Cleveland v. U.S., C 06-3853 PJH.

• Decision Date: 18 April 2008
• Docket Number: No. C 06-3853 PJH.,C 06-3853 PJH.
• Parties: Sheila CLEVELAND, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of California

Page 732

546 F.Supp.2d 732

Sheila CLEVELAND, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. C 06-3853 PJH.

United States District Court, N.D. California.

April 18, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael Scott Henderson, Steven Orin Teal, Teal & Montgomery, Santa Rosa, CA, for Plaintiffs.

Katherine Burke Dowling, Neill Tai Tseng, United States Attorney's Office, San Francisco, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

PHYLLIS J. HAMILTON, District Judge.

On November 28, 2007, the court heard argument in defendant's motion to dismiss the above-entitled action for lack of subject matter jurisdiction and alternative motion for summary judgment, and plaintiffs' motion for partial summary judgment. Plaintiffs appeared by their counsel Michael S. Henderson, and defendant appeared by its counsel Katherine B. Dowling. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendant's motion to dismiss; GRANTS defendant's alternative motion for summary judgment; and DENIES plaintiffs' motion.

INTRODUCTION

This is a case brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et seq., alleging willful failure to guard or warn against a dangerous condition or structure. Plaintiffs are Sheila Cleveland, the widow of Dale Cleveland, and Chelsea Cleveland and Tyson Cleveland, the children of Dale Cleveland.

Dale Cleveland died from injuries he received in October 2003 when he drove his vehicle up and over an embankment and into the Union-Zaar mine shaft.¹ The Union-Zaar mine shaft is an unmarked, abandoned vertical mine shaft located in the Smith River National Recreation Area ("SRNRA"), which is part of the Six Rivers National Forest in Del Norte County, California. The Six Rivers National Forest falls under the jurisdiction of the United States Department of Agriculture (USDA) Forest Service ("the Forest Service").

The United States seeks an order dismissing the case for lack of subject matter jurisdiction, based on the "discretionary function" exception to the FTCA In the alternative, the United States seeks summary judgment on its third and eighth affirmative defenses, asserting that the doctrine of assumption of the risk precludes plaintiffs from establishing negligence, and that any failure to warn was not willful.

Plaintiffs seek summary judgment on the United States' ninth affirmative defense, asserting the discretionary function exception to the FTCA, on the ground that the exception does not apply in this case.

BACKGROUND

A. Factual Background

On October 11, 2003, Dale Cleveland was "off-roading" (also referred to as "four-wheeling") with his adult son Tyson Cleveland and a group of friends in the SRNRA. Dale Cleveland was driving his 1970 Toyota Landcruiser, and Tyson Cleveland was riding in the passenger seat. The remaining members of the group were distributed among three other vehicles.

Late in the afternoon, the vehicles were traveling on Del Norte County Road 305, in the Altaville area of the SRNRA Dale Cleveland's vehicle was in the lead. At one location, where County Road 305 passes across privately-owned land, two primitive dirt and gravel trails lead off County Road 305 — one extending to the west, referred to by the parties herein as the "upper access route," and one (a little further south) extending to the southwest, referred to as the "lower access route." The upper and lower access routes do not appear on the Forest Service's SRNRA map.² Slightly north of the upper access route, and extending southeast off County Road 305, is another dirt and gravel trail, which is designated on the SRNRA map as an "OHV" (off-highway vehicle) route.

The vehicles turned off County Road 305 onto the dirt and gravel lower access route. The lower access route is approximately 8.5 feet wide, with a surface consisting of rocks and boulders of varying sizes and shapes. Approximately ½ mile down the lower access route is a fork in the road. To the right, the trail inclines up a hill, where, in approximately ¼ mile, it joins up with the upper access route, in effect making a loop that goes back to County Road 305.

When Dale Cleveland's vehicle reached the fork, he stopped to Wait for the rest of the group to catch up. In a declaration filed in support of plaintiffs' motion, Tyson Cleveland states, "After waiting a couple of minutes, we decided it would be fun to drive up the right fork of the road a little way to see where it went." Dale Cleveland drove up about 100 feet, and then stopped.

According to Tyson Cleveland, Dale Cleveland then started to back up, having decided there was no good place to turn around. At that point, the rest of the vehicles pulled up behind Dale Cleveland's vehicle. Dale Cleveland then resumed driving forward to look for a place to turn around. He drove up the trail, to the place where it joined the upper access route.

At the point where the two trails joined, the Clevelands saw what Tyson Cleveland describes as "look[ing] like a turn out, leading up a short embankment to a plateau above the roadway." Tyson Cleveland "thought this would be a good place to turn around," and also "thought it would be fun to drive up the embankment in the Land Cruiser."

Thus, rather than turning to the left along the relatively level intersecting upper access route, Dale Cleveland made a 90-degree turn to the left, crossed the upper access route at a perpendicular angle, and drove his vehicle straight up the steep embankment, which extends upward at approximately a 48-degree angle. The embankment is approximately 10-12 feet wide, with two large rocks embedded roughly in the center. The vertical rise from the trail to the top of the embankment is approximately 8 feet.

According to Tyson Cleveland, his father drove up "with the engine idling" — a maneuver known as "crawling," in which the driver puts the vehicle in low gear and lets the engine pull the vehicle along. The vehicle's tires were "aired down," to "[p]robably like 5 pounds pressure in each tire, so basically flat, to where they're just wrapping around everything, just grabbing on."

Dale Cleveland's friend Jerry Bachman was following the Cleveland vehicle, and testified that Dale and Tyson Cleveland were looking back behind them and smiling as they climbed up the embankment. Tyson Cleveland testified that as the Land Cruiser climbed the embankment, they could not see what was in front of them, and that neither he nor his father stopped the vehicle to get out to see what was up at the top of the embankment.

At the top of the embankment, approximately 20 feet from its base at the side of the trail, Dale Cleveland drove forward, whereupon the Land Cruiser plummeted straight down into the Union-Zaar mine shaft. The opening of the mine shaft is approximately 3-4 feet in from the top of the embankment, and is approximately 12 feet in diameter. The shaft itself is approximately 70 feet deep. At the time of the accident, the mine shaft was not fenced off or enclosed, or signed or marked in any visible way. Dale Cleveland was killed in the crash, and Tyler Cleveland was seriously injured.

Tyson Cleveland testified in his deposition that Dale Cleveland had been drinking alcohol the day of the accident. Tyson Cleveland stated that he saw his father drink "a beer" while they were waiting at the fork for the other vehicles to catch up. He claimed that Dale Cleveland was not drinking alcohol at any time while he was driving. He did not know whether his father had more than the one beer.

A subsequent blood test indicated that Dale Cleveland had a .10 blood alcohol level, although plaintiffs dispute the validity of the blood test. Numerous beer cans and some marijuana were recovered from the vehicle after the accident. California Highway Patrol Officer Rick Barry, who conducted the accident investigation, concluded that the cause of the accident was that Cleveland was under the influence of alcohol, in violation of California Vehicle Code § 23152(a).

Members of the party, including Tyson Cleveland, were aware that numerous abandoned mines were located in the area where they were four-wheeling, and they were headed to see some double-decker abandoned mine shafts the day of the accident. However, Tyson Cleveland had never investigated the area where the October 11, 2003 accident occurred for possible hazards before riding there, and he did not believe his father had ever driven in that area.

Tyson Cleveland also testified that he had not consulted the SRNRA visitor map, which shows the designated Forest Service roads in the SRNRA, including the designated OHV routes, and did not believe his father had. In fact, Tyson Cleveland had never looked at the SRNRA map prior to the accident. He states in his declaration that he believed that "we were allowed to 4-wheel on any road in the NRA that was not blocked off, gated or had a sign stating that the road was not to be used."

He testified that "[w]e never carried a map with us" because "the adventure of four-wheeling was just to go out and be on an adventure, not to look at the map and tell us exactly where we are going. We wanted to go out there and find new stuff." He testified that it was more fun off-roading on challenging terrain, and that "[s]ometimes it's scary ... [Y]ou don't know if you want to do that, but — you might roll or you — anything could happen, so you've just got to be aware."

Tyson Cleveland admitted that going up the steep embankment would be considered "hill climbing" or "rock crawling," and testified that he goes "hill climbing" every time he goes OHV riding. He testified that he and his father did not discuss, whether to climb the embankment, and that the decision to do so was his father's...