Harold John Schell v. United States of America et al

Filing 94

ORDER signed by Chief District Judge Kimberly J. Mueller on 08/29/2024 DENYING 73 Motion for Summary Judgment. Final Pretrial Conference for a trial for the liability phase is set for 10/4/2024 at 10:00 AM in Courtroom 3 (KJM) before Chief District Judge Kimberly J. Mueller. The parties shall meet and confer and file a joint pretrial statement no later than 3 weeks prior to the final pretrial conference. (Lopez, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Harold John Schell,

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Plaintiff,

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No. 1:20-cv-01737-KJM-EPG
ORDER

v.
United States of America,

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Defendant.

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Plaintiff Harold John Schell brings this action under the Federal Tort Claims Act against

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the United States of America for injuries he suffered at the Silver Lake Boat Launch in the Inyo

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National Forest. The United States moves to dismiss the complaint for lack of subject matter

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jurisdiction, or alternatively for summary judgment. For the reasons below, the court denies the

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motion.

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I.

BACKGROUND

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The following facts are undisputed and supported by the record unless otherwise noted.

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A.

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The Inyo National Forest spans 1.9 million acres. Mot. Reif Decl. ¶ 4, ECF No. 73-3.

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The forest is divided into four districts—Mono Lake, Mammoth, White Mountain and Mount

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Whitney. Id. ¶ 5. The North Zone encompasses Mono Lake and Mammoth and includes Silver

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Lake Boat Launch. Id. ¶¶ 4–5, 21. At all relevant times, Silver Lake Boat Launch was open to

The Silver Lake Boat Launch

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the public. Id. ¶ 22; Schell Dep. 99:7–16. 1 The Forest Service did not charge a fee for

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permission to enter the site, nor did it expressly invite any persons to come to the area. Mot. Reif

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Decl. ¶¶ 22–23.

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At all the relevant times, there was only one full-time Forest Service employee for the

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entire North Zone, the Assistant Recreation Officer. See id. ¶¶ 2, 9. In addition, the Forest

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Service hires seasonal employees called recreation technicians (Rec Techs), who work during the

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summer and the fall. Id. ¶ 26. The primary responsibility for Rec Techs is to empty trash and

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clean restrooms at the recreation sites in the North Zone. Id. ¶ 27. “On an ad hoc basis and as

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their workload permits, Rec Techs are expected to observe and assess any damaged property or

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hazards or other issues of concern, and to receive complaints or comments from visitors regarding

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the same.” Id. ¶ 28. Rec Techs prioritize areas intensively used by visitors, such as picnic areas,

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and sites that typically require an entrance fee. Id. ¶ 29. They also prioritize “imminent and

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significant hazards at recreation sites[.]” Id. ¶ 30.

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In 2013, the Forest Service removed a damaged boarding float—the moniker used to

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describe the concrete dock—at Silver Lake Boat Launch. Mot. Gamino Decl. ¶¶ 8–9, ECF No.

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73-11. After receiving complaints from recreational users regarding the removal of the boarding

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float, the Forest Service started working with the California Department of Boating and

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Waterways to update and rehabilitate Silver Lake Boat Launch. Id. ¶¶ 8–11. The first phase

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focused on replacing the boarding float, and this phase was completed in August 2017. Id. ¶ 13.

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The second phase, which was underway at the relevant times, is focused on updating and

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rehabilitating the site, including by demolishing and replacing the existing boat ramp, building

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vault-toilets and sidewalk, resurfacing and restriping the parking lot, and relocating the boarding

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float. Id. ¶¶ 14–17.

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Both parties have provided excerpts of plaintiff’s deposition. See Mot. Frueh Decl. Ex.
8, ECF No. 73-16; Opp’n Ucros Decl. Ex. 8, ECF No. 75-1. For deposition transcripts, the court
cites to the page numbers on the reporters’ transcript itself and not to the page numbers
automatically generated by the CM/ECF system.
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B.

Forest Service Manual

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The Forest Service Manual “contains legal authorities, objectives, policies,

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responsibilities, instructions, and guidance needed on a continuing bases [sic] by Forest Service

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line officers and primary staff to plan and execute assigned programs and activities.” Mot. Reif

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Decl. ¶ 10. Objectives of the Manual include: “[m]aximiz[ing] opportunities for visitors to know

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and experience nature while engaging in outdoor recreation,” developing and maintaining sites

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“consistent with the available natural resources to provide, to the extent practicable, a safe,

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healthful, esthetic, non-urban atmosphere,” and evaluating and mitigating natural hazards “as

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appropriate and practicable[.]” Forest Service Manual (FSM) § 2330.2, Mot. Reif Decl. Ex. 1,

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ECF No. 73-4. Several policies guiding Forest Service employees include prioritizing “public

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health and safety concern,” considering cost efficiency, and utilizing risk management assessment

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to make informed decisions. Id. § 2330.3. Other policies include: “[l]imit[ing] regulation,

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constraint[s], and supervision of recreational use to the minimum necessary for resource

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protection, visitor satisfaction, and safety.” Id. § 2331.03(3). In addition, in determining whether

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to close a site, the Forest Service is directed to “[m]ake every effort to stretch funds as far as

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possible to keep needed sites and facilities open to public use.” Id. § 2331.5(2). As part of this

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effort, the Forest Service should consider temporary closures, use of volunteers, and the “users’

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health and safety and level of resource damage.” Id. Health and safety items must be given the

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highest priority. Id. § 2332.

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In the section entitled “Public Safety,” the Manual provides: “[a]ll outdoor recreation

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activities on National Forest System (NFS) lands . . . have inherent risks due to the natural setting

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in which they occur.” Id. § 2332.1. “Individuals engaging in outdoor recreational activities on

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NFS lands assume these inherent risks.” Id. However, the Manual provides the Forest Service

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should, “[t]o the extent practicable, eliminate safety hazards from developed recreation sites.” Id.

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Also, it should “[i]nspect each public recreation site annually before the beginning of the

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managed-use season.” Id. “Maintain a record of the inspections and corrective actions taken with

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a copy of the operation and maintenance plan.” Id. And “[i]mmediately correct high-priority

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hazards that develop or are identified during the operating season or close the site.” Id. The
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Manual further states “[f]orest personnel should conduct periodic risk assessment as necessary to

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identify hazards, set priorities, allocate resources, implement action plans, and reassess

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effectiveness or risk reduction activities as appropriate, feasible, and consistent with Forest

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Service policy.” Id. § 2332.11. “Based on the findings of the risk assessments, Responsible

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Officials 2 should consider reasonable measures, within available resources, to mitigate those

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risks.” Id. However, “[i]in considering these measures, Responsible Officials should balance

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public recreation and safety with management of the natural, historic, or cultural settings in a

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manner that does not fundamentally alter that setting.” Id. Additionally, the Manual directs the

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Forest Service to “[m]aintain all improvements to the standard to which originally constructed or

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subsequently improved or modified,” and to “[s]chedule light or current maintenance . . . during

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the recreation season[.]” Id. § 2332.5

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C.

The Incident

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On September 27, 2018, plaintiff went to Silver Lake Boat Launch to fish on the lake.

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Schell Dep. 94:19–95:3. On his way from the lake shore to his car, plaintiff’s left foot slipped on

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a black, tarp-like material 3 between the edge of the pavement of the parking lot and a set of

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wooden stairs; the tarp extends some distance on either side of top of the stairs. Id. 71:15–18,

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73:5–13, 113:10–17; see also Photos, Reif Decl. Ex. 5, ECF No. 73-8 (with one photo

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incorporated into this order below). Plaintiff’s right foot then hit the pavement, causing him to

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fall forward. Id. 71:18–22, 113:13–17. As he ran forward to “right” himself or “break” himself,

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he tripped on something solid on the pavement and then hit his head on the running board of his

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truck. Id. 71:15–72:4, 73:18–74:17, 75:21–76:6. Among other injuries, he broke his neck. See,

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e.g., id. 71:15–74:10. In walking up to his car, plaintiff did not use the wooden stairs; rather he

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walked on the side of the stairs because the stairs moved and he was afraid to use them. Id. 69:9–

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The Manual does not define “Responsible Officers,” but those with responsibility
include Regional Foresters, Forest and Grassland Supervisors and District Rangers. See
§§ 2330.4 (Responsibility), 2330.41, 2330.42, 2330.43.
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The parties also describe the material as “geotextile fabric.” See Opp’n at 2, ECF No.
75; Reply at 15 n.9, ECF No. 77.
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23, 71:6–10, 112:13–113:9. He testified “I looked at [the set of stairs] and I knew right away that

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the thing had not been maintained and it’s a hazard.” Id. 109:20–21.

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The wooden stairs connect the parking lot to an area where there is a picnic table, located

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on the right side of the stairs when facing the parking lot. See Photos. Currently employed Forest

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Service staff do not appear to know the origins of the wooden steps or anything about their

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maintenance schedule. See Gamino Dep. 105:19–25, Mot. Frueh Decl. Ex. 11, ECF No. 73-19.

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See Photos (photo of tarp, wooden stairs, pavement and picnic table).

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Prior to plaintiff’s accident, there is no evidence in the record of other personal injuries
occurring in this location. See, e.g., Mot. Casey Decl. ¶¶ 4–5, ECF No. 73-13 (declaring no

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administrative claims concerned Silver Lake boat launch); Mot. Reif Decl. ¶¶ 32–35; Mot. Mason

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Decl. ¶¶ 3–6, ECF No. 73-10; Mot. Gamino Decl. ¶¶ 24–28. The Forest Service Public Affairs

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Office, which “occasionally receives complaints from the public about [Forest Service] facilities,”

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did not receive any complaints about the stairs or the area leading to the picnic table. Gamino
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Decl. ¶ 24; Gamino Dep. 90:20–91:16. There is also no evidence any Forest Service employee

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was aware of the presence of the tarp-like material. See, e.g., Mot. Reif Decl. ¶¶ 31–35; Mason

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Decl. ¶¶ 3–6; Gamino Decl. ¶¶ 24–28. However, the Forest Service was aware in 2016 that

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Silver Lake Boat Facility was in “poor condition” with “many cracks with vegetation growth” in

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the existing parking area where plaintiff was injured, which would continue to deteriorate if

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unattended. Project Grant Agreement at 92, 4 Opp’n Ucros Decl. Ex. 3, ECF No. 75-1. Defendant

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knew the “lake is popular with those seeking outdoor recreational opportunities,” id., and that

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failure to repair Silver Lake Boat Launching Facility would “result in operation under a state of

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disrepair [and] possible closure due to unsafe infrastructure,” id. at 105.

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D.

Procedural History

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After exhausting his administrative remedies, plaintiff filed this action under the Federal

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Torts Claims Act (FTCA) against the United States of America acting by and through the Inyo

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National Forest Service. See Compl. ¶¶ 1, 5, ECF No. 3. Plaintiff brings the following three

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claims: premise liability, negligence and negligent undertaking. Compl. ¶¶ 15–29. Discovery for

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the liability phase has closed, see Order Amending Scheduling Order, ECF No. 67; Joint Status

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Report, ECF No. 82, and defendant now moves to dismiss the case for lack of subject-matter

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jurisdiction, or alternatively summary judgment in favor of defendant based on immunity under

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California Civil Code section 846, Mot., ECF No. 73; Mem., ECF No. 73-1. The motion is fully

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briefed. Opp’n; Reply. The court held a hearing on the motion on July 12, 2024. Mins. Hr’g,

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ECF No. 92. Alexander Wheeler appeared for plaintiff and Joseph Frueh appeared for defendant.

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Id.

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II.

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LEGAL STANDARD
A motion under Federal Rule of Civil Procedure 12(b)(1) contests the court’s subject

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matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039–40 (9th Cir.

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2003); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-

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matter jurisdiction, the court must dismiss the action.”). A Rule 12(b)(1) jurisdictional attack
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When citing page numbers on filings, the court uses the pagination automatically
generated by the CM/ECF system.
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may be facial, based on the allegations in the complaint, or factual, based on extrinsic evidence

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beyond the complaint. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000); Safe Air for Everyone

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v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Here, defendant brings a motion to dismiss or, in

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the alternative for summary judgment and raises a factual attack based on extrinsic evidence,

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including deposition transcripts, to challenge the court’s subject matter jurisdiction. See Mem. at

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13.

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How a court reviews a factual attack depends on whether the jurisdictional and merits

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issues intertwine. “Ordinarily, where a jurisdictional issue is separable from the merits of a case,

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the court may determine jurisdiction by the standards of a Rule 12(b)(1) motion to dismiss for

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lack of jurisdiction.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). In such

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circumstances, a court “is not restricted to the face of the pleadings, but may review any evidence,

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such as affidavits and testimony, to resolve factual disputes concerning the existence of

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jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (citation omitted).

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The court may consider this evidence “without converting the motion to dismiss into a motion for

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summary judgment.” Safe Air for Everyone, 373 F.3d at 1039. The plaintiff has the burden of

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establishing the court’s subject matter jurisdiction. Edison v. United States, 822 F.3d 510, 517

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(9th Cir. 2016). While the court does not need to presume the truthfulness of the plaintiff’s

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allegations, the court must resolve factual disputes in the plaintiff’s favor. Id.

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However, where the jurisdictional issue and substantive claims are “so intertwined that

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resolution of the jurisdictional question is dependent on factual issues going to the merits,” the

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district court should apply a summary judgment standard. Autery v. United States, 424 F.3d 944,

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956 (9th Cir. 2005) (quoting Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987)). The

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court should grant the motion only if, viewing the evidence in the light most favorable to the non-

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movant, the “material jurisdictional facts are not in dispute and the moving party is entitled to

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prevail as a matter of law.” Rosales, 824 F.2d at 803; Suzuki Motor Corp. v. Consumers Union of

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U.S., Inc., 330 F.3d 1110, 1131–32 (9th Cir. 2003) (en banc).

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“[I]n the unique context of the FTCA, all elements of a meritorious claim are also

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jurisdictional.” Brownback v. King, 592 U.S. 209, 217 (2021). Here, the jurisdictional issue and
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substantive claims are intertwined such that the resolution of the jurisdictional question is

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dependent on the factual issues. For example, the question of whether the Forest Service knew or

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should have known about the dangerous conditions at Silver Lake Boat Launch is directly

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relevant to whether the discretionary function exception or immunity under the recreational use

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statute applies. See Young v. United States, 769 F.3d 1047, 1052 (9th Cir. 2014). Therefore, the

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court applies the summary judgment standard.

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III.

SUBJECT MATTER JURISDICTION

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A.

The FTCA and Discretionary Function Exception

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The FTCA provides a limited waiver of sovereign immunity and permits suits against the

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United States for damages for personal injury “caused by the negligent or wrongful act or

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omission of any employee of the Government while acting within the scope of his office or

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employment.” See 28 U.S.C. § 1346(b)(1); Berkovitz by Berkovitz v. United States, 486 U.S. 531,

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535 (1988). The FTCA contains several exceptions to its waiver of sovereign immunity. See 28

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U.S.C. § 2680. Relevant here, the “discretionary function” exception bars claims “based upon the

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exercise or performance or the failure to exercise or perform a discretionary function or duty . . .

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whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This exception

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“insulates certain governmental decision-making from judicial second guessing of legislative and

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administrative decisions grounded in social, economic, and political policy through the medium

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of an action in tort.” Myers v. United States, 652 F.3d 1021, 1028 (9th Cir. 2011) (internal marks

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and citations omitted). “In other words, ‘if judicial review would encroach upon th[e] type of

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balancing done by an agency, then the [discretionary function] exception’ applies.” O’Toole v.

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United States, 295 F.3d 1029, 1033 (9th Cir. 2002) (quoting Begay v. United States, 768 F.2d

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1059, 1064 (9th Cir. 1985)).

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To determine whether the discretionary function exception applies, the Supreme Court

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prescribes a two-part test. See United States v. Gaubert, 499 U.S. 315, 322–25 (1991); Berkovitz,

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486 U.S. at 536–37. First, a court asks whether the challenged action was discretionary, meaning

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the action involved an “element of judgment or choice.” Gaubert, 499 U.S. at 322 (quoting

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Berkovitz, 486 U.S. at 536). An action is not discretionary if a “federal statute, regulation, or
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policy specifically prescribes a course of action for an employee to follow,” because the

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employee “has no rightful option but to adhere to the directive.” Berkovitz, 486 U.S. at 536.

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Second, if the action was discretionary, the court determines “whether the challenged action is of

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the type Congress meant to protect—i.e., whether the action involves a decision susceptible to

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social, economic, or political policy analysis.” Whisnant v. United States, 400 F.3d 1177, 1181

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(9th Cir. 2005) (citing O’Toole, 295 F.3d at 1033–34).

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The discretionary function exception should be read in light of the FTCA’s purpose to

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“compensate individuals harmed by government negligence[.]” Terbush v. United States, 516

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F.3d 1125, 1135 (9th Cir. 2008) (quoting O’Toole, 295 F.3d at 1037) “As a remedial statute, it

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should be construed liberally, and its exceptions should be read narrowly.” Id. (internal

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quotations omitted) (quoting O’Toole, 295 F.3d at 1037). Although a plaintiff bears the burden of

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showing the court has subject matter jurisdiction, the United States has the burden of proving one

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of the FTCA’s exceptions to the waiver of immunity applies. Prescott v. United States, 973 F.2d

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696, 701–02 (9th Cir. 1992).

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B.

Discussion

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In the complaint, plaintiff challenges the following: (1) defendant’s failure to maintain the

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site where the dangerous and uneven pathway between the parking lot and lake is located and

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(2) defendant’s failure to warn visitors of the dangers posed by that pathway. See Opp’n at 8;

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Compl. ¶¶ 16, 22, 27. The court considers each in turn.

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1.

Failure to Maintain

As noted, the Forest Service Manual directs the Forest Service to “[i]nspect each public

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recreation site annually[.]” FSM § 2332.1. It also directs the Forest Service to “[m]aintain all

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improvements to the standard to which originally constructed or subsequently improved or

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modified.” FSM § 2332.5. Defendant argues the Manual does not provide direction on the

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“scope of these inspections or the criteria to apply,” Reply at 4, and “is silent on specifics as to

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when or how the Forest Service must endeavor to keep or repair any and all ‘improvements’ at or

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to their ‘standard’ state” and therefore, this mandate is discretionary, id. at 5. Defendant cites to

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Clark v. United States, 234 F. Supp. 3d 1127 (D.N.M. 2014), for the proposition that the “FSM
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does not require that recreation sites ‘be maintained in any particular way.’” Id. However, Clark

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did not address the language in section 2332.5. See 234 F. Supp. 3d at 1140–41. Rather, the

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court in that case considered the sections the plaintiff cited to, and found those provisions of the

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Manual did not require the “snow play area be maintained in any particular way.” Id.

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Here, the Manual does provide how improvements must be maintained. They must be

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maintained “to the standard to which originally constructed or subsequently improved or

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modified.” FSM § 2332.5. While the Forest Service may have discretion regarding how to carry

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out its responsibility to annually inspect recreation sites and maintain improvements, “it does not

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have discretion to abdicate its responsibility in this regard.” Whisnant, 400 F.3d at 1185. “When

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it does so, the discretionary function exception cannot shield the government from FTCA liability

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for its negligent conduct.” Id. Defendant has not shown it complied with the directive to conduct

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annual inspections at the Silver Lake Boat Launch area and has not shown it maintained the

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recreation site, including the wooden stairs and parking lot, to the standard to which they were

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originally constructed.

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Moreover, even if the court were to find defendant has shown the first step of the

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discretionary function exception is met, defendant does not satisfy the second prong. Although

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defendant attempts to show multiple policy considerations were at issue, see, e.g., Mem. at 19–25,

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the Ninth Circuit repeatedly has held “‘maintenance work is not the kind of regulatory activity’ to

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which the Supreme Court envisioned the discretionary function exception applying.” Bolt v.

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United States, 509 F.3d 1028, 1034 (9th Cir. 2007) (quoting ARA Leisure Servs. v. United States,

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831 F.2d 193, 195 (9th Cir. 1987)) (clearing snow and ice from parking lot “a matter of routine

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maintenance beyond the scope of the discretionary function exception”); see, e.g., O’Toole, 295

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F.3d at 1036 (“[A]n agency’s decision to forego, for fiscal reasons, the routine maintenance of its

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property—maintenance that would be expected of any other landowner—is not the kind of policy

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decision that the discretionary function exception protects.”). Defendant’s failure to maintain the

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parking lot and the wooden stairs and trail area leading to the picnic table is a routine

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maintenance decision – or lack of decision -- expected of any other private landowner. To permit

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the discretionary function exception to apply in circumstances such as this would “all but swallow
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the Federal Tort Claims Act.” See ARA Leisure Servs, 831 F.2d at 196 (finding government’s

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failure to maintain road fell in category of “ordinary garden-variety negligence” (citation and

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marks omitted)); Niva v. U.S. Bureau of Land Mgmt., 245 F. App’x 621, 623 (9th Cir. 2007)

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(unpublished) (discretionary function exception inapplicable when Bureau of Land Management

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failed to maintain road and repair ditch). Accordingly, the discretionary function exception does

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not apply to defendant’s failure to maintain the site.

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2.

Failure to Warn

Second, regarding defendant’s failure to warn visitors about the uneven pathway, the court
finds the first step of the discretion function exception is met. Plaintiff argues the discretionary

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function exception does not apply because the Manual prescribes the course of action Forest

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Service employees must follow regarding safety hazards at recreation sites. Opp’n at 5–6. The

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court has reviewed the relevant portions of the Manual and finds they use broad discretionary

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language. The Manual includes language such as “[t]o the extent practicable,” “consider” and

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“reasonable measures.” See, e.g., §§ 2330.2, 2330.3, 2331.5, 2332.1. The Manual acknowledges

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the “inherent risks” present in National Forest System lands, and while the Manual directs

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employees to “[i]mmediately correct high-priority hazards,” it does not specify how to determine

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whether a particular hazard is “high priority.” Id. § 2332.1. Although the Manual includes some

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mandatory language, “[t]he existence of some mandatory language does not eliminate discretion

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when the broader goals sought to be achieved necessarily involve an element of discretion.”

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Miller v. United States, 163 F.3d 591, 595 (9th Cir. 1998) (collecting cases). A general duty to

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promote safety is not sufficient to create clear duties that eliminate discretion. See Kennewick Irr.

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Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989); see also Valdez v. United States, 56

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F.3d 1177, 1180 (9th Cir. 1995) (“While the said policy guidelines certainly outline general

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policy goals regarding visitor safety, the means by which NPS employees meet these goals

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necessarily involves an exercise of discretion.”). Accordingly, the first step of the discretionary

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function exception test is satisfied. See, e.g., Tam v. United States, 905 F. Supp. 2d 1221, 1230

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(W.D. Wash. 2012) (similarly finding §§2332 and 2332.1 and other management and policy

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documents did not “rise to the level of specific mandates directing a course of action”). At
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hearing, plaintiff conceded there is no statute or regulation specifically mandating specific

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warnings.

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Second, the court considers whether the challenged action involved a decision susceptible

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to social, economic or political policy analysis. “When established governmental policy, as

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expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to

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exercise discretion, it must be presumed that the agent’s acts are grounded in policy when

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exercising that discretion.” Gaubert, 499 U.S. at 324. “The focus of the inquiry is not on the

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agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the

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nature of the actions taken and on whether they are susceptible to policy analysis.” Id. at 325.

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However, the court remains cognizant that “[t]he danger that the discretionary function exception

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will swallow the FTCA is especially great where the government takes on the role of a private

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landowner.” O’Toole, 295 F.3d at 1037.

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Here, the nature of the Forest Service’s action taken or its inaction is the failure to warn

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visitors of a safety hazard. “In the usual case, the failure to warn involves only ‘safety

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considerations under an established policy, rather than the balancing of competing policy

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considerations.’” Lesoeur v. United States, 21 F.3d 965, 970 (9th Cir. 1994) (citation omitted).

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Thus, “a failure to warn falls within the discretionary function exception only if it implicates

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political or economic policy considerations[.]” Id. In cases like this where defendant “has

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allegedly failed to warn, the use of the discretionary function exception must be limited to those

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unusual situations where the government was required to engage in broad, policy-making

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activities or to consider unique social, economic, and political circumstances in the course of

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making judgments related to safety.” Faber v. United States, 56 F.3d 1122, 1125 (9th Cir. 1995).

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“As has been noted by numerous courts, reconciling conflicting case law in this area can be

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difficult.” O’Toole, 295 F.3d at 1035. This is due to the inherently policy-specific and fact-

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driven nature of the inquiry. Terbush, 516 F.3d at 1136. “Government actions can be classified

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along a spectrum, ranging from those ‘totally divorced from the sphere of policy analysis,’ such

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as driving a car, to those ‘fully grounded in regulatory policy,’ such as the regulation and

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oversight of a bank.” Whisnant, 400 F.3d at 1181 (quoting O’Toole, 295 F.3d at 1035). Thus, the
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question is whether the failure to warn in this case is more analogous to negligent driving or to

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decisions regarding the regulation of a bank.

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The court finds the failure to warn in this case does not fall within the discretionary

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function exception. This is not a case where plaintiff is challenging the way in which the Forest

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Service tried to mitigate a safety concern in light of other policy concerns. See, e.g., Blackburn v.

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United States, 100 F.3d 1426, 1434 (9th Cir. 1996) (National Park Service’s decision to place

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warning signs “balanced competing policy considerations in determining how to warn the public

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of the hazard”). Nor is this a case where unique policy considerations, such as relations with a

9

Federal Indian Tribe, are at stake. See, e.g., Lesoeur, 21 F.3d at 969 (National Park Service’s

10

“failure to warn that the Tribe’s rafting tours were not regulated clearly implicated important

11

political policy considerations” impacting relations between Tribe and the United States). Rather,

12

this case is closely analogous to Young v. United States, 769 F.3d 1047 (9th Cir. 2014).

13

The relevant facts in Young are as follows. The National Park Service installed a

14

transformer, which had generated heat and melted the snow above it to create a “large cavity”

15

beneath a thin snow ceiling. Id. at 1051. As the plaintiff approached the area, the snow ceiling

16

collapsed, and the plaintiff fell approximately twelve feet. Id. Whether the Park Service knew or

17

should have known about the hazard created by the transformer was a disputed jurisdictional fact.

18

Id. at 1052. The plaintiff and her family filed a complaint against the United States for injuries

19

the plaintiff suffered at the National Park. See generally id. The plaintiffs alleged the Park

20

Service knew or should have known about the hazard and was negligent in failing to warn of the

21

hazard it created. Id. at 1054. The district court, however, framed plaintiffs’ allegations more

22

broadly and concluded “the conduct at issue is the NPS’s maintenance of the Park, decisions to

23

identify and warn visitors from hazards, and the protection of visitors from hazards[.]” Id. Based

24

on these allegations, the district court found the discretionary function exception applied. Id.

25

On appeal, the Ninth Circuit found the district court mischaracterized plaintiffs’

26

allegations and found the discretionary function exception did not apply. See id. at 1054–58. The

27

Ninth Circuit determined the “decision not to warn of the latent dangers associated with the

28

transformer near the [visitor center] was a decision ‘totally divorced’ from the policies that the
13

1

government has identified as the basis for its decision.” Id. at 1057. The Ninth Circuit had “little

2

doubt that NPS staff members make discretionary decisions every day about managing snow,

3

prioritizing inspections, and responding to hazards.” Id. at 1058. However, relying on the

4

plaintiffs’ allegations, the court found those decisions were not at issue. Id. The court rejected

5

the government’s argument that its decision not to put a warning sign next to the transformer

6

implicated “considerations of access, resource preservation, and conservation.” Id. (citing other

7

failure to warn cases in which Circuit has found discretionary function exception does apply).

8

The Ninth Circuit found those policy considerations were irrelevant because the case was not

9

about “providing access to visitors in the face of known dangers,” nor did it implicate matters of

10

historic or natural resource preservation as the hazard was not located in the wild, was created by

11

the agency, and the lack of warning had nothing to do with the protection of wildlife and the

12

environment. See id. In sum, the Ninth Circuit concluded in Young the “decision not to warn can

13

only be considered ‘totally divorced’ from the policies on which it purports to rely[.]” Id.

14

Likewise, plaintiff’s complaint alleges defendant created the dangerous conditions at

15

Silverlake Boat Launch, knew or should have known about the dangerous conditions, and failed

16

to warn visitors of the danger. Compl. ¶¶ 13, 16, 22. While a Forest Service staff member claims

17

not to know the origins of the wooden stairs, a picnic table was located in an area in which

18

visitors would have had to either use the stairs or use the uneven pathway next to the stairs, which

19

is what plaintiff did. As in Young, defendant raises various policy considerations Forest Service

20

staff needed to consider. For example, defendant argues Forest Service staff consider whether a

21

warning sign might detract from a site’s “scenic integrity.” Mem. at 19–25. Moreover, defendant

22

contends decisions regarding where staff should look for potential hazards, how often staff should

23

look for such hazards, how to prioritize different recreational sites, how to prioritize different

24

types of safety concerns and how to mitigate the potential hazards all implicate policy

25

considerations including resource allocations, environmental impacts and staffing needs. See

26

Reply at 9; Mem. at 19–25.

27
28

As in Young, the court does not doubt Forest Service staff make discretionary decisions
regarding how to prioritize different recreation sites, inspections, safety concerns and how to
14

1

respond to safety concerns. Cf. Childers v. United States, 40 F.3d 973, 976 (9th Cir. 1994), as

2

amended (Jan. 17, 1995) (“Park rangers use[] their discretion to balance, within the constraints of

3

the resources available to them, a statutory mandate to provide access with the goal of public

4

safety.”). However, plaintiff does not broadly challenge the way in which the Forest Service

5

maintained the Inyo National Forest, its decisions regarding how to identify and warn visitors

6

from hazards, and its decisions to protect visitors. Rather, the issue here is narrower. The

7

question is whether Forest Service employees were negligent in failing to protect plaintiff from a

8

hazard not naturally occurring in the wild––“a poorly maintained walkway which contained loose

9

rocks and debris, uneven surfaces, and sharp ledges”––which the Forest Service knew or should

10

have known about. Compl. ¶ 12. Placing a warning sign regarding the use of the stairs or

11

pathway leading to the picnic table would not have implicated wilderness considerations and it

12

would not have detracted from the “scenic integrity” of the location. The dangerous condition

13

was located next to an asphalt parking lot displaying signs of deferred maintenance and a picnic

14

area at a popular lake. Moreover, budgetary constraints alone are insufficient to escape liability

15

under the discretionary function exception. See O’Toole, 295 F.3d at 1037.

16

Although defendant need only show the nature of its actions is “susceptible to policy

17

analysis,” Gaubert, 499 U.S. at 325, “[it]t is not sufficient for the government merely to waive

18

[sic] the flag of policy as a cover for anything and everything it does that is discretionary in

19

nature.” Terbush, 516 F.3d at 1134. “Every slip and fall, every failure to warn, every inspection

20

and maintenance decision can be couched in terms of policy choices based on allocation of

21

limited resources.” O’Toole, 295 F.3d at 1037. Here, the court finds “there is no apparent

22

connection between the agency’s decision and the policies it identifies as the basis for that

23

decision,” and therefore finds the discretionary function exception does not apply. See Young,

24

769 F.3d at 1059. This is a “usual case” in which the failure to warn involves only safety

25

considerations. See, e.g., Faber, 56 F.3d at 1125 (“It would be wrong to apply the discretionary

26

function exception in a case where a low-level government employee made a judgment not to

27

post a warning sign, or to erect a guardrail, or to make a safer path.”).

15

1

The court finds defendant has not shown the discretionary function exception applies and

2

declines to grant its motion to dismiss or for summary judgment on this ground.

3

IV.

IMMUNITY

4

A.

California Recreational Use Statute

5

As noted, the FTCA provides a limited waiver of sovereign immunity. However, the

6

United States has waived its sovereign immunity only to “the same extent as a private individual

7

under like circumstances[.]” 28 U.S.C. § 2674. Thus, the United States may be liable for

8

damages “if a private person, would be liable to the claimant in accordance with the law of the

9

place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Because the injury occurred

10

in California, the court applies California law. See Conrad v. United States, 447 F.3d 760, 767

11

(9th Cir. 2006) (under FTCA, courts apply “law of the state in which the alleged tort occurred”).

12

In general, “[a] landowner owes a duty to exercise reasonable care to maintain his or her

13

property in such a manner as to avoid exposing others to an unreasonable risk of injury.” Barnes

14

v. Black, 71 Cal. App. 4th 1473, 1478 (1999). “The failure to fulfill the duty is negligence.” Id.

15

However, landowners are protected “from liability for negligence to those who enter or use their

16

land for recreational purposes.” Mattice By & Through Mattice v. U.S., Dep’t of Interior, 969

17

F.2d 818, 821 (9th Cir. 1992). The relevant provision of the recreational use statute provides:

18
19
20
21
22
23

An owner of any estate or any other interest in real property, whether
possessory or nonpossessory, 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 those premises to persons entering for a recreational
purpose, except as provided in this section.

24

Cal. Civ. Code § 846(a). “There are two elements as a precondition to immunity:

25

(1) the defendant must be the owner of an estate or any other interest in real property, whether

26

possessory or nonpossessory; and (2) the plaintiff’s injury must result from the entry or use of the

27

premises for any recreational purpose.” Gordon v. Havasu Palms, Inc., 93 Cal. App. 4th 244, 255

28

(2001) (citations, marks and alterations omitted).

16

1

Although immunity under section 846 is broad, it is “not absolute.” Hoffmann v. Young,

2

13 Cal. 5th 1257, 1268 (2022). There are three exceptions to recreational use immunity. See Cal.

3

Civ. Code § 846(d). The exception relevant to this case is when there is “[w]illful or malicious

4

failure to guard or warn against a dangerous condition, use, structure or activity.” Id. § 846(d)(1).

5

“A plaintiff seeking to rely on an exception to a general statutory rule bears the burden of

6

establishing the exception applies.” Hoffmann, 13 Cal. 5th at 1270.

7

B.

8

As a preliminary matter, plaintiff’s complaint alleges defendant’s actions were negligent.

9

Discussion

See generally Compl. As stated above, plaintiff brings three claims: premise liability, negligence,

10

and negligent undertaking. Id. ¶¶ 15–29. Nowhere in the complaint does plaintiff use the word

11

“willful” or “malicious,” or otherwise note any exception to the California recreational use

12

statute. See generally id. Defendant argues plaintiff cannot now attempt to prove an exception to

13

section 846 applies because plaintiff failed to allege an exception in his complaint. See Mem. at

14

26–27. Plaintiff does not address this argument, but rather requests the court grant leave to

15

amend to cure “any outstanding defects” if “the court is inclined to grant any portion of

16

Defendant’s motion.” Opp’n at 14. During hearing, defendant argued for the first time that

17

plaintiff’s failure to allege the relevant exception to the recreational use statute is fatal because

18

under the Supreme Court’s decision in Brownback, supra, plaintiff must plausibly allege the six

19

elements of an FTCA claim are met, one of which includes “the United States, if a private person,

20

would be liable to the claimant in accordance with the law of the place where the act or omission

21

occurred.” 592 U.S. at 218 (quoting 28 U.S.C. § 1346). In response, plaintiff argued he is not

22

required to plead in rebuttal to a potential affirmative defense.

23

Having now considered the question, the court agrees with plaintiff. Courts in this circuit

24

and in California have found immunity under the California recreational use statute is an

25

affirmative defense. See, e.g., Prince v. Pac. Gas & Elec. Co., 45 Cal. 4th 1151, 1168 (2009);

26

Hoffmann, 13 Cal. 5th at 1264; Bollinger v. United States, No. 16-820, 2017 WL 1336964, at *3

27

(S.D. Cal. Jan. 13, 2017); Mangiaracina v. BNSF Ry. Co., No. 16-05270, 2019 WL 1975461, at

28

*6 (N.D. Cal. Mar. 7, 2019); cf. Neal v. Bently Nev. Corp., 5 F.3d 538 (9th Cir. 1993) (table)
17

1

(recognizing immunity under Nevada’s Recreational Use Statute as affirmative defense).

2

Plaintiff is not required to anticipate an affirmative defense in his complaint and plead

3

prospectively in response. See Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 435 n.9 (2017) (“In

4

civil litigation, a release is an affirmative defense to a plaintiff's claim for relief, not something

5

the plaintiff must anticipate and negate in her pleading.”); Gomez v. Toledo, 446 U.S. 635, 640

6

(1980) (finding similarly); see also Nusbaum v. Cent. Valley Concrete, Inc., No. 08-0863, 2022

7

WL 289334, at *12 (Cal. Ct. App. Feb. 1, 2022) (unpublished) 5 (rejecting argument that plaintiff

8

must assert a claim for willful misconduct “to raise the applicability of the willful misconduct

9

exception to the section 846 immunity”). Because defendant asserts section 846 immunity as an

10

affirmative defense, see First Am. Answer, ECF No. 39, it is defendant who ultimately bears the

11

burden of showing it can meet the elements of that defense, see Mangiaracina, 2019 WL

12

1975461, at *6. Accordingly, plaintiff did not need to allege an exception to California’s

13

recreational use statute in his complaint. The court thus considers whether the exception to

14

California’s recreation use statute applies on the merits.

15

The parties agree the preconditions of section 846 are met, i.e., that 1) defendant is the

16

owner of the real property at issue and 2) plaintiff entered or used the premise for a recreational

17

purpose. See Mem. at 26; Opp’n at 10. The parties, however, dispute whether the willfulness

18

exception to the recreational use statute applies such that defendant can prevail on a motion for

19

summary judgment. “The meaning assigned to wilful [sic] misconduct by the California courts is

20

any intentional act of an unreasonable character undertaken in disregard of a known risk or a risk

21

so obvious that the actor must be taken to have been aware of it, and so great as to make resulting

22

harm highly probable.” Spires v. United States, 805 F.2d 832, 834 (9th Cir. 1986) (citation

23

omitted). To determine whether a landowner’s actions are willful and malicious, the court

24

considers the following “essential elements”: “(1) actual or constructive knowledge of the peril to

25

be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a
5

Although the California Rules of Court would prohibit the citation of this unpublished
decision in a state court, those rules do not apply in federal courts, which may review and
consider unpublished appellate decisions for their persuasive (but not precedential) value. See
Nunez by Nunez v. City of San Diego, 114 F.3d 935, 943 n.4 (9th Cir. 1997).
18

1

possible, result of the danger, and (3) conscious failure to act to avoid the peril.” Termini v.

2

United States, 963 F.2d 1264, 1267 (9th Cir. 1992) (citations omitted). “[W]illful misconduct

3

does not invariably entail a subjective intent to injure.” Manuel v. Pac. Gas & Elec. Co., 173 Cal.

4

App. 4th 927, 940 (2009). Rather, “[i]t is sufficient that a reasonable person under the same or

5

similar circumstances would be aware of the highly dangerous character of his or her conduct.”

6

Id. (citations omitted).

7

The court finds there is a dispute of fact regarding whether the Forest Service had actual

8

or constructive knowledge of the peril here. “Constructive knowledge is measured by an

9

objective standard: ‘whether a reasonable man under the same or similar circumstances as those

10

faced by the actor would be aware of the dangerous character of his conduct.’” Rost v. United

11

States, 803 F.2d 448, 451 (9th Cir. 1986) (quoting Chappell v. Palmer, 236 Cal.App.2d 34, 37

12

(1965)). Although Forest Service staff claims not to know where the wooden stairs came from,

13

visitors would have had to either use the stairs or use the uneven path next to the stairs to get to a

14

picnic table and the lake located nearby. And in 2016, prior to the incident, the Forest Service

15

was aware that Silver Lake Boat Facility was in “poor condition” with “many cracks” in the

16

existing parking area, see Project Grant Agreement at 92, and failure to repair Silver Lake Boat

17

Launching Facility would “result in operation under a state of disrepair [and] possible closure due

18

to unsafe infrastructure,” id. at 105. The Forest Service Manual also directs staff to “[i]nspect

19

each public recreational site annually,” FSM ¶ 2332.1, and “conduct periodic risk assessments as

20

necessary to identify hazards,” id. FSM ¶ 2332.11. Rec Techs are directed to prioritize

21

“imminent and significant hazards” in the areas intensively used by visitors, such as picnic areas.

22

Mot. Reif Decl. ¶¶ 29–30. Given these factors, there is a genuine dispute of fact whether a

23

reasonable person or entity in the Forest Service’s circumstances would know of the unsafe

24

conditions in the parking lot and area where plaintiff was injured. See Rost, 803 F.2d at 451 (“It

25

is enough that [defendant] knows or has reason to know of the circumstances which would bring

26

home to the realization of the ordinary, reasonable man the highly dangerous character of his

27

conduct.”).

19

1

The court also finds there is a dispute of fact regarding whether defendant had actual or

2

constructive knowledge that injury was probable as opposed to possible. Whether a defendant

3

“had actual or constructive knowledge that injury was a probable, as opposed to a possible, result

4

of the danger is to be determined ‘by all of the circumstances.’” Manuel, 173 Cal. App. 4th at

5

946 (quoting Lostritto v. S. Pac. Transp. Co., 73 Cal. App. 3d 737, 745 (Ct. App. 1977)). These

6

circumstances include whether there were prior accidents, whether the defendant had knowledge

7

of recreational activity at the location, the location of the property, ease of access to the danger,

8

and maintenance in a way that misleads the public. See id. (collecting cases).

9

Defendant has shown there is no evidence of prior accidents at Silver Lake Boat Launch,

10

see, e.g., Mot. Casey Decl. ¶¶ 4–5; Mot. Reif Decl. ¶¶ 32–35; Mot. Mason Decl. ¶¶ 3–6; Mot.

11

Gamino Decl. ¶¶ 24–28, there is no evidence of complaints regarding the stairs or the area where

12

plaintiff was injured, Gamino Decl. ¶ 24; Gamino Dep. 90:20–91:16, and plaintiff testified he

13

knew the stairs had not been maintained and might be a hazard, Schell Dep. 109:20–21.

14

Defendant also argues that even if the Forest Service “had been aware of the specific conditions

15

leading to Plaintiff’s fall, nothing about them was so ‘highly dangerous’ as to render his freak

16

accident ‘highly probable.’” Mem. at 29.

17

Plaintiff does not directly counter defendant’s evidence or arguments. However, plaintiff

18

argues “[i]t is undisputed Defendant knew members of the public went to the Boat Launch

19

Facility for recreational purposes like fishing, kayaking, and hiking.” Opp’n at 12 (citing Project

20

Grant Agreement). He argues “the danger was itself a walkway open to the public with poorly

21

maintained wooden steps and a caved-in asphalt landing requiring users to walk up the dirt on the

22

side of the steps and onto an exposed geo-textile fabric” and speculates “[d]efendant likely built

23

wooden steps to facilitate access to the lake because it knew the path was frequently used.” Id.

24

The court considers the following circumstances in finding there is a dispute of material

25

fact regarding whether defendant had actual or constructive knowledge that injury was probable

26

as opposed to possible. First, while the government cites to the lack of prior accidents and formal

27

complaints, the lack of prior accidents is not dispositive. See Robertson v. United States, No. 13-

28

2425, 2015 WL 12532461, at *11 (S.D. Cal. June 3, 2015) (finding “government’s argument that
20

1

it was not aware of any prior incidents concerning the wire fence is not compelling”). California

2

courts have frequently rejected finding a lack of constructive knowledge based solely on the

3

absence of prior accidents, because “the matter of probability is not to be assessed solely by the

4

number of prior accidents, which adventitiously may have been few, but by all the

5

circumstances.” Termini, 963 F.2d at 1269 (citations omitted). Second, plaintiff has shown

6

visitors frequented the area and the stairs were not in an isolated area, but rather, near a parking

7

lot and a picnic table, which invited visitors to come to the hazardous area. Cf. Manuel, 173 Cal.

8

App. 4th at 946 (finding nothing to show injury “probable” because “there was no evidence of

9

prior incidents of any kind. No accidents. No prior climbers. And no evidence that anyone

10

frequented the area. Moreover, . . . the tower was apparently in an isolated area.”). In fact, the

11

Forest Service knew the lake is popular and that the parking area had many cracks and safety

12

issues. See Project Grant Agreement at 92, 105. Third, the Forest Service’s failure to maintain

13

the stairs, pathway and parking lot in compliance with the Manual is also a factor in determining

14

whether defendant had constructive knowledge that injury was probable. See Robertson, 2015

15

WL 12532461, at *12 (noting “Ninth Circuit has held that the government’s failure to observe its

16

own safety standards is an important factor in determining that it possessed constructive

17

knowledge that injury is probable”; collecting cases). As noted, the Manual directs the Forest

18

Service to “[m]aintain all improvements to the standard to which originally constructed or

19

subsequently improved or modified.” FSM § 2332.5. Finally, while plaintiff may have been

20

aware of the unsafe condition of the stairs, plaintiff provides evidence showing the danger may

21

not have been so obvious. See Solomon Dep. 104:3–15, 104:23–105:5, Frueh Decl. Ex. 13, ECF

22

No. 73-21 (plaintiff’s expert testifying slipperiness of the black tarp, which plaintiff tripped on,

23

was latent risk and not open and obvious). Moreover, there is no requirement that a peril be

24

“hidden” for conduct to be willful or malicious. See, e.g., Singh v. United States, 718 F. Supp. 2d

25

1139, 1149 (N.D. Cal. 2010); Lashley v. United States, No. 05-03288, 2006 WL 2788243, at *8

26

(N.D. Cal. Sept. 26, 2006) (“It cannot be that a landowner is immune from liability when he or

27

she has made a conscious decision not to warn of a danger, even if that danger is not completely

28

hidden.”); but see Coryell v. United States, 855 F. Supp. 1120, 1123 (C.D. Cal. 1994) (no willful
21

1

conduct because lack of prior accident and peril was open and obvious). Having considered all

2

the circumstances, plaintiff has shown a trier of fact could find defendant knew an injury was

3

probable as opposed to only possible.

4

Lastly, viewing the evidence in the light most favorable to plaintiff, there is a dispute of

5

fact regarding whether the Forest Service consciously failed to act to avoid the peril. “Although

6

there is no precise test defining what constitutes a ‘conscious failure to act,’ cases indicate that a

7

defendant will avoid liability under section 846 where he takes some measures to avoid harm,

8

even where more effective measures could or should have been taken.” Buchwald v. Metro.

9

Transp. Comm’n, No. 04-01833, 2005 WL 2000931, at *8 (N.D. Cal. Aug. 16, 2005) (emphasis

10

in original) (collecting cases). Here, plaintiff has shown defendant took no action. Defendant did

11

not close the site or place any kind of warning or take any types of action to avoid the risk of

12

harm. The lack of any sort of warning or effort to inform visitors of the risks at the site raises a

13

dispute of fact regarding whether defendant consciously failed to act. See, e.g., Esteban v. United

14

States, No. 13-2025, 2015 WL 5093786, at *7 (S.D. Cal. Aug. 27, 2015) (“The fact that the

15

condition of the broken electrical junction box was left to exist in a very populated area, without

16

any warning or protections, creates a genuine issue of material fact as to whether the government

17

consciously failed to act to avoid the peril.”); Monzon v. S. California Reg’l R.R. Auth., No.

18

B231921, 2012 WL 837097, at *8 (Cal. Ct. App. Mar. 14, 2012) (unpublished) 6 (noting “no

19

evidence [defendant] made any other effort to inform hikers, or the public in general” about the

20

danger); cf. Alvarez v. United States, No. 21-09377, 2023 WL 6192710, at *8 (C.D. Cal. Aug. 9,

21

2023) (no conscious failure to act where government provided some warning).

22

Further, defendant knew the site was in disrepair. Under the Manual, it was required to

23

prioritize public safety, inspect recreational sites annually, conduct periodic risk assessments,

24

identify hazards, immediately correct high-priority hazards, maintain all improvements to the

25

standard to which the improvement was originally constructed or subsequently improved or

26

modified, and schedule light maintenance. See FSM §§ 2330.2, 2330.3, 2331.5, 2332, 2332.1,

27

2332.11, 2332.5. However, there is no evidence or record defendant annually inspected Silver
6

See supra note 6.
22

1

Lake Boat Launch or took steps to identify hazards. Plaintiff has shown defendant did not

2

maintain the improvements in the site. And while defendant was working with the State of

3

California to update and rehabilitate the site, the project completion date was delayed by four

4

years and defendant did nothing in the interim to protect against injury. See Project Grant

5

Agreement at 34 (“The Government shall complete the Project no later than March 1, 2017);

6

Reply Gamino Decl. Ex. 16 (showing deadline extended to February 1, 2023). Here, defendant’s

7

apparent disregard of the Manual raises a dispute of fact whether defendant consciously failed to

8

act. See, e.g., Niva, 245 F. App’x at 622 (noting Bureau of Land Management’s disregard of

9

“erosion control recommendations and its duty to maintain [the Clear Creek Road]”); Novikoff v.

10

United States, No. 11-03023, 2016 WL 636880, at *5 (E.D. Cal. Feb. 18, 2016) (finding

11

conscious failure to act where defendant did not comply with Reclamation Manual which

12

“required inspections and reasonably possible corrective action to safeguard the public from

13

known hazards”). Having considered all the evidence in the light most favorable to plaintiff as

14

required, the court finds there is a triable issue of fact regarding whether defendant consciously

15

failed to act.

16

Because plaintiff has shown there is a triable issue of fact whether the willfulness

17

exception to the California recreational use statute applies, the court denies the motion for

18

summary judgment on this ground. See Simpson v. United States, 652 F.2d 831, 834 (9th Cir.

19

1981), abrogated on other grounds by Ravell v. United States, 22 F.3d 960 (9th Cir. 1994) (citing

20

Gard v. United States, 594 F.2d 1230, 1234 n.2 (9th Cir. 1979) (“When willfulness is an issue,

21

summary judgment should be granted with caution[.]”).

22

V.

CONCLUSION

23

For the reasons above, the defendant’s motion is denied. In light of the expiration of the

24

dispositive motion deadline, a final pretrial conference for a trial for the liability phase is set

25

for October 4, at 10:00 a.m. in Courtroom 3 (KJM) before Chief District Judge Kimberly J.

26

Mueller. See E.D. Cal. L.R. 282. The parties shall meet and confer and file a joint pretrial

27

statement no later than three weeks prior to the final pretrial conference.

23

1

The provisions of Local Rule 281 shall apply with respect to the matters to be included in

2

the joint pretrial statement. At least one of the attorneys who will conduct the trial for each of the

3

parties shall attend the final pretrial conference. All motions in limine must be filed in

4

conjunction with the joint pretrial statement. In most cases, motions in limine are addressed and

5

resolved on the morning of the first day of trial. The parties may alert the court at the final

6

pretrial conference and in their final joint pretrial statement that a particular motion or motions

7

should be resolved earlier. At the final pretrial conference, the court will set a briefing and

8

hearing schedule on the motions in limine as necessary. The parties are reminded that a motion in

9

limine is a pretrial procedural device designed to address the admissibility of evidence. The court

10

looks with disfavor upon dispositional motions presented at the final pretrial conference or at trial

11

in the guise of motions in limine.

12
13

In the meantime, if the parties jointly agree to referral to a court-convened settlement
conference with another judge of the court, they may file such request in writing.

14

This order resolves ECF No. 73.

15

IT IS SO ORDERED.

16

DATED: August 29, 2024.

24