Judd v. United States, Civ. No. 83-2475-K(CM).

• Decision Date: 09 January 1987
• Docket Number: Civ. No. 83-2475-K(CM).
• Citation: 650 F. Supp. 1503
• Parties: Steven Michael JUDD, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of California

650 F. Supp. 1503

Steven Michael JUDD, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 83-2475-K(CM).

United States District Court, S.D. California.

January 9, 1987.

Irwin Gostin, Crabtree Building, San Diego, Cal., for plaintiff.

Karen M. Shichman, Asst. U.S. Atty., United States Courthouse, San Diego, Cal., for defendant.

CORRECTED MEMORANDUM DECISION

KEEP, District Judge.

Plaintiff, Steven Michael Judd, is suing defendant, United States of America, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. He alleges two causes of action based upon negligence. Count 1 alleges negligence predicated upon California Health and Safety Code §§ 24050-24054, the River and Resort Act. Plaintiff's theory is that the Black Canyon Falls¹ area of the Cleveland National Forest, the site of the accident upon which this suit is predicated, is a resort; hence, under California law, defendant had a duty to sound out swimming areas and post warning signs which defendant failed to do. Count 2 alleges negligence based upon the Forest Service's own policy; it is plaintiff's theory that Forest Service policy required the posting of signs warning of hazardous diving conditions in the Black Canyon Falls area. Because it failed to do so, defendant violated a duty owed to plaintiff pursuant to federal law and hence is liable to him.

The United States denies the factual allegations of plaintiff's complaint. Further, defendant argues the posting of signs by the Forest Service under the facts of this case was a discretionary function which precludes jurisdiction over the defendant pursuant to the Federal Tort Claims Act. Assuming there is jurisdiction, the government argues that this action is covered by the Recreation Use Statute, California Civil Code § 846. Pursuant to this statute, defendant has no liability as it charged no fees, did not invite plaintiff to the falls, and the failure to post signs was not willful or malicious.

Federal jurisdiction is predicated upon the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. Venue is appropriate as plaintiff was a resident of the Southern District of California at the time of the incident and has continued to reside here. Further, the accident occurred upon land owned, operated, and maintained by the United States located in the Southern District of California.

FACTS

Plaintiff is 38 years of age. On April 24, 1981 he and a friend went to the Black Canyon Falls area of the Cleveland National Forest to swim and dive. National forests are open to the public. There is no fee to enter a national forest, although one is charged a small fee if one wishes to occupy camping space in a designated campground. The Cleveland National Forest is maintained and supervised by the National Forest Service. It consists of one-half million acres of forest land that spans from foothills to high crest country (elevations are from 2,500 feet to approximately 8,000 feet) in San Diego County, Orange County, and Riverside County. The Cleveland National Forest contains 1,500 miles of streams and in 1981 had approximately two million visitors.

Within a national forest there are some developed sites although the vast amount of the forest is undeveloped. A developed site is an area where the natural environment has been altered for some use such as in visitor centers or campgrounds.

The Black Canyon Falls area of the Cleveland National Forest has not been altered. It is a natural pool formed by run-off water from the mountains. The pool is approximately 37 feet by 30 feet. On the north and south sides of the pool there are huge granite boulders. The boulders are smaller on the east, where the water runs into the pool via a small natural fall, and smaller also on the west, where the water leaves the pool down rocks that form a stream bed. The water is clear except for late summer when there is very little run-off and the water becomes stagnant and algae develop. The west side of the pool is shallow and rocks and boulders on the bottom are visible. There is one large boulder protruding from the pool which is apparently always visible. The east side of the pool is deepest with a depth of approximately 13½ feet in a two-foot pocket. Water around this pocket varies from 7½ feet to 10 feet in depth due to variations of the bedrock. There are some variations in water level, but these generally only occur after a torrential rain storm or when no water flows into the pool and water evaporates. Otherwise, due to the fact the western stream bed is large, water that flows in from the falls can be eliminated by the western stream bed.

Black Canyon Falls is located about one-quarter mile from a developed site, the Black Canyon Campground. There are no signs pointing to the falls nor is it listed on any National Forest literature. The stream passes by the campground and if one hikes up the stream over boulders and rocks, one can reach Black Canyon Falls. The only other way to get to the falls is to park on a road adjacent to them and hike down a very steep, dangerous incline.

On April 24, 1981, plaintiff and his friend parked his friend's car in a public parking area of the Black Canyon campground. There is no charge to park in public parking areas; one is only charged if one wishes to use a camping site. Plaintiff and his friend hiked to the falls via the one-quarter mile "boulder and rock" route. When they arrived, they sunned on the rocks and swam and dove off rocks into the pool for approximately two hours. There were other persons sunning and swimming at the falls; there were a few other divers.

Plaintiff is an accomplished diver. He was a high school varsity diver who competed in two-meter diving competitions. He trained on a one-meter board and due to the fact the pool he dove into was only 9 feet deep, he had to learn to roll once he hit the water as 9 feet was not enough depth for a one-meter dive. He had some experience high diving, though as recreation and not in competition.

Plaintiff tested the Black Canyon Falls pool for depth and found a pocket approximately 13½ feet deep. He and a friend dove from rocks about 10 feet and 15 feet in height into the deeper area of the pond. Plaintiff decided to try a high dive from a rock approximately 35 feet above the water. To reach the pond from this point, plaintiff had to dive over a shelf which protruded 12 feet some 25 feet below him. Due to the fact this 35 foot high rock was farther to the west than the rocks he previously dove from, the deepest part of the pool was approximately 35 feet away, on a horizontal plane, from the spot he chose as a diving platform. Plaintiff climbed up to the rock and sat for approximately 15 minutes looking into the pool. Then plaintiff attempted a swan dive; his head hit something, presumably the bottom.² Due to the injury to his head, plaintiff is now a quadriplegic. Plaintiff is suing the United States for the damages he sustained as a result of the attempted swan dive. His theory is that had a sign been posted warning of the hazards of diving in Black Canyon Falls, he would not have attempted his dive.

The Forest Service knew people sunned and bathed in this area; also it was known people often jumped into the water from lower rocks. There is no evidence the Forest Service knew people jumped or dove from the 35 foot rock from which plaintiff attempted his dive, nor is there evidence of any prior diving or jumping injuries at Black Canyon Falls.

The following issues of law are presented by this case.

1. Does the "discretionary function exception" to the federal government's waiver of immunity under the Federal Tort Claims Act bar recovery by plaintiff?

2. If the discretionary function exception does not apply, is the federal government negligent under state law?

3. If the discretionary function exception does not apply, is the federal government liable for breaching a duty created by federal policy?

4. If there was a breach of state law or federal policy, was the breach of duty, if any, the legal cause of plaintiff's injury? Each issue will be discussed in turn.

I. Discretionary Function Exception

A party may bring a cause of action against the federal government only to the extent that the government has waived its sovereign immunity. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976). The burden of demonstrating an unequivocal waiver of immunity rests on the party bringing suit against the federal government. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984).

The "discretionary function exception" to the government's waiver of immunity under the Federal Tort Claims Act is set forth in 28 U.S.C. § 2680(a). Section 2680(a) precludes the exercise of jurisdiction over any claims "based on the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). See Dalehite v. United States, 346 U.S. 15, 33, 73 S.Ct. 956, 966-67, 97 L.Ed. 1427 (1953).

In determining whether the exception applies, a court must look to "the nature of the conduct, rather than the status of the actor" because the exception covers not only agencies, but all employees exercising discretion. United States v. S.A. Empressa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984). The section is to be applied when its purpose would be served; this is to prevent judicial "second-guessing" of administrative decisions based on political, economic, and social policy through private tort actions. Mitchell v. United States, 787 F.2d 466, 468 (9th Cir.1986).

The government urges that the Forest Service decision not to take precautionary measures by posting signs at Black Canyon Falls was a...