Henderson v. U.S.
| Decision Date | 04 September 1987 |
| Docket Number | No. 83-5749,83-5749 |
| Parties | Ronald Roy HENDERSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael M. Angello, San Diego, Cal., for plaintiff-appellant.
Warren P. Reese, San Diego, Cal., for defendant-appellee.
Appeal from the United States District Court for the Southern District of California.
Before NELSON, CANBY and BRUNETTI, Circuit Judges.
THIRD AMENDED OPINION
Ronald Roy Henderson suffered severe injury as a result of contact with high voltage wires while trespassing on federal land. The district court entered judgment for the United States, dismissing Henderson's claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b) (1982). We reverse and remand.
On July 17, 1977, Jeffrey Harmon, then age 26, and Henderson, age 20, entered a remote section of Miramar Naval Air Station, formerly used as a missile test facility, to remove copper cable attached to a power pole. Henderson and Harmon entered the facility by car through a breach in the fence. Although "Government Property No Trespassing" signs marked the area, access was not difficult, and trespassing was commonplace. Vandalism, salvaging, firearm shooting, motorcycle riding, and beer drinking occurred with regularity at the missile test site area. Henderson and Harmon themselves had previously entered the facility.
Harmon and Henderson drove to a power pole near a water tank approximately 1000 feet from the missile test site area. After assuring Henderson that the power lines were dead, Harmon climbed the thirty-three foot power pole with the assistance of climbing gaffs (spiked shoes) and a safety belt. As Harmon attempted to cut the copper cable, he touched an exposed live wire. Henderson saw a flash and saw Harmon's body lurch backwards.
Henderson climbed the power pole in an attempt to return Harmon to the ground. Henderson grabbed a live wire, received a shock, and was thrown from the pole. Injuries from the fall left Henderson permanently paralyzed.
The United States, as the owner and operator of the naval base and missile test facility, is liable for claims brought under the FTCA to the extent a private party would be liable under similar circumstances. 1 28 U.S.C. Sec. 1346(b) (1982). Here, the Under California law, as a general rule, a "defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous." Tarasoff v. Board of Regents, 17 Cal.3d 425, 434, 551 P.2d 334, 342, 131 Cal.Rptr. 14, 22 (1976); Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 399, 525 P.2d 669, 680, 115 Cal.Rptr. 765, 776 (1974). The district court found that the accident resulting in Henderson's injury was not foreseeable. We review the district court's factual determinations under the clearly erroneous standard. See United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We review the legal determinations de novo. Id. at 1201.
alleged wrongdoing took place in California. We look to California law to determine the rights, duties, and liabilities involved in the maintenance of high voltage power lines. See Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.) (law of the state where the act or omission occurred determines whether actionable duty exists under the FTCA),cert. dismissed, 473 U.S. 934, 106 S.Ct. 30, 87 L.Ed.2d 706 (1985)
The district court's conclusion that the accident was not foreseeable was based on three factors. First, the court found that while members of the public entered the facility to "sightsee, picnic, drink beer, have parties, spray paint graffiti, commit vandalism and take copper wiring and other material," those activities took place at the missile test site, not at the nearby water tank area. 2 Second, the court found no evidence of tampering with the power poles before the accident that should have placed government employees on notice of possible danger. Third, the court determined that the government could not be expected to foresee the actions of Harmon or Henderson or of "people in the same status," apparently referring to their presence on government land as trespassers and thieves.
California law imposes a duty on a property owner, as we view the government in this FTCA case, to act as "a reasonable man in view of the probability of injuries to others," without giving determinative weight to the status of the injured party. Rowland v. Christian, 69 Cal.2d 108, 119, 443 P.2d 561, 568, 70 Cal.Rptr. 97, 104 (1968) (en banc). "Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it ... the trier of fact can reasonably conclude that a failure to warn [of] or to repair the condition constitutes negligence." Mark v. Pacific Gas & Electric, 7 Cal.3d 170, 177, 496 P.2d 1276, 1280, 101 Cal.Rptr. 908, 912 (1972) (quoting Rowland, 69 Cal.2d at 119, 70 Cal.Rptr. at 104, 443 P.2d at 568).
Here, the clear weight of the evidence shows that the danger posed by the high voltage wires at an unused facility, when combined with indications of potential public contact with the hazard, gave rise to foreseeable harm. It is undisputed that trespassing, theft of property, and other activities were uncontrolled and extensive within the missile test facility as a whole. The public had virtually uninhibited access to the area through often-breached fences ornamented with bullet-riddled "no trespassing" signs.
We believe that the district court's distinction between two areas of the missile test facility, the missile test site and the water tank area, is artificial and unsupported by the evidence. No physical barrier, such as a fence, separates the test site from the water tank area. The water tank area is part of the facility and the subject of at least some public curiosity. In fact, Harmon and his family drove through the Next, the district court's conclusion that no instance of tampering with power poles had occurred to put government employees on notice, contradicts its conclusion that Harmon himself had stolen conductor wires from another power pole fifteen days before the accident. Thus, the absence of stolen conductor wires and the presence of cut tail ends must have gone unnoticed during at least fifteen area security inspections for the government to have been unaware of tampering. Government employees, who inspected the area between one and four times daily, reasonably should have been aware of Harmon's tampering.
facility, including the water tank area, one month before the accident. Given the rampant trespassing at the missile test site, a reasonable landowner would have been placed on notice that the water tank area, 1000 feet away and accessible by road, was also subject to unauthorized visitation. 3 The district court's finding to the contrary is clearly erroneous
Third, we interpret the district court's reference to Harmon's and Henderson's "status" to comply with California law--that is, as having some bearing on the question of liability, but not as a determinative factor. See Rowland, 69 Cal.2d at 119, 443 P.2d at 568, 70 Cal.Rptr. at 104. However, because almost all the foreseeable victims were trespassers and at least some of them were thieves, Harmon's and Henderson's status has no bearing on the issue of foreseeability in this case.
Additional factors also persuade us of the foreseeability of the potential harm. First, the presence of high voltage wires constituted a high risk of harm, reasonably requiring heightened caution. See Mark, Cal.3d at 178, 496 P.2d at 1281, 101 Cal.Rptr. at 913. Second, a Navy electrician testified as to the navy's policy of deenergizing out-of-use power lines for reasons of safety. The final remaining use for the power lines at the facility--a communications radio--had been removed almost a month before the accident. The Navy's policy indicates an awareness of potential hazards. Third, before the accident, another Navy electrician recommended deenergizing the power lines, again evidencing the government's awareness of the danger.
In sum, we believe that the potential danger of the 12,000 volt power lines at an unused facility, combined with evidence of easy access, extensive vandalism, and damage to other power lines at least fifteen days before the accident creates a foreseeable risk of injury.
The foreseeability of risk ordinarily gives rise to a duty to reduce or warn of that risk. See Molsbergen, 757 F.2d at 1021; Tarasoff, 17 Cal.3d at 434, 551 P.2d at 342, 131 Cal.Rptr. at 22. The district court did not find the accident foreseeable and therefore did not determine the extent of the government's duty under California common law. It also concluded that the government was not presumed negligent under Cal.Evid.Code Sec. 669(a), 4 because it determined that California Public Utility Commission General Order No. 95 (GO 95), setting forth safety standards for the design and construction of high voltage power lines, did not apply to the United States in this case. Because the applicability of GO 95 to the United States raises a legal issue, we address that issue first.
Under the statutory provision for presumed negligence, any applicable statute, ordinance, or regulation defines the The principal regulatory power of the Commission extends only to "public utilities." See Cal.Pub.Util.Code Secs. 201-2115 (West 1975 & Supp. 1987). The predecessors of these provisions, originally enacted in 1911, created the California Railroad Commission ...
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