Winters v. United States of America

Filing 21

ORDER signed by Judge Kimberly J. Mueller on 6/11/14 GRANTING 16 Motion for Summary Judgment. CASE CLOSED. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN WINTERS,

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No. 2:13-CV-00834-KJM-KJN
Plaintiff,

v.

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ORDER
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UNITED STATES OF AMERICA,

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Defendant.

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The government moves for summary judgment on the single claim brought by

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plaintiff John Winters. Def.’s Mot. Summ. J. (“Mot.”) at 1, ECF No. 16-1. The court heard

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argument on June 6, 2014, with Hank G. Greenblatt appearing for plaintiff and Gregory T.

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Broderick appearing for the government. As explained below, the court GRANTS the motion.

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I.

BACKGROUND
Plaintiff was injured when recreationally riding his motorcycle on June 10, 2012

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in Eldorado National Forest. Stipulated Fact 1–2, ECF No. 17. Plaintiff alleges the injury

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occurred as a result of hitting a large pothole on Silver Fork Road, the impact of which caused

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him to lose control of the vehicle, fall to the ground and injure his shoulder. Compl. ¶ 7, ECF

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No. 2.

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The accident occurred on government property. See Stipulated Fact 3.
Although the property is generally open to the public, plaintiff was not expressly invited onto
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the land. Id. Plaintiff has no evidence that the government knew of the particular pothole at

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issue before the date of the accident or that it had caused any other accidents, id. 5–6, and he

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does not allege that the government engaged in willful or malicious conduct, see id. 7; Compl.

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¶¶ 1–8.

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Bringing a single claim for negligence under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671–2680, plaintiff filed suit in this court on April 29, 2013.
II.

STANDARD
Summary judgment is proper where “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

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“Material” facts are those that “might affect the outcome of the suit under the governing law,”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and an “issue of fact [is] . . .

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‘genuine’” where established by the presence or absence of “specific facts,” not mere

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“metaphysical doubt,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

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(1986). A moving party is entitled to judgment as a matter of law “[w]here the record taken as

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a whole could not lead a rational trier of fact to find for the non-moving party . . . .” Id. at 587

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(citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)); accord FED. R.

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CIV. P. 50(a) (“If a party has been fully heard on an issue . . . and the court finds that a

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reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that

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issue, the court may . . . grant a motion for judgment as a matter of law . . . .”).

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The moving party bears the initial burden of showing “that there is an absence of

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evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325

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(1986). If the moving party successfully does so, the burden shifts to the nonmoving party,

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who “must establish that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus.

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Co., 475 U.S. at 585. In carrying their burdens, both parties must “cit[e] to particular parts of

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materials in the record . . . or show[] that the materials cited do not establish the absence or

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presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

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support the fact.” FED. R. CIV. P. 56(c)(1). On summary judgment, the court views all

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evidence and draws all inferences therefrom in the light most favorable to the nonmoving party.
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Matsushita Elec. Indus. Co., 475 U.S. at 587–88; Whitman v. Mineta, 541 F.3d 929, 931 (9th

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Cir. 2008).

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III.

ANALYSIS

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The government argues summary judgment is proper because plaintiff’s claim is

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“barred by California’s Recreational Use Immunity Statute[, California Civil Code section

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846].” Mot. at 1, 3–5. Opposing, plaintiff insists the statute “does not immunize public

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entities” and is without application here. Pl.’s Opp’n to Mot. (“Opp’n”) at 2–3, ECF No. 18.

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Further, plaintiff continues, the immunity statute is inapplicable because the accident occurred

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on an “ordinary highway,” not in “a recreational area.” Id. at 3–4. In reply, the government

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contends that the FTCA permits government liability only to the same extent as that of a private

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individual and that plaintiff draws a meritless distinction between a highway and a recreational

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area. Def.’s Reply to Opp’n at 1–3, ECF No. 19.

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“A party may bring an action against the United States only to the extent that the

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government has waived its sovereign immunity.” Mattice v. U.S. Dep’t of Interior, 969 F.2d

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818, 820 (9th Cir. 1992). Under the FTCA, the government waives immunity only to permit

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“liab[ility] . . . [for] tort claims[] in the same manner and to the same extent as a private

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individual under like circumstances . . . .” 28 U.S.C. § 2674; accord Rayonnier, Inc. v. United

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States, 352 U.S. 315, 319 (1957) (“[T]he test established by the [FTCA] for determining the

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United States’ liability is whether a private person would be responsible for similar negligence

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under the laws of the State where the acts occurred.”). Thus, although the court “look[s] to

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state substantive law” to determine liability, Bressi v. Ford, 575 F.3d 891, 899 n.9 (9th Cir.

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2009); see also Rayonnier, 352 U.S. at 319, waiver of immunity is first determined by federal

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law, see Mattice, 969 F.2d at 820 (citing 28 U.S.C. §§ 1346(b), 2674). As in Mattice, the

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“inquiry here, therefore, is limited to whether a private person would be liable for [plaintiff]’s

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injuries under California law.” Id. (citing McMurray v. United States, 918 F.2d 834, 836 (9th

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Cir. 1990)).

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In California, a private “owner of any estate or . . . interest in real property . . .

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owes no duty of care to keep the premises safe for entry or use by others for any recreational
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purpose or . . . warn[] of hazardous conditions, uses of, structures, or activities on such

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premises to persons entering for such purpose . . . .” CAL. CIV. CODE § 846; see also Delta

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Farms Reclamation Dist. v. Superior Court, 33 Cal. 3d 699, 710 (1983) (holding statute does

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not immunize “public entities”). However, the statute exempts from immunity “willful or

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malicious failure to guard or warn against a dangerous condition, use, structure or activity,” and

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“injury suffered in any case where permission to enter for the above purpose was granted for a

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consideration other than the consideration, if any, paid to said landowner by the state, or where

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consideration has been received from others for the same purpose;” it does not limit liability

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otherwise existing to “any persons who are expressly invited rather than merely permitted to

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come upon the premises by the landowner.” CAL. CIV. CODE § 846.
Here, the parties have stipulated both that plaintiff “was engaged in the

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recreational activity of riding his motorcycle at the time he crashed on Silver Fork Road,”

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Stipulated Fact 2, and that there is no evidence any of the exceptions apply, see Stipulated Facts

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3–7. Plaintiff does not contest these points. The court must thus conclude that a private party

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would be immune from liability for plaintiff’s injuries.

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Plaintiff nonetheless argues that though immunity might be appropriate for a

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private party, it is improper here because (1) the government is a public entity; and (2) the

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accident occurred on an ordinary highway. Opp’n at 2–3.

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The court rejects both arguments. First, as noted above, the court must

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determine the extent of the United States’ waiver of immunity before considering the extent of

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its liability under state law. See Mattice, 969 F.2d at 820. Under the FTCA, the government

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waives “only to the extent that a private person would be liable under like circumstances.” Id.

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As such, “the United States must be treated as a private person for purposes of [the FTCA]

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analysis, even if a different rule would apply to California governmental entities.” Ravell v.

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United States, 22 F.3d 960, 961 (9th Cir. 1994).

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Plaintiff’s reliance on Delta Farms Reclamation District, 33 Cal. 3d at 699, is

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misplaced. There, the California Supreme Court analyzed only the extent of a public entity’s

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liability under state law. However, by operation of the FTCA, the only question before this
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court is the extent of a private person’s liability. See Ravell, 22 F.3d at 961; Mattice, 969 F.2d

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at 820.

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The court also rejects plaintiff’s second argument. Relying on Seyler v. United

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States, 832 F.2d 120, 122 (9th Cir. 1987), plaintiff argues “‘[i]t would be absurd to apply the

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statute to an ordinary highway’” because “‘[a]n ordinary highway is not a recreational area, and

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the intent of the statute would be ill served by applying it to one.’” Opp’n at 3 (quoting

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Mattice, 969 F.2d at 822).1 On that reasoning, the Seyler court rejected application of an Idaho

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recreational immunity statute — more “far-reaching” than the instant California statute,

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Mattice, 969 F.2d at 822 — to an ordinary highway. Seyler, 832 F.2d at 121–22.

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Seyler’s consideration of a different statute from a different state distinguishes it

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from this case. Id. In California, “[t]here is no question that the [immunity] statute applies to

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public federal roads on recreational land.” Mattice, 969 F.2d at 821 (citing Termini v. United

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States, 963 F.2d 1264, 1265–66 (9th Cir. 1992); Hubbard v. Brown, 50 Cal. 3d 189, 192

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(1990)). “Application of the statute in this situation is not absurd because it will encourage the

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government to keep park land open for recreational use.” Id. at 822 (citing Jones v. United

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States, 693 F.2d 1299, 1302 (9th Cir. 1982)).

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Here, Silver Fork Road runs through the Eldorado National Forest. Thus, it is a

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public federal road on recreational land, and the California immunity statute applies to

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“encourage the government to keep park land open for recreational use.” Id. at 822. That the

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road is paved is of no import. Id. at 821.

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Having established both the absence of a genuine dispute as to any material fact

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and its entitlement to judgment as a matter of law, the government has carried its burden.

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Summary judgment is, therefore, proper.

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Plaintiff claims to quote this language from Seyler. However, the language actually
appears in Mattice, in a passage paraphrasing Seyler.
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IV.

CONCLUSION

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As set forth above, the court GRANTS the motion. The matter is closed.

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IT IS SO ORDERED.

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DATED: June 11, 2014.

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UNITED STATES DISTRICT JUDGE

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