Klein v. U.S.A

• Decision Date: 26 July 2010
• Docket Number: No. S165549.,S165549.
• Citation: 112 Cal.Rptr.3d 722,50 Cal.4th 68,235 P.3d 42
• Court: California Supreme Court
• Parties: Alan Richard KLEIN et al., Plaintiffs and Appellants,v.UNITED STATES of America et al., Defendants and Respondents.

50 Cal.4th 68

235 P.3d 42

112 Cal.Rptr.3d 722

Alan Richard KLEIN et al., Plaintiffs and Appellants,v.UNITED STATES of America et al., Defendants and Respondents.

No. S165549.

Supreme Court of California

July 26, 2010.

COPYRIGHT MATERIAL OMITTED

Santiago Rodnunsky & Jones, David G. Jones and Tamara S. Fong for Plaintiffs and Appellants.

Thomas P. O'Brien, United States Attorney, Leon W. Weidman, Julie Zatz, Jonathan K. Klinck and Anoiel Khorshid, Assistant United States Attorneys, for Defendants and Respondents.

Sedgwick, Detert, Moran & Arnold and Frederick D. Baker for Pacific Gas & Electric Company, Southern California Edison Company, Southern California Gas Company and San Diego Gas & Electric Company as Amici Curiae on behalf of Defendants and Respondents.

Randolph Cregger & Chalfant and Joseph P. Mascovich for Union Pacific Railroad Company as Amicus Curiae on behalf of Defendants and Respondents.

KENNARD, J.

Plaintiff Alan Richard Klein was riding a bicycle for recreation on a two-lane paved road in Angeles National Forest in Southern California when he was struck head-on by an automobile driven by a part-time volunteer working for the United States Fish and Wildlife Service. Having been seriously injured in the collision, plaintiff sued the United States government (the owner of the national forest land) and its volunteer worker.

At issue here is the scope and applicability of California's Civil Code section 846, which provides, as relevant here, that a landowner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose.” The Ninth Circuit Court of Appeals has asked this court to decide whether this provision applies to “acts of vehicular negligence committed by the landowner's employee in the course and scope of his employment that cause personal injury to a recreational user of that land.” ¹

We conclude that Civil Code section 846 's liability shield does not extend to acts of vehicular negligence by a landowner or by the landowner's employee while acting within the course of the employment. We base this conclusion on section 846 's plain language. The statutory phrase “keep the premises safe” is an apt description of the property-based duties underlying premises liability, a liability category that does not include vehicular negligence. Furthermore, a broad construction of that statutory phrase would render superfluous another provision of section 846 shielding landowners from liability for failure to warn recreational users about hazardous conditions or activities on the land.

I

The facts are taken from the Ninth Circuit's order in Klein v. United States (9th Cir.2008) 537 F.3d 1027 requesting that this court decide a question of California law.

On August 29, 2004, plaintiff Alan Richard Klein was riding his bicycle for recreation on Bear Divide Road in Angeles National Forest in California. Bear Divide Road is a two-lane paved road that is open to the public and that is owned and maintained by defendant United States government. As plaintiff ² was cycling northbound, he was struck head-on by an automobile driven by defendant David Anderberg, a part-time volunteer for the United States Fish and Wildlife Service, who later told a California Highway Patrol officer that at the time of the collision he had been on his way to observe birds.

The injuries plaintiff sustained in the collision were severe, including a partially severed ear, broken ribs, a collapsed lung, a brain injury affecting memory and speech, and a brachial plexis injury ³ that permanently deprived him of the use of his left arm. In addition to these physical injuries, the collision resulted in a substantial loss of income, and thus serious financial hardship, to plaintiff and his wife, coplaintiff Sheryll Klein. This occurred because plaintiff was forced to take a medical retirement from his federal government job as an air traffic controller, while his wife, so that she could provide care for plaintiff, took an early retirement from her job as an elementary school principal.

After exhausting their administrative remedies, plaintiffs brought suit against the United States and Anderberg in federal district court in the Central District of California. The action against the United States was brought under the Federal Tort Claims Act, which provides for liability “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. § 1346(b)(1).) Against the United States, plaintiffs alleged two negligence theories: (1) the United States negligently maintained Bear Divide Road in an unsafe condition, and (2) the United States was vicariously liable for the vehicular negligence ⁴ of its volunteer employee, David Anderberg. Only the latter negligence theory is at issue here.

In its answer to plaintiffs' complaint, the United States defended on the ground that Civil Code section 846 shielded it, as owner of the United States Forest Service land on which the accident had occurred, from any negligence liability to a person, such as plaintiff, who was injured while using that land for recreation. The United States also disputed plaintiffs' allegation that, at the time of the accident, Anderberg was acting in the course and scope of his employment as a Forest Service volunteer.

The United States filed a summary judgment motion, which the district court granted. Regarding plaintiffs' negligence theory that the United States was vicariously liable for Anderberg's vehicular negligence, the district court assumed for purposes of ruling on the motion that at the time of the accident Anderberg was a United States employee acting within the course and scope of his employment. The district court concluded, nonetheless, that California's Civil Code section 846 immunized the United States, as a landowner, from liability for any injuries to plaintiffs resulting from negligent driving by Anderberg.

Plaintiffs appealed to the Ninth Circuit Court of Appeals. Recognizing the important issue of California law presented by this case, the Ninth Circuit requested that we decide this question: Does section 846 immunize a landowner from liability for acts of vehicular negligence committed by the landowner's employee in the course and scope of his employment that cause personal injury to a recreational user of that land?

II

In its order requesting that this court decide a question of California law, the Ninth Circuit explained why it had concluded that the question had not been authoritatively resolved under existing precedents. The Ninth Circuit's explanation provides a useful background for resolving the legal question at issue.

The Ninth Circuit observed, preliminarily, that although the landowner in this case happens to be the United States, under the Federal Tort Claims Act the federal government is liable only if a private person would be liable in the same circumstances under state law. Accordingly, the question to be decided is whether Civil Code section 846 's immunity would protect a private landowner from liability for damages resulting from physical harm to a person who has entered the landowner's property to engage in a recreational activity, when that harm was caused by the vehicular negligence of the landowner or the landowner's employee. ( Klein v. United States, supra, 537 F.3d 1027, 1030.)

Regarding that question, the Ninth Circuit concluded that there was “ ‘no clear controlling California precedent’ squarely” addressing the issue. ( Klein v. United States, supra, 537 F.3d 1027, 1030.) The court recognized that an intermediate state appellate court-Division Six of the Second Appellate District Court of Appeal-had held, in Shipman v. Boething Treeland Farms, Inc. (2000) 77 Cal.App.4th 1424, 92 Cal.Rptr.2d 566, that Civil Code section 846 's landowner immunity does extend to vehicular negligence. In Shipman, the plaintiff, a 16-year-old boy, was driving an all-terrain vehicle along a dirt road on the defendants' private property when his vehicle collided with a station wagon driven by the defendants' employee. The plaintiff sued the defendants, seeking damages for personal injury suffered in the collision, basing the action in part on the theory that the defendants were vicariously liable for negligent driving by their employee. The trial court granted summary judgment for the defendants, and the plaintiff appealed. The Court of Appeal affirmed, concluding that Civil Code section 846 shielded the defendants from negligence liability for an injury to an uninvited recreational user of their land, even an injury caused by vehicular negligence. ( Shipman, supra, 77 Cal.App.4th at pp. 1428, 1432, 92 Cal.Rptr.2d 566.)

The Ninth Circuit recognized that Shipman is squarely on point, and it acknowledged that it generally accepts state intermediate appellate court decisions in the absence of relevant precedent from a state's highest court. ( Klein v. United States, supra, 537 F.3d 1027, 1031-1032.) But the Ninth Circuit said that in this particular instance it had found what it termed “convincing evidence” that this court likely would disagree with the Court of Appeal's decision in Shipman. (Klein, at p. 1032.) The Ninth Circuit explained that it had found nothing in Civil Code section 846 's language, or in the circumstances surrounding its enactment, to indicate that it was intended to provide immunity for negligent driving or, otherwise stated, that it was “anything more than a premises liability exemption statute.” ( Klein v. United States, supra, 537 F.3d 1027, 1032.)

Its doubts about Shipman's validity were also based, the Ninth Circuit explained, on certain statements in this court's opinions in Ornelas v. Randolph (1993) 4 Cal.4th 1095, 17 Cal.Rptr.2d 594, 847 P.2d 560 ( Ornelas ) and Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 41 Cal.Rptr.3d 299, 131 P.3d 383 ( Avila ). ( Klein v....