UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-51020 Summary Calendar

MICHELLE BEAN, Individually and on Behalf of the Estate of Megan Bishop, Deceased; RICHARD BISHOP, Individually and on Behalf of the Estate of Megan Bishop, Deceased; DAMON WALLACE, Individually and on Behalf of the Estates of Tiffany Wallace, Deceased; and THERESA WALLACE, Individually and on Behalf of the Estate of Tiffany Wallace, Deceased,

Plaintiffs - Appellants,

TIMOTHY O’NEAL,

Intervenor Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA,

Defendant - Intervenor Defendant - Appellee.

Appeals from the United States District Court for the Western District of Texas (No. A-00-CV-348-SS)

October 1, 2002 Before JOLLY, DAVIS and PARKER, Circuit Judges.

PER CURIAM:*

This matter arises from a fatal, single-car automobile

accident on a United States military reservation. Plaintiffs

here are the parents of Megan Bishop and Tiffany Wallace, who

both died as a result of the accident, and Timothy O’Neal, who

was also in the car. The district court conducted a bench trial

on Plaintiffs’ claims under the Federal Torts Claims Act,

, et seq. It found that the government was not

responsible for the accident and entered a take nothing judgment.

We review the district court’s findings of fact for clear error

and its conclusions of law de novo. See Baby Dolls Topless

Saloons, Inc. v. City of Dallas,

(5th Cir.

2002). Finding no error, we affirm.

Plaintiffs were driving on a public road within the Fort

Hood military installation. Linda Bunkley, a friend of Megan’s

father, and with whom Megan lived, was driving. At approximately

10:15 at night the car passed over a crossing used for armored

personnel carriers (tanks) and spun out of control. The car

slammed into a tree, killing Megan and Tiffany as well as

Bunkley.

The court determined as matter of law that Plaintiffs were

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

-2- licensees, not invitees, and that the government owed them a

concomitantly lesser duty of care. Under Texas law, a landowner

need only avoid willful, wanton, or grossly negligent conduct

which could subject a licensee to injury, and use ordinary care

to warn or make safe unreasonably dangerous features of the

property. See County of Cameron v. Brown,

(Tex. 2002). We agree with the district court’s classification

of Plaintiffs, there not being any evidence of mutually

beneficial relationship between them and the government. See

Motel 6 Gen. P’ship, Inc. v. Lopez,

(Tex. 1996).

Even under this more limited duty of care, Plaintiffs argue that

the closeness of the tree to the road as well as the tank

crossing presented unreasonably dangerous conditions. We

disagree. As the district court’s findings show, there was

nothing inherently dangerous about the tank crossing, either

resulting from tanks tracking dirt clods onto the road or as a

result of there not being a warning to drivers. Perhaps more

importantly, the evidence does not suggest that the crossing

caused the accident anyhow. As for the tree, it was 13 feet from

the shoulder, which is close but not so close that it subjected

Plaintiffs to an unreasonable danger.

AFFIRMED.

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