Rogers By and Through Rogers v. U.S. Dept. of Transp.

Decision Date17 September 1992
Docket NumberNo. 90-15625,90-15625
Citation977 F.2d 591
PartiesNOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Thomas Allen ROGERS, By and Through his Guardian Ad Litem, Minnie ROGERS, Plaintiff-Appellant, v. UNITED STATES of America, Department of Transportation, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Before ALARCON, BOOCHEVER and CYNTHIA HOLCOMB HALL, Circuit Judges.

MEMORANDUM **

Thomas Allen Rogers ("Rogers"), by and through his guardian ad litem Minnie Rogers, appeals from the judgment in favor of the United States on Rogers' action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, alleging negligent operation of a truck belonging to the United States Department of the Interior ("Interior Department"). Rogers suffered injuries when the truck, driven by Interior Department employee Pamela Sue Weakley ("Weakley"), collided with his bicycle on a road in Trinity National Forest. Rogers contends that the judgment in favor of the United States should be reversed because the district court erred in concluding that Weakley was not negligent. He makes the following arguments in support of this contention:

One. Weakley violated the 15 mile per hour prima facie speed limit allegedly applicable to the accident site under California Vehicle Code § 22352(a)(2). In conjunction with this assertion, Rogers appears to argue that Weakley's violation of the prima facie speed limit established negligence as a matter of law.

Two. Weakley violated the basic speed limit set forth in California Vehicle Code § 22350, because she knew that the visibility of the accident site was limited.

We affirm because, under California law, a violation of a prima facie speed limit does not establish negligence as a matter of law, and because the district court did not commit clear error in finding that Weakley was not negligent.

I.

On July 11, 1984, at approximately 11:30 a.m., Rogers was riding his bicycle north on Trinity Dam Boulevard, a two-lane road that runs north and south in Trinity County, California. From Trinity Dam Boulevard, Rogers turned left onto a short, horseshoe-shaped road that provides access to Tunnel Rock Campground, a camping and picnic area. The Tunnel Rock Campground access road is approximately 300 feet in length. The southern end of the access road begins with an upward grade, levels off and then ends in a downward grade that returns at the northern end to its junction with Trinity Dam Boulevard. Rogers entered the access road with the intent of gaining speed and thus facilitating his trip north on Trinity Dam Boulevard, which requires a slight uphill climb.

After picking up speed on the access road's downhill grade, Rogers reentered Trinity Dam Boulevard without stopping. The access road has a solid line at its junction with Trinity Dam Boulevard. At the same time that Rogers crossed the southbound lane of Trinity Dam Boulevard to continue his trip in the northbound lane, Weakley was driving a government-owned truck in the southbound lane of Trinity Dam Boulevard. She saw Rogers enter Trinity Dam Boulevard from the access road. She applied her brakes and swerved to the left to avoid hitting Rogers, but was unable to do so. The truck hit Rogers causing him to suffer severe injuries.

On May 21, 1986, Rogers brought an action for negligence in the Superior Court of the State of California, County of Trinity, naming Weakley and the California Department of Transportation ("Cal Trans") as defendants. Weakley subsequently filed a petition for removal of the action in the United States District Court pursuant to 28 U.S.C. § 2679(d). Section 2679(d) provides that an action under the FTCA is the exclusive remedy for injury or loss resulting from the operation of a motor vehicle by a federal government employee acting within the scope of his or her employment. Upon removal, the United States was substituted as defendant in place of Weakley. On May 17, 1988, the complaint against Cal Trans was dismissed with prejudice in return for a waiver of costs by the State of California.

On December 13, 1989, prior to trial, the parties stipulated that the action would be bifurcated as to liability and damages. The district court found that Weakley was not negligent in operating the truck. The district court also found that Rogers was negligent in reentering Trinity Dam Boulevard without stopping or yielding the right of way to oncoming traffic and that his negligence was the sole cause of the accident. Based on these findings, the court entered a judgment in favor of the United States on February 16, 1990.

Rogers filed a timely notice of appeal on April 16, 1990. We have jurisdiction over the appeal from the district court's final judgment pursuant to 28 U.S.C. § 1291.

II.

The FTCA constitutes a limited waiver of sovereign immunity by the United States for:

injury or loss of property or personal injury or death 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. § 2672. Actions against the United States under the FTCA are governed by the substantive law of the state where the allegedly tortious act or omission occurred. Id. Miller v. United States, 945 F.2d 1464, 1466 (9th Cir.1991); McMurray v. United States, 918 F.2d 834, 836 (9th Cir.1990). Because Rogers was injured in California, we must look to California law in evaluating the merits of his claim.

Rogers contends that the judgment in favor of the United States should be reversed because the district court mistakenly found that the location where the accident occurred was an intersection of an access road or driveway and a highway with a speed limit of 55 miles per hour. Rogers argues that the accident location is a blind "intersection of highways" for which California Vehicle Code § 22352(a)(2) establishes a prima facie speed limit of 15 miles per hour.

We review de novo the district court's construction of California law under the FTCA. McMurray, 918 F.2d at 836. We review the district court's determination of negligence for clear error. Barnett v. Sea Land Serv., Inc., 875 F.2d 741, 745 (9th Cir.1989); United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.), cert. denied, 469 U.S. 824 (1984).

Section 22349 of the California Vehicle Code establishes a maximum speed limit of 55 miles per hour for anyone driving a vehicle on a highway. This general 55 mile per hour speed limit is modified by section 22352(a)(2), which establishes a prima facie speed limit of 15 miles per hour in the following situation:

When traversing any intersection of highways if during the last feet of the driver's approach to the intersection the driver does not have a clear and unobstructed view of the intersection and of any traffic upon all of the highways entering the intersection for a distance of 100 feet along all those highways, except at an intersection protected by stop signs or yield right-of-way signs or controlled by official traffic control signals.

Cal.Veh.Code. § 22352(a)(2). The term "highway" is further defined as "a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel." Cal.Veh.Code § 360.

Even assuming that the prima facie speed limit of 15 miles per hour set forth in section 22352(a)(2) applies to the accident site, we conclude that, to establish liability, Rogers was required to prove that Weakley drove the truck in a negligent manner. Under California law, evidence of a statutory violation by the defendant ordinarily gives rise to a rebuttable presumption of negligence if the plaintiff is one of the class of persons for whose benefit the statute was enacted, the accident was of a kind the statute was designed to prevent, and the violation of the statute was the proximate cause of the plaintiff's injury. Cal.Evid.Code § 669; Sagadin v. Ripper, 175 Cal.App.3d...

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