a duty to

protect under DeShaney. Appellants allege no affirmative act on

the part of government officials directly placing them on the

bridge. Nor did the County appellees' actions "create the danger"

causing the bridge to collapse. To the contrary, accepting the

appellants' allegations as true, the bridge cables broke because of

internal corrosion caused by rust. To impose an affirmative duty
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to protect the general public from a situation created by the

processes of nature would be to impose upon a county an impossible

burden. Finally, neither the County appellees' actions nor

inaction placed these particular individuals in a position of

danger. Gregory, 974 F.2d at 1010; Wells, 852 F.2d at 370-71.

Instead, any action on the part of the County appellees was

directed toward members of the general public. There simply was no

constitutional deprivation under § 1983 in this case.

III.

Appellants filed pendent state law claims against the Resort

appellees alleging the appellees negligently failed to warn them of

an ultrahazardous condition. Appellants claim the Resort appellees

actively encouraged business from visitors to the bridge by

picturing the bridge on their brochures and postcards and calling

their operation the Swinging Bridge Resort. Appellants also allege

the Resort appellees had actual knowledge of the condition of the

bridge, having been among those to bring its condition to the

attention of the County appellees, but in spite of this knowledge,

the Resort appellees took no action to warn visitors to the bridge

of the dangerous condition.

In order to "encourage owners of land to make land and water

areas available to the public for recreational purposes," the

Arkansas Recreational Use Statute (the Act) generally immunizes a

landowner from liability when an individual is injured while on the

land for recreational purposes. Ark. Code Ann. § 18-11-301.

Specifically, the Act provides that "an owner of land owes no duty

of care to keep the premises safe for entry or use by others for

recreational purposes or to give any warning of a dangerous

condition, use, structure, or activity on the premises to persons

entering for recreational purposes." Ark. Code Ann. § 18-11-304.

The Act, however, does not limit a landowner's liability for

"malicious, but not mere negligent, failure to guard or warn
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against an ultra-hazardous condition . . . actually known to the

owner to be dangerous," Ark. Code Ann. § 18-11-307(1), or where the

landowner "charges the person or persons who enter or go on the

land for the recreational use thereof." Ark. Code Ann. § 18-11-

307(2).

Appellants concede they were visiting the bridge for

recreational purposes. However, they contend the Resort appellees

nevertheless remain liable under the two exceptions to the Act.

First, appellants argue that because the Resort appellees operated

a business near the bridge site and collected revenue from bridge

visitors, this was not a gratuitous undertaking as envisioned by

the Act, and therefore the "charge" exception to the Act is

triggered. We disagree. 

The immunity of the Act applies if the person uses the

property without charge of "an admission fee for permission to go

upon or use the land." Ark. Code Ann. § 18-11-302(4). It is

uncontroverted that the appellants did not pay a fee to the Resort

appellees or any other entity for admission to or use of the land,

or to enjoy the privilege of sightseeing at the bridge. Even if

the presence of a business enterprise adjacent to the bridge was

found to be legally significant, which itself is questionable, it

is undisputed that none of the appellants, nor any member of their

groups, went to the diner or the trout dock as customers on the day

the bridge collapsed. In fact, the diner was closed and none of

the appellants had registered as customers of the resort. Instead,

they merely parked on the Resort appellees' parking lot, without

charge, to sightsee at a public bridge. This court has held that

"[c]onsideration [under the Act] should not be deemed given unless

it is a charge necessary to utilize the overall benefits of a

recreational area so that it may be regarded as an entrance or

admission fee." Wilson v. United States, 989 F.2d 953, 957 (8th

Cir. 1993). Because there was no entrance fee, or any other fee of

any kind, paid in the instant case, we conclude the "charge"
 2

The Restatement (Second) of Torts § 520 provides that in

determining whether an activity is abnormally dangerous the

following factors are to be considered: 

(a) existence of a high degree of risk of some harm to

the person, land or chattels of others;

(b) likelihood that the harm that results from it will

be great;

(c) inability to eliminate the risk by the exercise of

reasonable care;

(d) extent to which the activity is not a matter of

common usage;

(e) inappropriateness of the activity to the place

where it is carried on; and 

(f) extent to which its value to the community is

outweighed by its dangerous attributes.

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exception to the Act does not apply. 

Appellants also argue the Resort appellees remain liable under

the second exception to the Act, which provides that a landowner

will not enjoy immunity where he or she maliciously fails to guard

or warn against an ultrahazardous condition actually known to the

landowner to be dangerous. Ark. Code Ann. § 18-11-307(1). In

order to support their claim under this theory, appellants are

required to prove not only that the Swinging Bridge was an

ultrahazardous structure actually known by the Resort appellees to

be dangerous, but also that the Resort appellees maliciously, not

merely negligently, failed to guard or warn them of this dangerous

condition. 

As the district court noted, no Arkansas court has interpreted

"ultrahazardous" as used under the Act. In a similar situation,

this court applied the Restatement (Second) of Torts, § 520, in

order to define "ultrahazardous" under Missouri's Recreational Use

Statute where neither the Missouri statute, nor the courts, had

defined the term. Henderson v. United States, 965 F.2d 1488, 1495

(8th Cir. 1992). Appellants take issue with this reliance on

§ 520,2 as applied in strict liability cases, arguing that such a

concept has no rational relationship to recreational use statutes.
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Instead, they advocate a broader definition of "ultrahazardous" and

assert that a noticeably deteriorating bridge ready to collapse

could be found by a jury to be an ultrahazardous condition.

We do not need to decide this issue, however, because even if

we were to assume the bridge was an ultrahazardous structure, the

appellants have offered no evidence to show the appellees either

actually knew the bridge constituted a dangerous condition or that

they maliciously failed to warn or guard against the danger. 

With respect to the Resort appellees' actual knowledge of the

dangerous condition, the appellants assert that Gayle Dodd, one of

the Resort appellees, knew of the deterioration of the bridge and

even campaigned for its inspection and repair. The inspection was

subsequently conducted, however, and the engineers ultimately

reported that the structure was sound. Appellants have not

contested the Resort appellees' statement of undisputed facts that

the problems with the bridge, brought to the attention of officials

in 1982, were repaired, or that the Resort appellees did not hear

of any problems with the bridge since that time. The undisputed

facts also show that several of the Resort appellees frequently

walked on the bridge themselves, including just two weeks prior to

its collapse. We agree with the district court's conclusion that

the appellants have failed to create a fact issue showing that the

Resort appellees actually knew the bridge was dangerous.

We also agree with the district court that the appellants have

failed to present a question of fact tending to prove that the

Resort appellees maliciously failed to warn the appellants or guard

against the alleged ultrahazardous condition of the bridge. In

Henderson, 965 F.2d at 1494, this court determined that the term

"malicious," as used in Missouri's Recreational Use Statute, was

malice in its legal sense. In Arkansas, "malice" is inferred where

"the negligent party knew, or had reason to believe, that his act

of negligence was about to inflict injury, and that he continued in
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his course with a conscious indifference to the consequences."

Stein v. Lukas, 823 S.W.2d 832, 834 (Ark. 1992) (quoting Missouri

Pacific R.R. v. Mackey, 760 S.W.2d. 59, 63 (Ark. 1988), cert.

denied, 490 U.S. 1067 (1989)) (further citations omitted).

Appellants have offered no facts to support the theory that

Resort appellees maliciously failed to warn. There is no evidence

that the appellees knew the bridge was about to collapse, yet

continued their course of conduct with a conscious indifference to

these consequences. In Roten v. United States, 850 F. Supp. 786,

794-95 (W.D. Ark. 1994), aff'd, 39 F.3d 1184 (8th Cir. 1994), the

district court held that the government's failure to install

guarding devices prior to a boy's fall from cliffs in a national

recreational area was not malicious under Ark. Code Ann. § 18-11-

307(1), despite the fact that there had been three prior falls from

the obviously dangerous cliffs. The cliffs in Roten posed an

obvious danger, in contrast to the collapse of the Swinging Bridge,

which was an unforeseen occurrence that even the engineers who

inspected the bridge were unable to predict. Appellants again

point to appellee Gayle Dodd's knowledge of needed repairs as

evidence supporting their contention that the Resort appellees

acted maliciously. This evidence, however, supports precisely the

contrary conclusion. The district court properly concluded that

the Resort appellees were immune under the Act.

IV.

In conclusion, we affirm the district court's grant of summary

judgment in favor of the County and Resort appellees.

A true copy.

Attest:

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