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finding no prior accidents probative of defendant's lack of knowledge in negligence case
Summary of this case from Underwood v. NCL (Bah.) Ltd.Opinion
No. C-99-5045 EDL
May 17, 2001
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Plaintiff Aroldo Colin filed suit for negligence and willful misconduct against Defendant United States of America to recover for serious injuries sustained when he dove from a tree at the Yorty Creek Swim Area at Lake Sonoma. Plaintiff claims that Defendant is liable under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), for: (1) failing to remove or properly maintain dead trees adjacent to the water at the area, despite knowing that the trees were used by swimmers; (2) failing to sound the depths of the water and determine the presence and nature of dangerous obstructions as required by the California Resort Act, California Health and Safety Code §§ 116000, et seq.; and (3) failing to warn of such hazards.
Defendant moved for summary judgment, contending that California Civil Code section 846 renders the United States immune from liability. Defendant further contends that the California Resort Act does not apply to Lake Sonoma.
The Court held a hearing on April 3, 2001. Both parties appeared through their counsel of record. Upon consideration of the parties' arguments at the hearing and their submissions, and for the reasons set forth below, the Court enters the following order.
FACTUAL BACKGROUND
The following facts are undisputed. In the late afternoon of June 15, 1997, Plaintiff, a twenty-year old male, and a number of his friends and cousins gathered at City Park in Cloverdale, California, to drink beer, barbecue and hang out. Decl. of Scott T. Nonaka ("Nonaka Decl.") Ex. F (J. Lopez Dep.) at 28:14-29:14; Nonaka Decl. Ex. C (M. Lopez Dep.) at 29:8-30:5. Plaintiff recalls consuming four or five beers at City Park. Nonaka Decl. Ex. A (A. Colin Dep.) at 77:12-15. After a couple of hours, Plaintiff and about ten of his cousins and friends left City Park and drove to Yorty Creek at Lake Sonoma Warm Springs Dam ("Lake Sonoma"). The group took several cars and Plaintiff drove one of them. Nonaka Decl. Ex. G (C. Menicucci Dep.) at 18:22-19:14. They arrived at around 6:30 or 7:00 in the evening. Id.
Shortly after arriving at Lake Sonoma, Plaintiff, Manuel Lopez, Ricky Lopez and Joel Lopez decided to swim across the lake and jump out of a tree whose limbs extended out over the water. Decl. of John DeMeo ("DeMeo Decl.") Ex. M (M. Lopez Dep.) at 35:2-36:3. Plaintiff got to the tree first, climbed to the lowest branch and jumped. Nonaka Decl. Ex. B (M. Lopez Dep.) at 39:6-7. Manuel did the same. Id. at 39:7-11. Plaintiff climbed the tree again, but climbed to a higher branch, which he estimated was fifteen feet high. Nonaka Decl. Ex. A (A. Colin Dep.) at 71:12-14. According to Plaintiff's cousins, the branch broke and Plaintiff fell headfirst into shallow water. Nonaka Decl. Ex. B (M. Lopez Dep.) at 48:24-49:26. The water depth was approximately four feet. DeMeo Decl. Ex. W. Tragically, Plaintiff suffered a spinal cord injury and is now a quadriplegic. See Nonaka Decl. Ex. J.
LEGAL ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. The court may not weigh the evidence. See id. at 255. Rather, the nonmoving party's evidence must be believed and "all justifiable inferences must be drawn in [the nonmovant's] favor." United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty Lobby, 477 U.S. at 255).
The moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatory answers, admissions and affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving party's burden is discharged when it shows the court that there is an absence of evidence to support the nonmoving party's case. See id. at 325.
A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Liberty Lobby, 477 U.S. at 250. However, the opposing party need not produce evidence in a form that would be admissible at trial in order to avoid a summary judgment. See Celotex, 477 U.S. at 324. Nor must the opposing party show that the issue will be resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-49. All that is necessary is sufficient evidence supporting the asserted factual dispute and requiring a jury or judge to resolve the parties' differing versions of the truth at trial. See id.
B. Federal Tort Claims Act
The Federal Tort Claims Act ("FTCA") renders the United States liable for "injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); Yanez v. United States, 63 F.3d 870, 872 (9th Cir. 1995). Under the FTCA, the substantive law of the forum state applies. Richards v. United States, 369 U.S. 1, 9 (1962). Accordingly, California law applies. 28 U.S.C. § 2674; Yanez, 63 F.3d at 872.
C. California Civil Code section 846
The California Recreational Use Statute, California Civil Code section 846, provides:
An owner of any estate or any other interest in real property . . . owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section . ..
This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.
It is undisputed that Plaintiff was using the land for recreational purposes when his injuries occurred. See Mem. of PA in Supp. of Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 5:20-21 ("Pl.'s Opp'n"). In fact, Plaintiff went to Lake Sonoma to "cool down" and "go swimming." See DeMeo Decl. Ex. D (A. Colin Dep.) at 56:9-18.
Because the FTCA renders the United States liable only to the extent that a private individual would be under like circumstances, California Civil Code section 846 applies to the United States where, as here, it is sued as a landowner. See Mattice v. United States, 752 F. Supp. 905, 909 (N.D.Cal. 1990) (citing Toomey v. United States, 714 F. Supp. 426, 428 (E.D.Cal. 1989) (although § 846 does not apply to property owned by California public entities, it does apply to property owned by the United States because under the FTCA "the federal government's liability is to be determined by a private person standard")).
Therefore, Plaintiff may only prevail against the United States as a landowner where it raises a genuine issue of material fact as to the existence of one or more of the three exceptions to immunity under section 846: willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; the provision of consideration for permission to enter the property; or an express invitation to enter. See Cal. Civ. Code § 846. Here, Plaintiff properly concedes that he was not expressly invited to the property within the meaning of the statute. See Pl.'s Opp'n at 5, fn. 1; Ravell v. United States, 22 F.3d 960, 962-63 (9th Cir. 1994) (personal invitation required). Therefore, the Court will address the first two exceptions only.
1. Willful or Malicious Failure to Guard or Warn Against a Dangerous Condition, Use, Structure or Activity
"The meaning assigned to willful misconduct by the California courts is any intentional act of an unreasonable character undertaken in disregard of a known risk or a risk so obvious that the actor must be taken to have been aware of it, and so great as to make resulting harm highly probable." Spires v. United States, 805 F.2d 832, 834 (9th Cir. 1986) (citing Rost v. United States, 803 F.2d 448, 451 (9th Cir. 1986)). Willful or malicious conduct is not presumed. The plaintiff has the burden to "specify the particular acts upon which the willful misconduct of the person that is charged." Charpentier v. Von Geldern, 191 Cal.App.3d 101, 108 (1987).
To establish willful or malicious misconduct, three essential elements must be present: "(1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to possible, result of the danger; and (3) conscious failure to avoid the peril." Spires, 805 F.2d at 834 (citing Morgan v. Southern Pacific Transp. Co., 37 Cal.App.3d 1006, 1012 (1974)). Constructive knowledge is measured by an objective standard: "whether a reasonable man under the same or similar circumstances as those faced by the actor would be aware of the dangerous character of his conduct." Rost, 803 F.2d at 451 (citing Chappell v. Palmer, 236 Cal.App.2d 34, 37 (1965)).
Here, Plaintiff contends that the government (1) had actual or constructive knowledge of the peril posed by climbing, jumping and diving from trees at the water's edge at Lake Sonoma; (2) had actual or constructive knowledge that injury was a probable result of the danger, relying on the fact that the government knew that the Yorty Creek swim area was a popular swimming spot and that park visitors climbed, jumped and dived from trees at the water's edge; and (3) consciously failed to avoid the peril, despite a written policy mandating the removal of dead trees and rope swings, as well failed to post signs warning of the danger of jumping or diving from trees into the shallow water.
a. Actual or Constructive Knowledge of the Peril to be Apprehended
Plaintiff argues that the government had actual or constructive knowledge of the peril posed by climbing jumping and diving from trees at the Yorty Creek swim area. The evidence shows and Defendant concedes that it had general knowledge of the peril posed by climbing, jumping and diving from trees at Yorty Creek. See Def.'s Mem. of PA in Reply to Pl.'s Opp'n to the Mot. for Summ. J. at 3:17-19 ("Def.'s Reply"). Defendant argues, however, that it did not have actual or constructive knowledge of the peril posed by climbing, jumping and diving from the specific tree from which Plaintiff fell.
It is undisputed that park rangers at Lake Sonoma were aware that swimmers would jump and dive from trees at the water's edge. See DeMeo Decl. Ex. G (T. Golden Dep.) at 47:22-49:23; DeMeo Decl. Ex. H (M. Griffin Dep.) at 47:25-48:4; DeMeo Decl. Ex. Q (K. Rios-Peterson Dep.) at 87:19-88:18. The evidence further shows that park rangers considered such activity dangerous and were instructed to warn visitors of the dangers associated with jumping or diving from trees. See DeMeo Decl. Ex. Q (K. Rios-Peterson Dep.) at 88:7-18; DeMeo Decl. Ex. J (S. Leonard Dep.) at 17:16-23. Furthermore, the problem of park visitors climbing, jumping and diving from trees at the water's edge was discussed during ranger meetings conducted by either the park's manager or the senior park rangers. See DeMeo Decl. Ex. V (S. Wilson Dep.) at 65:9-66:12; DeMeo Decl. Ex. J (S. Leonard Dep.) at 29:3-22.
The evidence also establishes that park rangers considered the dead trees and limbs in the park to be a dangerous condition. See DeMeo Decl. Ex. F (P. Crowley Dep.) at 69:23-71:18; DeMeo Decl. Ex. J (S. Leonard Dep.) at 24:14-20. In fact, a written policy mandated the removal of dead trees as personnel were available. DeMeo Decl. Ex. Y.
Defendant contends, however, that Plaintiff has failed to raise a triable issue of fact as to actual or constructive knowledge of the peril because Plaintiff failed to show that Defendant knew that the particular tree that Plaintiff fell from was dead or that people had been jumping from it. See Judd v. United States, 650 F. Supp. 1503, 1512 (S.D.Cal. 1987) (finding no willful or malicious misconduct, in part, because there was no evidence that Forest Service personnel actually knew that persons dove from the very high rock from which the plaintiff attempted to dive, as opposed to the lower rocks which they knew people used). Park Manager Peter Crowley testified that if he were aware that people were jumping from a particular dead tree, he would have had it removed, but that he was not aware that people were jumping from the tree from which Plaintiff fell. Nonaka Decl. Ex. L (P. Crowley Dep.) at 70:23-71:18. Similarly, Park Manager Steven Leonard testified that although he knew there were some dead trees in the area of the accident, he does not recall any reports that people were climbing those trees. Nonaka Decl. Ex. Q (S. Leonard Dep.) at 35:2-25.
The Court is not persuaded that Defendant must know that the very tree from which Plaintiff fell was a particular hazard when it admittedly knew that visitors were jumping from trees in the Yorty Creek area and that there were dead trees in the immediate vicinity. This evidence, however, does go to the issue of whether Defendant consciously failed to avoid the peril or took sufficient steps to limit the danger to defeat any triable issue of material fact on willfulness.
b. Actual or Constructive Knowledge that Injury Was a Probable, as Opposed to Possible, Result of the Danger
Plaintiff argues that the government had actual or constructive knowledge that injury was a probable result of jumping or diving from trees. Defendant makes several arguments in response, some more persuasive than others. Defendant again argues that it did not have the requisite actual or constructive knowledge that injury was a probable result from jumping or diving from the tree from which Plaintiff fell. Again, the Court is not persuaded that Defendant must know that injury was a probable result of jumping or diving from the particular tree from which Plaintiff fell.
More persuasively, Defendant argues, and Plaintiff concedes, that there had been no similar accidents at Yorty Creek prior to Plaintiff's. The only evidence of any accident from jumping or diving from a tree at the Yorty Creek swim area included a minor, unreported injury. See DeMeo Decl. Ex. P (J. Menicucci Dep.) at 32:10-23. Peter Crowley, Park Manager since 1996, did not recall anyone being injured at the park due to swinging from trees or jumping from tree limbs into the lake. See Nonaka Decl. Ex. L (P. Crowley Dep.) at 37:6-13. Similarly, Tom Golden, Park Ranger since 1996, did not know of any injuries occurring from jumping or diving out of trees. Nonaka Decl. Ex. M (T. Golden Dep.) at 24:20-25:7. Susan Wilson, Park Ranger since 1990, also testified that she did not know of any previous accident before Plaintiff's incident where anyone was injured from jumping from a tree. Nonaka Decl. Ex. O (S. Wilson Dep.) at 25:2-10.
This lack of any previous accident that would put Defendant on notice that injury was a probable result of jumping or diving from trees at Yorty Creek, while not by itself conclusive, cuts strongly against any triable issue of fact on willfulness. The courts have relied heavily on the defendant's knowledge of prior accidents or lack thereof in ruling on this element, even though by itself neither is determinative.
For example, in Finneman v. United States Dept. of Transp., 1994 WL 172253, *4 (N.D.Cal. 1994), the plaintiff sustained several injuries when his bicycle struck the edge of a wooden plank on a trench and was thrown to the ground. The court granted the defendant's motion for summary judgment on the ground that there was no evidence that the plaintiff's injuries were probable in view of the fact that several other cyclists rode over the trench safely. Id.; see also Toomey v. United States, 714 F. Supp. 426, 428 (E.D.Cal. 1989) (finding no evidence of willful misconduct, in part, because prior to the plaintiff's accident there had been no reported accidents involving the peril).
Conversely, the court in Von Tagen v. United States, 557 F. Supp. 256, 260-61 (N.D.Cal. 1983), denied the defendant's motion for summary judgment based, in part, on evidence of prior accidents. There, the plaintiff submitted reports of seven similar accidents that occurred prior to the plaintiff's accident. The court held that the accident reports were evidence from which a trier of fact could infer that the government had knowledge of the hazard and of the probability of injury, especially since the defendant did not submit evidence to refute these inferences. Id. at 261.
By contrast, in Mattice v. United States, 969 F.2d 818 (9th Cir. 1992), even though there had been nine accidents on the mountain road on which the plaintiff was injured, the court found lack of actual or constructive notice of the danger because none of the accidents occurred at the particular overlook where the plaintiff was injured or were caused by breaking through the guardrail, as the plaintiff had. Id. at 823. Further, even the government's knowledge of prior damage to the guardrail showing that it had been hit before was not enough to create a triable issue of fact as to the knowledge of the probability of injury because: "None of the vehicles went through the guardrail, however, and there [was] no evidence that anyone was injured." Id. at 823.
Plaintiff attempts to minimize the significance of the lack of prior accidents by referring to language that "abnormally favorable results" do not automatically negate liability. See Rost, 803 F.2d at 451; see also Lostritto v. Southern Pacific Transp. Co., 73 Cal.App.3d 737, 745 (1974) ("adventitiously few" prior accidents). While it is true that a plaintiff can make the requisite showing of probability despite the lack of prior accidents, the plaintiff can only do so through other evidence of an especially dangerous situation that shows that the lack of prior accidents is indeed abnormally favorable. In Rost, the government knew that a dangerously bent steel crossbar on a gate on a road protruded nine inches into oncoming traffic and arguably needed to be repaired, yet failed to do so for one year. Id. at 451. The court concluded: "The safety margin of nine inches is so inconsequential under these facts as to make it not only probable but certain that injury would follow." Id. This unusually strong showing of the proverbial "accident waiting to happen" overcame the lack of prior accidents during the year that the government failed to repair the gate. By contrast, here there is no evidence of such an abnormally dangerous condition, and the hazard of swimmers at Lake Sonoma jumping from dead trees existed for much longer than a single year without causing any known accident.
Plaintiff also cites to a report that notes that unreported accidents must be presumed to have occurred. See DeMeo Decl. Ex. VV. This obvious proposition bears on the first element, actual or constructive knowledge of the peril. It does not show that Defendant knew injury was probable, as opposed to possible.
In Lostritto, supra, the evidence showed a newspaper report of a prior fatal accident from a similar dive off the railroad trestle where the plaintiff was injured, as well as a lifeguard's report to the railroad that several people had been injured diving and jumping from the trestle. Lostritto, 73 Cal.App.3d at 744-45. The Court relied on this evidence in rejecting the railroad's argument that it had no notice of the high probability of harm, and commented that "the matter of probability is not to be assessed solely by the number of prior accidents, which adventitiously may have been few, but by all the circumstances." Id. at 745 (emphasis added). Here, Defendant did not even know of one prior accident, much less a fatal one. Further, the other circumstances on which Plaintiff relies do not raise a triable issue of fact that Defendant had actual or constructive knowledge that injury was a probable, as opposed to possible, result. Even assuming that Plaintiff did raise a triable issue of fact on the second element, the Court concludes below that he did not do so as to the third element, conscious failure to avoid the peril.
c. Conscious Failure to Avoid the Peril
Plaintiff argues that Defendant's steps so inadequately protected against a known danger that the failure to warn could be considered willful. Defendant argues that the Army Corps took sufficient affirmative steps to prevent accidents of this kind from occurring to avoid a triable issue of fact as to willfulness, even if arguably the steps were tantamount to negligence.
The government presented evidence that park rangers patrolled the Yorty Creek area, on boat and by truck, and if a ranger witnessed a visitor jumping or diving from a tree, the ranger warned the visitor of the dangers associated with jumping and diving from trees. The visitor was also told that it was not safe and to get out of the tree. See Nonaka Decl. Ex. O (S. Wilson Dep.) at 66:6-19; Nonaka Decl. Ex. Q (S. Leonard Dep.) at 17:6-19; DeMeo Decl. Ex. X at ¶ 4. According to Defendant, such patrolling occurred every day, see Nonaka Decl. Ex. O (S. Wilson Dep.) at 12:1-5, and during the summer months three or four times a day, see Nonaka Decl. Ex. P (E. Pierce Dep.) at 56:4-57:11. Plaintiff is correct that the precise frequency of the patrols is unclear. While Park Ranger Eric Pierce testified that rangers patrolled the area three to four times a day in the busy season, DeMeo Decl. Ex. S (E. Pierce Dep.) at 56:4-8, Park Manager Perry Crowley testified that there was one patrol in the morning and one patrol in the late afternoon. DeMeo Decl. Ex. F (P. Crowley Dep.) at 90:2-12. Plaintiff's witnesses testified that they rarely saw rangers at Yorty Creek and those rangers just drove through the parking lot without getting out of their vehicles. See DeMeo Decl. Ex. O (C. Menicucci Dep.) at 37:19-38:17 ("[rangers] are not there a lot"); DeMeo Decl. Ex. M (M. Lopez Dep.) at 54:10-57:17 (rangers are present, but "don't ever get off their trucks, they just cruise."). These witnesses did not state, however, that they ever saw the rangers observe them or anyone else climbing or jumping from trees, but failed to warn them to stop. Furthermore, because patrolling, by its very nature, is sporadic, the fact that these witnesses' visits did not coincide with the patrols is not inconsistent with the government's evidence of patrols of at least twice a day in summer, as summer days are long. Accordingly, this evidence does not rise to the level of a material dispute of fact when considered in combination with the other evidence, including the fact that the patrols were not the only method of warning the public.
In addition to the patrols, a sign was posted at the Yorty Creek picnic area warning: "Swim At Your Own Risk." See Nonaka Decl. Ex. H (J. Menicucci Dep.) at 29:25-30:4. Plaintiff argues that no signs were posted specifically warning of the danger of dead trees or limbs, let alone the dangers of climbing, jumping or diving from such trees. DeMeo Decl. Ex. H (M. Griffin Dep.) at 48:10-17. Yet a warning against the risk of swimming would encompass, a fortiori, jumping off a tree to swim in the water below. At most, the failure to post more or different warning signs may be negligent.
Another sign read "Caution Lake Water Level Varies Watch For Obstructions." Id. at 37:17-38:7. This sign was located at the boat ramp and was not necessarily visible to swimmers. DeMeo Decl. Ex. WW; see also DeMeo Decl. Ex. F (P. Crowley Dep.) at 200:10-27.
Plaintiff also argues that the government failed to remove dead trees and dead limbs, despite a written policy in the Lake Sonoma Safety Plan providing for their removal:
Dead tree and dead limbs in established Recreation Areas will be removed as people power is available. Trees being used as `rope swings' will be removed. Ropes will be immediately removed from such trees.
DeMeo Decl. Ex. Y. The designated swimming area at Yorty Creek was marked off with a buoy line. DeMeo Decl. Exs. X, KK. It is undisputed that Plaintiff left this designated area and swam beyond the buoy lines to a tree 150 yards from the swimming beach that was in a wildlife management area. Id.
Park Manager Perry Crowley testified that the area where Plaintiff dove was not within the "recreation area" for purposes of this policy, since it was across from the developed swimming area. DeMeo Decl. Ex. F (P. Crowley Dep.) at 68:22-69:11. According to Park Manager Steven Leonard, however, the tree from which Plaintiff dove was within the recreation area. DeMeo Decl. Ex. J (S. Leonard Dep.) at 58:3-22. Even assuming that the policy applied in the area where Plaintiff fell, the uncontradicted evidence shows that the purpose underlying the policy was to protect those below from being injured by falling tree limbs, rather than to protect those climbing the tree since they were not supposed to do so. DeMeo Decl. Ex. J (S. Leonard Dep.) at 24:7-20.
More importantly, the policy about tree removal must be read in light of the uncontradicted evidence of the wildlife management policy that required preserving trees in the Yorty Creek area. Approximately 8,000 acres of Lake Sonoma, or roughly half of the park, is designated as a wildlife management area, including Yorty Creek. See Decl. of Perry Crowley in Resp. to Pl.'s Opp'n to Def.'s Mot for Summ. J. at ¶ 3. Trees ringing Yorty Creek are preserved as habitat for fish; as the lake level rises during the fall and winter months, the trees are submerged. Id. ¶ 4. The issue here is whether Defendant's conduct went beyond mere negligence to willful failure to avoid the peril. Even assuming that the policy applied to trees in the Yorty Creek area, not just the designated swimming area, which seems unlikely, any noncompliance with the policy would not rise to the level of willfulness given the competing policy of preserving wildlife habitat.
Significantly, Plaintiff did not fall from a tree with a rope swing or steps on it. If he had, he may well have raised a triable issue of fact as to whether Defendant engaged in willful misconduct by failing to remove what amounted to manmade and readily apparent attractive nuisances.
Furthermore, in every case cited by Plaintiff where summary judgment was properly denied or the plaintiff prevailed at trial on the issue of willful misconduct, the evidence showed far more egregious inaction by the defendant in the face of a serious peril well known to (and sometimes created by) the defendant, yet hidden from or unavoidable by the plaintiff. As the Ninth Circuit has observed, cases that "have upheld a claim of willful misconduct under California law have all involved a hidden peril." Mattice v. United States, 969 F.2d 818, 822 (9th Cir. 1992). Conversely, evidence that a risk is obvious is "a double-edged sword" because it justifies the landowner in assuming that visitors will take the danger into account, reducing the need to warn or take precautions. See id. at 822.
For example, in Miller v. United States, 945 F.2d 1464 (9th Cir. 1991), the plaintiff was injured while riding his motorcycle down a roadway that suddenly disappeared. No warning signs, barricades or other notices alerted drivers of the danger or prevented them from encountering the dangerous condition. Id. at 1467. The defendant admitted that it knew of the absence of the road in that area; knew that the roadway was used by off-road vehicles; knew that the absence of the road created a dangerous condition to recreational users of the road; and failed to warn of the dangerous condition. Id. Further, there was a genuine issue of material fact as to whether agents of the United States had removed the culvert, thereby creating the dangerous condition. Id. at 1466 n. 2. Based on this evidence, the Ninth Circuit reversed the district court's decision granting summary judgment and remanded the case.
Rost v. United States, 803 F.2d 448, 451 (9th Cir. 1986), also involved a hidden, manmade peril. There, the plaintiff was severely injured on a United States Forest road when he was impaled on a crossbar on a closure gate that had been bent out of shape into a "lance-like" point. The gate was camouflaged to drivers since it was dark green, unlighted, without warning signs, located at a curve in the road and backed up against flora. Id. at 451. Further, the defendant had known of the gate's bent and dangerous condition for at least a year before the accident, yet failed to repair it. Id. The Ninth Circuit affirmed the district court's finding of willful misconduct.
Similarly, in MacLeod v. United States, 1994 WL 860798 (C.D.Cal.), the plaintiffs suffered injuries when lightening struck a building and electrocuted the inhabitants. The building, located on the summit of Mt. Whitney, was used as a shelter for scientists conducting astronomical research and by hikers who sought shelter during storms. Id. at *1,4. The court held that the government's actions constituted willful misconduct because the defendant knew that people were using the building as a shelter; knew that the injury was a probable result; and failed to remedy the situation even though the defendant possessed a plan to provide lightning protection for more than three years prior to the accident in question. Id. at *8.
In Termini v. United States, 963 F.2d 1264, 1265 (9th Cir. 1992), a motorist was injured when his car went over a cliff on a road within a national forest. There, the defendant failed to place any warning signs on a spur road that appeared to be a main road but instead ended abruptly at a cliff. In fact, drivers could not see the peril until they were just forty feet from the precipice. Id. The court held that:
The United States' actions in building and maintaining a road that ends, without warning, at a cliff and which allows absolutely no margin for driver or mechanical error, or for adverse natural conditions, constituted willful and malicious conduct.
Id. at 1266. The court distinguished between the inherent danger of mountain roads in general and the hidden danger of that particular road, finding that the presence of an unmarked, unforeseeable danger raised the government's failure to warn to the level of willful misconduct. Id. at 1267.
By contrast, in Mattice, supra, the plaintiff sustained damages when she drove off a cliff at a national park. The court granted the defendant's motion for summary judgment based on lack of willfulness because the inherent risks of driving on a mountain road are obvious and because no hidden peril existed on the road. Id. at 822. Unlike Termini, the road at issue did not end abruptly at a precipice. See also Finneman, 1994 WL 172253 at *4 (finding that there was no hidden peril since the wooden planks lying across the path were readily apparent).
At oral argument, Plaintiff relied on Soto v. United States, 748 F. Supp. 727 (C.D.Cal. 1990), where the plaintiff became a quadriplegic when he dove into a pool located in a national forest. Although swimming and diving were officially banned at the pools, hundreds of swimmers and divers swam there every weekend throughout the summer. Id. at 729. Unlike here, however, the government in Soto made no effort, oral or written, to enforce this ban, even as it vigorously enforced the parking and fire regulations. Id. at 731. In fact, there was not even one sign indicating that such activity was prohibited or risky. There was no systematic procedure for the reporting of accidents and none of the district personnel were properly trained in safety procedures. Id. Furthermore, just two and a half months before the plaintiff's incident, there was a drowning accident. Id. at 730.
Plaintiff also relied on Caplan v. United States, 877 F.2d 1314, 1317 (6th Cir. 1989), for the proposition that, unlike other types of natural hazards, the risk created by unstable dead trees is not as obvious to an invitee as to a landowner. But Caplan does not aid Plaintiff. There, the plaintiff was injured when a thirty-foot long dead tree fell and struck him. Id. at 1315. All the trees in the area, including the tree that injured the plaintiff, had been injected with herbicide eight years earlier as part of the government's mass herbicide program to clear out low quality trees. Id. The hidden peril from the dead trees in Caplan went well beyond the normal peril of some trees dying from natural causes as in this case, and, indeed, the government played an active role in killing the trees. Thus, in Caplan, the landowner had superior knowledge of the hidden peril by deliberately creating it and such peril was not apparent to an ordinary, reasonable individual who would know of the normal risk of trees dying naturally, but not of the abnormal risk of their mass poisoning.
Here, the dangers of jumping or diving from a tree into an unknown depth of water is open and obvious to a reasonable person. Unlike Termini and Miller, supra, where a visitor would not know of the potential danger until it was too late to react, here, the dangers of jumping or diving into a lake do not involve a hidden peril in the sense that Ninth Circuit precedent uses that term.
In conclusion, Plaintiff has not raised a material issue of fact that Defendant consciously failed to act to avoid the peril. The fact that Defendant knew of possible dangers but did not take all possible measures to protect the public does not mean Defendant acted willfully or maliciously. See Hannon v. United States, 801 F. Supp. 323, 328 (E.D.Cal. 1992). In fact, the evidence shows that Defendant patrolled the area in the summer for compliance with park rules, including telling visitors seen in trees near the lake not to climb or jump, and posted a warning sign near the swimming area. Cf. Spires v. United States, 805 F.2d at 832-33 (9th Cir. 1986) (reversing judgment in favor of the plaintiff who was injured when jogging at night when he fell into a ditch at a storm sewer outfall, even though the government never posted any warnings despite knowing that similar ditches, albeit smaller, had formed periodically in the past and visitors often walked and jogged there at night without flashlights). This evidence, coupled with the lack of any prior reported accidents and the lack of a hidden peril shows that Defendant's action did not rise to the level of willfulness. While the evidence viewed in the light most favorable to Plaintiff arguably shows that Defendant acted negligently, negligence is insufficient to overcome section 846 immunity.
2. Consideration Given for Permission to Enter Property
The California Recreational Statute does not extend immunity to landowners where permission to enter the land for recreational purpose was granted for consideration. The rationale for this exception to immunity is that the landowner who derives an economic benefit from opening land to public recreation has an incentive to do so, coupled with some financial ability to take safety precautions; by contrast, the landowner who derives no profit from permitting public recreation would likely close his land to public recreation if faced with liability for mere negligence. See Ducey v. United States, 713 F.2d 504, 510-11 (9th Cir. 1983). The term "consideration" may encompass more than a direct entry fee, provided that a benefit is conferred on the landowner. Howard v. United States, 181 F.3d 1064, 1069 (9th Cir. 1999); see also Johnson v. Unocal Corp., 21 Cal.App.4th 310, 316 (1993) ("a present, actual benefit" must exist) (citing A.J. Indus., Inc. v. Ver Halen, 75 Cal.App.3d 751, 761 (1977)).
It is undisputed that neither Plaintiff nor anyone in his party paid any money to use the lake or recreation area or made any purchases at Lake Sonoma on the date of the accident. Although Plaintiff stated in his deposition that he believed that his brother, Luis Lopez, paid two dollars to enter the recreational area, he admitted that he did not actually see his brother do so and Luis Lopez himself testified that he did not. See Nonaka Decl. Ex. E (L. Lopez Dep.) at 31:9-23. Furthermore, Plaintiff's erroneous belief that Lake Sonoma charged a day use fee was based solely on his experience at a different park that charged a fee for parking and recreational use. See DeMeo Decl. Ex. D (A. Colin Dep.) at 62:16-24. The testimony of several friends and relatives corroborate that neither Plaintiff nor any of his companions paid a fee the day of the accident. See Nonaka Decl. Ex. B (M. Lopez Dep.) at 36:12-25; Nonaka Decl. Ex. H (J. Menicucci Dep.) at 30:16-25; Nonaka Decl. Ex. F (J. Lopez Dep.) at 35:11-25; Nonaka Decl. Ex. I (J. Barajas Dep.) at 39:4-17. Furthermore, it is undisputed that the United States did not charge any fee for day use of the swimming and picnic facilities at Lake Sonoma; use like Plaintiff's was free of charge. Rather, the United States only charged a fee for overnight camping and boat launching.
Plaintiff's attempt to rely on Graves v. United States Coast Guard, 692 F.2d 71 (9th Cir. 1982) is unavailing. There, the plaintiff sued under the FTCA for injuries from diving off a cabana into a river. He gave money to his traveling companion, who in turn paid the government's lessee for the privilege of camping near the river. Id. at 73. The Ninth Circuit held that California Civil Code section 846 did not shield the government from liability because permission to use the land was granted for consideration. The court reasoned that by paying for the cabana, the plaintiff also got access to the river. Id. Here, by contrast, Plaintiff and his companions paid no fee to obtain access to the lake, either directly or indirectly.
This case is also unlike Ducey, 713 F.2d at 512, where all the plaintiffs had regularly purchased goods from the cafi-store and all but one had rented boat slips or trailer spaces. Although visitors to the national recreational area paid no direct fee to enter, the Ninth Circuit held that the government's receipt of one and three-fourths percent of its concessionaire's gross annual receipts from sales at the cafi-store and from boat slip and trailer space rentals located on government property constituted consideration under the Nevada Recreational Use statute immunity exception. Id. at 509-10. The Ninth Circuit reasoned that such a broad reading of the statute comported with the general policy of "differentiating the entrepreneur-landowner whose land is open for business reasons from the landowner whom the statute encourages to open his land on a gratuitous basis by the promise of immunity." Id. at 514; but see Jones v. United States, 693 F.2d 1299, 1303 (9th Cir. 1982) (finding that although the plaintiff paid a fee to rent an inner tube, no fee was charged for entry on the land or for use of the land, rendering the consideration exception inapplicable).
The relevant portion of the Nevada Recreational Statute provides: "this section does not limit the liability which would otherwise exist for . . . (2) injury suffered in any case where permission to participate in recreational activities was granted for a consideration. . . ." N.R.S. § 41.510(3)(a)(2). The counterpart provision in the California statute applies to consideration for permission to enter. Arguably, "permission to enter" in the California statute imposes a more specific requirement of an entry fee or its equivalent.
Here, unlike Ducey, supra, there is no evidence that Plaintiff purchased anything from any concessionaire at Lake Sonoma, much less paid a fee to the United States. Plaintiff argues that "across the lake from the Yorty Creek Swim Area a private concessionaire leases lake-front land from the Government on which it operates the Lake Sonoma Marina, which includes paid parking and boat launching, rented boat slips, and grocery and fishing tackle stores." Mem. of PA in Supp. of Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 18, fn. 1 (citing to DeMeo Decl. Ex. J (S. Leonard Dep.) at 19:15-20:12). The deposition testimony that he cites, however, makes no reference to either a private concessionaire leasing property from the government or to the existence of a grocery and fishing tackle store. Even assuming the existence of such a store, here, unlike Ducey, there is no evidence that Plaintiff ever purchased any goods from any concessionaire at Lake Sonoma either on the day of the accident or, indeed, on any day. Nor did Plaintiff gain the benefit of diving and swimming in the lake through purchases.
Additionally, Plaintiff argues that because the Army Corps charges fees to launch boats at Yorty Creek and to camp overnight at Lake Sonoma, the consideration exception applies. Plaintiff points to no cases, however, that construe the consideration exception so broadly. To the contrary, the court in Hannon v. United States, 801 F. Supp. 323 (E.D.Cal. 1992), rejected a similar argument. There, the plaintiff argued that although he paid no fee to enter a recreational area, the payment of fees by others for entry into campgrounds elsewhere within the recreational area, including the area where the plaintiff was injured, rendered the considerations exception applicable. Id. at 327. The court rejected the plaintiff's argument based on the fact that he was not injured at a campsite, nor did he gain access to the site of his injury from a campsite. See also Judd v. United States, 650 F. Supp. 1503, 1512 (S.D.Cal. 1987) (consideration exception did not apply even though a fee was charged for use of campsites, because the plaintiff's injury occurred at an undeveloped site one-quarter of a mile away from any campground site); Casas v. United States, 19 F. Supp.2d 1104, 1105-08 (C.D.Cal. 1998) (consideration exception did not apply where the plaintiff entered military station without paying a fee in order to run a race and had not yet paid the fee for the race when injured).
Finally, Plaintiff argues that the considerations exception applies even though the United States does not charge a fee for permission to enter Lake Sonoma, because Lake Sonoma is designated as a United States Fee Area pursuant to Congressional Statute. DeMeo Decl. Ex. QQ. Prior to June 1996, Lake Sonoma was under the jurisdiction of the Army Corps' Sacramento District. In 1994, Congress gave the Army Corps of Engineers the authority to collect camping fees, boat launch fees and day use recreation fees at recreation areas that it operated, including areas like Lake Sonoma. According to the undisputed evidence, however, although the government could have collected day-use fees at Lake Sonoma, it chose not to. See Decl. of James Sandner in Resp. to Pl.'s Opp'n to Def.'s Mot. for Summ. J. at ¶ 14.
Plaintiff cites no authority for the proposition that because the United States could have charged a fee although it did not, the consideration exception applies. Not only is there a dearth of precedent for this argument, but it flies in the face of the policy underlying this exception to immunity. The California Legislature conferred immunity from liability for negligence upon landowners who make their property available to the public gratuitously in order to encourage the owners to do so. The Legislature carved out an exception for landowners who gain an economic benefit from allowing recreational use on the theory that the profit incentive would offset the disincentive created by exposure to liability for negligence. Here, the government chose to make Lake Sonoma available for day use without charging any fee and derived no economic benefit from recreational use like Plaintiff's. That the government — like most private landowners — could have charged a fee had it chosen to do so does not alter the basic fact that it did not.
d. California Health and Safety Code §§ 116000, et seq.
Plaintiff argues that Lake Sonoma is a resort within the meaning of the California Resort Act, California Health and Safety Code §§ 116000, et seq. The Resort Act requires resorts to post signs indicating water depth and obstructions. Section § 116010 provides:
No person shall maintain a resort unless signs indicating in plain letters the depth of the water, the location of pools or eddies, and the presence and direction of currents of water are placed and maintained in the water during the season when bathing and swimming are permitted or invited.
Cal. Health Safety Code § 116010. The Resort Act defines a "resort" as "any public bathing or swimming place or resort on a river or stream." Cal. Health Safety Code § 116000. Section 116005 imposes a duty on resort owners to sound for dangers concerning the water depth and locate the presence of dangerous obstructions in a stream or river.
California Health Safety Code § 116005 provides: "no person shall maintain a resort unless he or she carefully sounds the depth of water and locates the eddies and pools and determines the presence and nature of dangerous currents, sunken logs, rocks, and obstructions in the stream or river."
Although the remedies specified under the statute are criminal, Plaintiff argues that the statute establishes a standard of care that is breached by failure to comply with the specific duties that the statute imposes. Further, as this more specific statute does not irreconcilably conflict with the general immunity conferred by the California Recreational Statute, the Resort Act provisions control. See Donaldson v. United States, 653 F.2d 414, 418 (9th Cir. 1981). Therefore, resorts within the meaning of the California Resort Act must comply with its specific duties regardless of the immunity otherwise extended to landowners under the more general provisions of the California Recreational Statute.
The California Health Safety Code only imposes duties on operators of a "resort" as defined by the statute. Very few cases interpret the definition of "resort." In Judd v. United States, 650 F. Supp. 1503, 1510 (S.D.Cal. 1987), the court found that the statute was originally directed at commercial establishments along the Russian River between 1900-1911. The court found that "common sense dictate[d] that a stream or river is not a public bathing or swimming place merely because members of the public bathe or swim there. Rather, one must look at the purpose of the adjacent land owner, which can in part be determined by the access given to the public to the river or stream, and also by any facilities or amenities provided, such as dressing rooms or picnic tables." Id. at 1511.
Here, Lake Sonoma may be considered a "swimming place" as it provides the public access to a swimming area and amenities, such as picnic tables. Nothing in the statute specifically requires a property to contain overnight facilities to qualify as a "resort." In any case, overnight camping sites are available at Lake Sonoma.
Plaintiff did not raise a triable issue of fact, however, that Lake Sonoma is either a river or stream. According to Black's Law Dictionary, a river is defined as "a natural stream of water, of greater volume than a creek or rivulet, flowing in a more or less permanent bed or channel, between defined banks or walls, with a current. . . ." Black's Law Dictionary (Sixth Edition). A stream is defined as "a watercourse having a source and terminus, banks, and channel, through which waters flow at least periodically, and it usually empties into other streams, lakes, or the ocean. . . ." Id. This definition is consistent with the statute's focus on eddies and currents, which occur in the flowing water of rivers and streams, not the standing water found in lakes. While Lake Sonoma is an artificial lake created by a dam, Plaintiff has not presented any evidence that Lake Sonoma has any currents or is a watercourse through which water flows. Rather, the exhibits attached to the Declaration of DeMeo illustrate a considerable body of standing water. DeMeo Decl. Exs. GG, HH. Even if Lake Sonoma were a river or stream within the meaning of the statute, it is questionable whether Plaintiff's injury resulted from an occurrence of the nature of which the California Resort Act was designed to prevent. In Chidester v. United States, 646 F. Supp. 189, 192 (C.D.Cal. 1986), the court held that the California Resort Act was inapplicable, in part, because the plaintiff was injured in a diving accident and not a drowning accident, the latter being an occurrence of the nature of which the California Resort Act was designed to prevent. See also Judd v. United States, 650 F. Supp. 1503, 1510 (S.D.Cal. 1987) (historically, the Act was enacted in response to the public outcry concerning drownings).
Defendant also argues that the California Resort Act is inapplicable based on Blackburn v. United States, 100 F.3d 1426, 1535 (9th Cir. 1996), which held that the "application of the Resort Act in the present case would violate the Supremacy Clause by constituting a direct and intrusive regulation by the State of the federal government's operations of its property at Yosemite." In Blackburn, the plaintiff sued for injuries from diving off a bridge in the famed Yosemite National Park. The government raised the "discretionary function" exception to liability under the FTCA. The plaintiff responded that the Assimilative Crimes Act, 18 U.S.C. § 13(a), which "assimilates" certain state crimes into federal crimes when committed on federal land, made the duties of the Resort Act mandatory. Id. at 1435. The Court held that the United States could not be liable under such a penal statute absent a waiver of sovereign immunity. Id. That holding does not necessarily apply here, where the government does not raise the discretionary function exception and Plaintiff does not rely on the Assimilative Crimes Act. Instead, Plaintiff contends that the Resort Act sets a civil standard of care for common negligence by resort owners under California law, which applies to the United States through the FTCA. It is also arguable that the other reasons advanced by the Court in Blackburn for its conclusion that the Resort Act did not apply to Yosemite's operations were based on the unique nature of national parks such as Yosemite. As the Court observed, over one thousand miles of streams and rivers run through Yosemite and placing signs and safety ropes along those many miles would violate the purpose of preserving its natural beauty. Id. at 1435-36 n. 5. By contrast, Lake Sonoma is an artificial lake created by a large man-made dam. In view of this Court's conclusion that the swimming area here is not a "resort" within the meaning of the Act, however, the Court need not decide this argument.
CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.