F I L E D

United States Court of Appeals

Tenth Circuit

MAY 31 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRANK H. FEICHKO, JR.,

Plaintiff-Appellant,

v.

DENVER & RIO GRANDE WESTERN

RAILROAD COMPANY; THE SOUTHERN

PACIFIC TRANSPORTATION COMPANY, a

Delaware corporation,

Defendants-Appellees,

No. 98-4154

Appeal from the United States District Court

for the District of Utah

(D.C. No. 95-CV-1068)

John J. Rossi of Rossi, Cox, Kiker & Inderwish, Aurora, Colorado (Janet

Stansberry Drake of Rossi, Cox, Kiker & Inderwish, Aurora, Colorado; and

Richard I. Ashton of Ashton, Braunberger & Boud, Sandy, Utah, with him on the

briefs), for Plaintiff-Appellant.

Casey K. McGarvey (E. Scott Savage with him on the briefs) of Berman, Gaufin,

Tomsic, Savage & Campbell, Salt Lake City, Utah, for Defendants-Appellees.

Before SEYMOUR, Chief Judge, BRORBY and EBEL, Circuit Judges.

SEYMOUR, Chief Judge.
1

 The events giving rise to this lawsuit took place in January 1993.

Subsequently, the BIA was repealed and recodified without substantive change as

49 U.S.C. § 20701. See Pub.L. No. 103-272, 108 Stat. 745 (1994). This opinion

will refer to the BIA as it was codified in 1993.

2

 The district court granted summary judgment for SP on the ground that

Mr. Feichko was not an employee of SP. Mr. Feichko does not challenge this

ruling on appeal and therefore we do not address it. Thus, only D&RGW is

properly before this court as an appellee.

-2-

Frank H. Feichko originally brought this action in state court against his

employer, the Denver & Rio Grande Western Railroad (D&RGW), and the

Southern Pacific Transportation Company (SP) for injuries he sustained while he

was standing in a parked D&RGW locomotive that was struck by a moving SP

locomotive. Mr. Feichko asserted three claims against each defendant, seeking

damages under the Federal Employer’s Liability Act (FELA), 45 U.S.C. §§ 51 et

seq., the Boiler Inspection Act (BIA), 45 U.S.C. §§ 23 et seq.,

1

 and common law

negligence. 

Defendants removed the case to federal district court and moved for partial

summary judgment. Mr. Feichko moved to remand on the ground that the first

two claims were not removable under 28 U.S.C. § 1445(a), which prohibits the

removal of FELA claims filed in state court. The district court dismissed the

FELA and BIA claims against D&RGW and all claims against SP as a matter of

law, and then denied the motion to remand.2

 After extended discovery, the court

granted D&RGW’s motion for summary judgment on the remaining common law
-3-

negligence claim. See Feichko v. Denver & Rio Grande Western R.R., 13 F.

Supp.2d 1212 (D. Utah 1998). Mr. Feichko appeals and we affirm.

I

In January of 1993 Mr. Feichko, a locomotive engineer for D&RGW, came

to the D&RGW property on his day off to look for a checkbook he thought he

might have left there during the previous day’s shift. He was directed to two

D&RGW workmen who were cleaning locomotives. They told him they had not

seen the checkbook and suggested he look in the parked engines. Mr. Feichko did

so. While he was on board one of the parked engines, a moving locomotive

collided with it, knocking him into the control stand and console and causing him

serious injuries. The moving engine was owned by SP and operated by D&RGW

employees at the time of the accident.

Mr. Feichko sought recovery under the FELA, contending that his employer

breached its statutory duty to provide him a reasonably safe place to work, safe

equipment, and safe procedures. He also claimed under the BIA for breach of the

statutory duty to maintain the brakes of the moving locomotive in a safe

condition. Finally, Mr. Feichko asserted claims of common law negligence,

alleging that defendants violated their statutory duties under the above acts and

were negligent in their operation of the moving locomotive and in failing to warn
3

 Section 1441(b) provides that when original federal jurisdiction is based

on diversity of citizenship, the action is “removable only if none of the parties in

interest properly joined and served as defendants is a citizen of the State in which

such action is brought.” Mr. Feichko was a citizen of Utah. Defendant D&RGW

was a Delaware corporation with its principle place of business in Colorado, and

SP was a Delaware corporation with its principle place of business in California. 

The requirements for removal under section 1441(b) were thus met.

4

 The BIA does not create an independent cause of action for personal

injuries, and such an action must therefore be brought pursuant to the FELA. See

Urie v. Thompson, 337 U.S. 163, 188-89 & n.30 (1949); O’Loughlin v. National

R.R. Passenger Corp., 928 F.2d 24, 26 n.3 (1st Cir. 1991). 

-4-

him that the collision was imminent.

Defendants removed the case to federal district court under 28 U.S.C. §

1441(b), which provides for the removal of cases where the federal court has

original jurisdiction on the basis of diversity of citizenship.3

 Mr. Feichko moved

to remand the action to state court, arguing that it was not removable under 28

U.S.C. § 1445(a), which provides that “[a] civil action in any State court against a

railroad or its receivers or trustees, arising under [the FELA] may not be removed

to any district court of the United States.” Id.4

 

The federal district court determined that Mr. Feichko had failed to

establish the elements of a claim under either the FELA or the BIA and that he

had failed to show he was an employee of SP. The court then ruled that since

neither the FELA nor the BIA claims could stand, those claims need not be

remanded. The court further held that the common law negligence claim was

properly removed and was not subject to remand. In a subsequent ruling, the
-5-

court granted summary judgment for D&RGW on Mr. Feichko’s negligence claim,

concluding that D&RGW owed him no duty under the circumstances.

On apeal, Mr. Feichko contends that material issues of fact exist regarding

whether his claim falls within the scope of the federal statutes, and that the

district court improperly decided disputed issues of fact in granting summary

judgment on his common law negligence claim. Although Mr. Feichko did not

raise the denial of his motion to remand, we were concerned that the matter might

present a question of subject matter jurisdiction. We therefore directed the

parties to submit supplemental briefing on whether this case was properly

removed in view of section 1445(a) and, if not, whether we have subject matter

jurisdiction to consider the case. As discussed below, we are satisfied that federal

subject matter jurisdiction is present. Moreover, our review of the merits

persuades us the district court’s disposition was correct. 

II

The district court addressed Mr. Feichko’s motion to remand together with

defendants’ motion for summary judgment. The court granted the defendants

partial summary judgment, concluding on the undisputed facts that Mr. Feichko

was not acting within the scope of his employment at the time of his injuries and

that his claims under the FELA and the BIA were therefore not sustainable as a
-6-

matter of law. The court also denied the motion to remand, notwithstanding

section 1445(a), based on its ruling that neither statutory claim could stand.

In his supplemental brief, Mr. Feichko contends the court erred in reaching

the merits because removal of a FELA case is barred by section 1445(a). 

Defendants maintain that denial of the motion to remand was proper under these

circumstances, pointing to cases holding that such a denial is permissible when

the district court determines that the plaintiff’s claims are baseless in law and

fact. See Yawn v. Southern Ry., 591 F.2d 312 (5th Cir. 1979); Aldredge v.

Baltimore & Ohio R.R., 20 F.2d 655 (8th Cir. 1927). These holdings are premised

on the notion that a defendant seeking removal may “pierce the pleadings” of a

lawsuit asserting claims that are ostensibly barred by section 1445(a) to show that

the claims have been fraudulently pled to avoid removal. Burchett v. Cargill,

Inc., 48 F.3d 173, 175-76 (5th Cir. 1995) (reviewing action under Jones Act,

which incorporates provisions of FELA, including section 1445(a) removal bar). 

Courts applying this exception to section 1445(a), however, have recognized the

tension between a defendant’s right to demonstrate the baseless nature of a claim

and a plaintiff’s right to choose a state court forum. See Lackey v. Atlantic

Richfield Co., 990 F.2d 202, 207-08 (5th Cir. 1993) (holding district court should

have remanded case because defendants failed to meet burden of demonstrating

that Jones Act claim was “undisputedly false”); see also Burchett, 48 F.3d at 176
-7-

(cautioning against pretrying a case to determine removal jurisdiction). These

courts have not always drawn a bright line between assessing whether a statutory

claim is so legally baseless as to constitute a fraudulent attempt to prevent

removal and assessing whether the plaintiff has merely failed to state a claim, a

determination otherwise committed to the state courts. 

We acknowledged in Chacon v. Atchison, Topeka & Santa Fe Ry., 320 F.2d

331 (10th Cir. 1963), that a fraudulent attempt to evade removal may provide an

exception to the operation of section 1445(a), but we concluded that the exception

did not apply in that case.

[I]t is settled law that a civil action brought in a state court of

competent jurisdiction against a railroad company subject to the act

to recover damages for personal injuries is not open to removal to the

district court of the United States solely on the ground of diversity of

citizenship. And in the absence of any issue of a fraudulent attempt

to evade removal, the question whether an action instituted in the

state court is one under the act is to be determined by reference to the

allegations contained in complaint or petition, as the case may be.

Id. at 332 (citations omitted). We need not decide here whether the district court

improperly resolved the merits of a claim committed to the state courts instead of

remanding the matter. As we discuss below, we hold that a removal barred by

section 1445(a) does not in these circumstances present a matter of subject matter

jurisdiction. The issue of improper removal was therefore waived by Mr.

Feichko’s failure to raise it on appeal.

We have held as a general matter that
-8-

where a suit of which the United States Court may entertain original

jurisdiction is instituted in the state court and the defendant obtains

its removal, even though the removal is irregular, defective, or

unauthorized, and plaintiff acquiesces in such removal by seeking

relief from the United States Court, that court acquires jurisdiction of

the subject matter.

American Oil Co. v. McMullin, 433 F.2d 1091, 1094 (10th Cir. 1970) (quoting

Parks v. Montgomery Ward & Co., 198 F.2d 772, 774 (10th Cir. 1952)); see also

Donahue v. Warner Bros. Pictures, Inc., 194 F.2d 6, 10 (10th Cir. 1952) (when

suit over which federal district court would have original jurisdiction is brought

in state court and defendant obtains wholly unauthorized removal, federal court

acquires jurisdiction when plaintiff acquiesces by seeking relief from federal

court); Lopata v. Handler, 121 F.2d 938, 940 (10th Cir. 1941) (same). Although

these cases are not of recent vintage, current authority indicates they are still good

law and are applicable here.

The Supreme Court has addressed similar factual circumstances in several

opinions. In the most recent of these, a case originally filed in state court

asserting personal injury claims under state law was removed to federal court at a

time when complete diversity of citizenship did not exist. See Caterpillar Inc. v.

Lewis, 519 U.S. 61 (1996). A prompt remand motion was denied, the nondiverse

parties were thereafter dismissed, and the case proceeded to trial and judgment. 

The appellate court vacated the judgment, concluding that, absent complete

diversity at the time of removal, the district court lacked subject matter
-9-

jurisdiction. 

The Supreme Court reversed, holding that “a district court’s error in failing

to remand a case improperly removed is not fatal to the ensuing adjudication if

federal jurisdictional requirements are met at the time judgment is entered.” Id. at

471. The Court recognized that “the statutory flaw” caused by the defendant’s

failure to meet the requirements for removal remained in the history of the case

even though complete diversity was subsequently obtained and subject matter

jurisdiction was therefore established before trial commenced. Id. at 475. The

Court concluded, however, that adherence to the rules Congress prescribed to

preserve a plaintiff’s choice of forum was outweighed by “considerations of

finality, efficiency, and economy.” Id. at 476. 

In this case . . . no jurisdictional defect lingered through judgment in

the District Court. To wipe out the adjudication postjudgment, and

return to state court a case now satisfying all federal jurisdictional

requirements, would impose an exorbitant cost on our dual court

system, a cost incompatible with the fair and unprotracted

administration of justice.

Id. at 477. 

We note that in Caterpillar, unlike the instant case, the plaintiff raised the

propriety of removal on appeal and argued that he had done all he could to

preserve the choice of forum provided him by federal statute. The Court

nonetheless felt that these considerations were overcome by the fact that the court

had subject matter jurisdiction at the time of judgment, and by concern for
-10-

judicial economy. We believe the same balance should be struck here,

particularly in view of the fact that Mr. Feichko did not renew his challenge to

removal on appeal and instead sought relief from the district court rulings in this

court.

The Court in Caterpillar discussed two earlier cases, Grubbs v. General

Elec. Credit Corp., 405 U.S. 699 (1972) and American Fire & Cas. Co. v. Finn,

341 U.S. 6 (1951). The Court found these cases helpful and they likewise shed

light on our inquiry. In Grubbs, although the plaintiff did not move to remand,

the Court of Appeals sua sponte concluded that the removal was not authorized by

statute and that the case should therefore be remanded to the state court in which

it had originated. The Supreme Court disagreed and concluded that so long as the

district court had jurisdiction at the time it entered judgment, the validity of the

removal procedure could not be raised for the first time on appeal. See Grubbs,

405 U.S. at 700.

Longstanding decisions of this Court make clear . . . that

where after removal a case is tried on the merits without objection

and the federal court enters judgment, the issue in subsequent

proceedings on appeal is not whether the case was properly removed,

but whether the federal district court would have had original

jurisdiction of the case had it been filed in that court.

Id. at 702. 

In Finn, 341 U.S. 6, the Court similarly referred in dicta to prior cases

decided by it and by circuit courts 
-11-

which uphold judgments in the district courts even though there was

no right to removal. In those cases the federal trial court would have

had original jurisdiction of the controversy had it been brought in the

federal court in the posture it had at the time of the actual trial of the

cause or of the entry of the judgment. That is, if the litigation had

been initiated in the federal court on the issues and between the

parties that comprised the case at the time of trial or judgment, the

federal court would have had cognizance of the case. This

circumstance was relied upon as the foundation of the holdings.

Id. at 16-17 (footnote omitted). 

In our view, Caterpillar, Grubbs, and Finn all indicate that removal in

violation of a statutory provision does not deprive a federal district court of

subject matter jurisdiction so long as the court would have had original

jurisdiction over the case had it been filed there in the first instance. See

Belcufine v. Aloe, 112 F.3d 633, 638 (3d Cir. 1997) (relying on Grubbs and

Caterpillar in holding that removal in violation of statute is not jurisdictional and

therefore waivable when cause of action could have been brought originally in

federal court); Barbara v. New York Stock Exch. Inc., 99 F.3d 49, 55-56 (2d Cir.

1996) (relying on Grubbs and Finn for same proposition). Indeed, two other

circuits have expressly held that a removal in violation of section 1445(a) is a

waivable non-jurisdictional defect when the federal court could have exercised

subject matter jurisdiction had the case originally been brought there. See Lirette

v. N.L. Sperry Sun, Inc., 820 F.2d 116 (5th Cir. 1987) (en banc); Carpenter v.

Baltimore & Ohio R.R., 109 F.2d 375, 379-80 (6th Cir. 1940). 
-12-

In line with the authorities cited above, we likewise hold that removal in

violation of section 1445(a) may be waived by a plaintiff, either by a failure to

move the district court to remand, as was the case in Grubbs, or by a failure to

raise the matter on appeal, as in the instant case, so long as the district court

would have had jurisdiction had the case originally been filed there. Accordingly,

we have jurisdiction over this appeal.

III

The district court granted defendants’ motion for summary judgment on the

statutory claims, concluding as a matter of law that Mr. Feichko had not made the

requisite showing that his injuries occurred while he was acting within the scope

of his employment or in furtherance of the railroad’s interests. On appeal, Mr.

Feichko argues that the FELA constitutes broad remedial legislation which the

district court failed to construe liberally, and that whether the accident occurred

within the scope of his employment is a disputed fact issue that should be decided

by a jury.

The FELA provides a remedy for 

any person suffering injury while he is employed by [a common

carrier by railroad] in [interstate] commerce . . . for such injury . . .

resulting in whole or in part from the negligence of any of the

officers, agents, or employees of such carrier, or by reason of any

defect or insufficiency, due to its negligence, in its cars, engines, . . .

or other equipment.
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45 U.S.C. § 51. Recovery under the FELA is thus permitted only if the

employee’s injury occurred while he was employed by the railroad, which in turn

requires a showing that “the plaintiff was injured in the scope of his

employment.” Smith v. Medical & Surgical Clinic Ass’n, 118 F.3d 416, 419 (5th

Cir. 1997). Railroad employment has been broadly interpreted to extend not only

to acts required by the employer, but also to those acts necessarily incidental to

the employment. See, e.g., Rostocki v. Consolidated Rail Corp., 19 F.3d 104, 106

(2d Cir. 1994) (FELA covers injuries suffered during activities necessarily

incidental to employment); Wilson v. Chicago, Milwaukee, St. Paul, & Pac. R.R.,

841 F.2d 1347, 1355 (7th Cir. 1988) (act could be within scope of employment if

a necessary incident of the day’s work).

This circuit and others have nevertheless held that even “given its most

liberal interpretation, the Act cannot be extended to cover activities not

necessarily incident to or an integral part of employment in interstate commerce. 

It obviously does not cover activities undertaken by an employee for a private

purpose and having no causal relationship with his employment.” Atchison,

Topeka & Santa Fe Ry. v. Wottle, 193 F.2d 628, 630 (10th Cir. 1952); see also

Smith, 118 F.3d at 419 (citing Wottle); Rostocki, 19 F.3d at 106 (same); Wilson,

841 F.2d at 1355 (same). The district court here applied Wottle and concluded

that Mr. Feichko “was not acting within the scope of his employment pursuant to
5

 Mr. Feichko asserts for the first time on appeal that he had been called to

work on the day of the accident and was on the railroad’s property in response to

that call. In support of this assertion, he offers a statement he made in a

deposition taken almost ten months after the court granted summary judgment to

defendants on the FELA and BIA claims. Mr. Feichko’s argument is

unacceptable. First, the argument and evidence were not before the district court

at the time it ruled on the summary judgment motion. In reviewing a grant of

summary judgment, our inquiry is limited to the summary judgment record before

(continued...)

-14-

any duties or in furtherance of the railroad’s interest when the injuries were

sustained.” Aplt. App. at 97. The court held that Mr. Feichko’s search for his

missing checkbook was an activity with a private purpose having no causal

relationship with his employment, that the search was not done under the

direction and authority of the employer, and that the employer could not have

reasonably foreseen the search and did not benefit from it.

Mr. Feichko contends the district court erred in making this determination

as a matter of law, asserting that the question must be decided on its particular

facts and citing cases in which the issue was presented to the jury. The cases Mr.

Feichko cites are all distinguishable because they contain factual disputes

material to the issue of whether the activity resulting in the injury was for a

purely private purpose or was incidental to the plaintiff’s employment. Here the

material facts are not disputed. They reveal that Mr. Feichko was pursuing a

purely private activity which was not incidental to his employment and which

provided no benefit to his employer.5 Accordingly, the district court properly
5

(...continued)

the district court when the motion was decided. See Allen v. Minnstar, Inc., 8

F.3d 1470, 1475 & n. 4 (10th Cir. 1993) (citing cases). We reject Mr. Feichko’s

contention that we should make an exception to this rule in the interest of

preventing injustice. He has offered no explanation for his failure to present this

evidence to the district court by way of affidavit in response to defendants’

motion for summary judgment. Moreover, the deposition statement is ambiguous

as to whether Mr. Feichko was in fact called to work on Sunday, the day before

the accident, or on Monday, the day of the accident. Under these circumstances,

we see no reason to depart from our caselaw by considering this newly offered

evidence in assessing the propriety of the summary judgment granted on the

statutory claims.

6

 Because the BIA is considered in substance an amendment to the FELA

and enforced under that Act, see Urie v. Thompson, 337 U.S. 163, 188-89 (1949),

Mr. Feichko’s failure to establish that he was acting within the scope of his

employment at the time of the accident is dispositive of his claim under both

statutes.

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granted summary judgment to defendants on the statutory claims.6

In a subsequent ruling, the district court granted summary judgment for

D&RGW on Mr. Feichko’s common law negligence claim, holding that Mr.

Feichko was a licensee under Utah law and that the railroad owed him no duty

under the circumstances. See Feichko, 13 F. Supp.2d at 1214-15. The court

pointed out that Utah has adopted the RESTATEMENT (SECOND) OF TORTS § 341

(1965), under which a landowner owes no duty of care to a licensee who knows

the nature of the activities conducted on the land and the manner in which they

are conducted. Id. at 1214 (quoting § 341 cmt. a). The court concluded as a

matter of law that Mr. Feichko, as an experienced railroad engineer, had the

requisite knowledge, and rejected his argument that he did not assume the risk
-16-

that the railroad would conduct its activities negligently. The court held that

adopting Mr. Feichko’s construction of the landowner’s duty to a licensee “would

effectively eliminate the traditional rules limiting recovery on the part of such

licensees by applying a negligence standard any time negligence might have

occurred.” Id. at 1215.

Mr. Feichko asserts that the district court erred by assuming the extent of

his knowledge and by in effect ruling that he should have anticipated the

negligent conduct of the railroad. We disagree. The Utah courts have followed

the RESTATEMENT (SECOND) OF TORTS, under which a property owner’s duty to a

person injured on his property is determined by that person’s status on the

property as either an invitee, a licensee, or a trespasser. See Pratt v. Mitchell

Hollow Irrigation Co., 813 P.2d 1169, 1172 (Utah 1991); Tjas v. Proctor, 591

P.2d 438, 441 (Utah 1979). Mr. Feichko does not dispute the fact that his status

at the time of his injury was that of a licensee. Section 341 of the Restatement

governs the liability of a landowner to a licensee for activities conducted on the

land and provides:

A possessor of land is subject to liability to his licensees for physical

harm caused to them by his failure to carry on his activities with

reasonable care for their safety if, but only if,

(a) he should expect that they will not discover or realize the

danger, and

(b) they do not know or have reason to know of the possessor’s

activities and of the risk involved.
7

 In a statement recorded after the accident, Mr. Feichko admitted that he

had been involved in other impacts during his railroad career. See Aplt. App. at

52. He further stated by deposition that he had seen collisions that had knocked

windows open, water off water coolers, and cars onto the ground. See id. at 152. 

He also testified that he had been involved in situations in which he had applied

the brakes in a locomotive and the engine had slid, and that he had been on an

engine that slid in the cold snow as had apparently happened in the accident at

(continued...)

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RESTATEMENT (SECOND) OF TORTS § 341.

The comments to that section provide additional guidance on its

application, stating:

If a [licensee] knows of the nature of the activities conducted upon

the land and the manner in which they are conducted, he has all that

he is entitled to expect, that is, an opportunity for an intelligent

choice as to whether or not the advantage to be gained by coming on

the land is sufficient to justify him in incurring the risks involved.

Id. cmt. a. Significantly, the commentary further provides:

The possessor, therefore, is not required either to refrain from or to

give warning of activities dangerous to the licensee if they are, to the

knowledge of the licensee, so customarily carried on upon the land

that the licensee should be on the alert to discover and avoid them.

Id. cmt. d.

It is undisputed that Mr. Feichko was an experienced railroad engineer who

knew the activities customarily carried on in a railroad yard and the risks those

activities presented. Indeed, the D&RGW safety rules and Mr. Feichko’s own

statements establish that he knew collisions such as the one at issue here regularly

occur in the course of railroading activity.7 We agree with the district court that
7

(...continued)

issue. See id. at 158-61.

8

 Mr. Feichko cites numerous cases in support of his argument, all of which

are factually distinguishable. His reliance on Kurn v. Stanfield, 111 F.2d 469 (8th

Cir. 1940), is misplaced. There the plaintiff brought an action under the FELA

for injuries he sustained while acting as an employee. The case thus says nothing

about a railroad’s duty to a licensee. Marchello v. Denver & Western Rio Grande

R.R., 576 F.2d 262 (10th Cir. 1978), and Madison v. Deseret Livestock Co., 574

F.2d 1027 (10th Cir. 1978), are likewise inapposite as both considered the

application of section 342 of the Restatement, which addresses dangerous

conditions rather than the dangerous activities covered by section 341. In any

event, section 342 applies only when “the licensees do not know or have reason to

know of the condition and the risk involved.” RESTATEMENT (SECOND) OF TORTS

§ 342(c). Connor v. Union Pac. R.R., 972 P.2d 414 (Utah 1998), addresses the

application of a narrow exception to RESTATEMENT (SECOND) OF TORTS § 334

under which a landowner may owe a duty of care to an habitual trespasser. It thus

does not address the circumstances here. Other cases cited by Mr. Feichko are

similarly unpersuasive as they involve a landowner’s duty to trespassers or a

railroad’s duty to employees.

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Mr. Feichko’s argument would, contrary to the express language of the

Restatement and its commentary, render a landowner liable to a licensee for

negligence despite the licensee’s knowledge of the nature of the landowner’s

activity and the risk involved.8

 Section 341 and its commentary clearly provide

that a landowner owes no duty to a licensee to conduct his activities with

reasonable care if the licensee knows the nature of those activities and the risks

involved. Accordingly, we conclude that summary judgment was properly granted

against Mr. Feichko on his common law negligence claim.

In sum, we AFFIRM the judgment of the district court.