Pacheco v. USA

• Decision Date: 03 May 2000
• Docket Number: No. 99-15421,99-15421
• Citation: 220 F.3d 1126
• Parties: (9th Cir. 2000) DAVID PACHECO, individually and as guardian ad litem for Trevor J. Pacheco, a minor, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, PAUL KALETH, and PARKS MANAGEMENT COMPANY, Defendants-Appellees. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1126

220 F.3d 1126 (9th Cir. 2000)

DAVID PACHECO, individually and as guardian ad litem for Trevor J. Pacheco, a minor, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, PAUL KALETH, and PARKS MANAGEMENT COMPANY, Defendants-Appellees.

No. 99-15421

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted May 3, 2000--San Francisco, California

Filed July 31, 2000

John C. Stein and Richard Gregg, The Boccardo Law Firm, LLP, San Jose, California; John R. Cady, Cady & Campbell, LLC, Platte City, Missouri; and B. E. Bergesen, III, Berkeley, California, for the plaintiffs-appellants.

John N. Dahlberg and Charles P. Murrin, Dillingham & Murphy, LLP, San Francisco, California, for defendants-appellees Paul A. Kaleth and Parks Management Company.

Appeal from the United States District Court for the Northern District of California, Ronald M. Whyte, District Judge, Presiding; D.C. No. CV-98-20376-RMW

Before: Harlington Wood, Jr.,¹ Andrew J. Kleinfeld, and Susan P. Graber, Circuit Judges.

Robert S. Mueller, III, and Gail Killefer and Yonkel Goldstein, United States Attorney's Office, San Jose, California, for defendant-appellee United States of America.

WOOD, Circuit Judge:

Regardless whether under California law anyone may be responsible for this tragedy, it is absolutely clear that the slightest bit of care, thought, trouble, and expense by the defendants could have saved the lives of the three victims: eleven-year-old Ivy Pacheco and her mother and grandmother, both of whom tried in vain to rescue Ivy from the ocean. The district judge allowed defendants' motion to dismiss plaintiff's complaint with prejudice based on an interpretation of California law, but admitted at the hearing on the motion to dismiss that the case troubled him as it does us. Because the case was dismissed pursuant to Fed. R. Civ. P. 12(b)(6), we must take the complaint allegations of material fact as true and construe them in the light most favorable to the nonmoving party, here the appellant David Pacheco. Westinghouse Elec. Corp. v. Newman & Holtzinger, P.C., 992 F.2d 932, 934 (9th Cir. 1993).

I. BACKGROUND

In April 1997, Mary Pacheco, age 38; her daughter, Ivy; her eight-year-old son, Trevor; and Mrs. Pacheco's mother, Judith Rombold, age 63, residents of Kansas, drove to Pfeiffer Beach Day Use Area ("Beach"), a public recreational area which is part of the Los Padres National Forest, in the Big Sur area of the Pacific Coast. The defendant United States owns, manages, and controls the Beach for which it granted a special use permit to defendants Parks Management Company and Paul Kaleth, the owner and general manager of Parks Management Company.

The Beach is widely advertised by defendants and others with information about it also available on the internet. Publicity often describes the Beach as "a wide, sandy beach" and as "the first of Big Sur's truly great beaches. " United States Forest Service publications recognize that visitors to the Beach area "are quickly drawn to the white sand upon the beach" and that annually thousands of visitors come to the Beach for beach play.

One feature of the Beach, which is not advertised or otherwise made known, is that this particular Beach allegedly has particularly hazardous surf with strong riptides and undercurrents which flow swiftly with great force from the shore back into the ocean. When the Pachecos visited the Beach, there was no warning whatsoever about the riptides. The danger of the riptides, capable of carrying persons out into the ocean, is not readily apparent, particularly to young children who are less able to anticipate the dangers and cope with the undertow. Nevertheless, the dangerous riptides were known to defendants and to others in the vicinity. The drownings in this case were not the first such incident. Other visitors allegedly have been carried out to sea; only a couple of months before this incident one man had to be rescued by helicopter. Plaintiff alleges that defendants for at least a year prior to this incident had actual knowledge of the extreme hazards of this Beach and, in particular, should have foreseen the likelihood of a child being caught and swept away to drown.

The Beach, open year round, consists of an entry and information booth, three parking lots, a toilet facility, and one or more bulletin boards. Fees are collected upon entry, $5.00 per auto, $25.00 per tour bus, $15.00 for an annual pass, and $2.00 for bikes and hikers. There is a well-worn path to the Beach from the parking area. The bulletin board advises visitors of the rules, but at the time the Pachecos visited the Beach, there were no warnings on the bulletin boards or anywhere else about the dangers in the water. Parks Management employees are instructed to exhibit the "good host approach" to visitors. For the unsuspecting it is a cordial invitation to possible disaster because of a potentially deadly hazard known to the defendants, who in no way made any effort to share their knowledge with visitors. A needless trap was created with deadly consequences.

When the Pacheco family entered the Beach by automobile and paid the entry fee, they were given two toy plastic beach buckets for use on the Beach. One of the toy buckets was perforated, apparently to let sea water drain out when a child used it to play in the surf. While Ivy was playing and wading, not swimming, in a calm portion of the water, the surf rolled up on the Beach. It caught her, and the riptide swept her out into the ocean where she drowned. Her mother and her grandmother both rushed to save Ivy, but they too were caught by the riptide and carried into the ocean where they also drowned. Those familiar with riptides appreciate that a riptide can suck the sand out from underfoot, cause you to lose your balance and then swiftly sweep you out to sea. The Pacheco family from the Midwest was not familiar with the danger lurking beneath the blue waters at the Beach. It is not necessary to go into deep water, or even venture far into the surf, to be at the mercy of riptides.

In the complaint, the plaintiff alleges that the defendants owed a duty of care to him and to his three decedent family members and that the defendants breached that duty by failing to protect the decedents from or even to warn them of the danger of the riptides, which was well known to the defendants but not to the Pachecos. The complaint alleges that, had the Pachecos been warned of the danger of wading or playing in the surf, Ivy would not have gone into the water. Plaintiff alleges therefore that defendants' negligence was the direct and proximate cause of the drownings.

Plaintiff filed a second amended complaint on November 2, 1998. Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The district court held a hearing on the motion to dismiss on February 5, 1999, and on February 12, 1999, issued its order. The district court noted in its order that there was no representation by the defendants that the ocean adjacent to the Beach was safe for swimming. The district court found that plaintiff's allegations did not establish that defendants had a duty to warn or guard against the naturally occurring dangers in the ocean adjacent to the Beach because, under California law, adjacent land owners cannot control the ocean. In reaching this conclusion, the district court relied on Swann v. Olivier, 28 Cal. Rptr. 2d 23 (Cal. Ct. App. 1994), Princess Hotels International, Inc. v. Superior Court of San Mateo County, 39 Cal. Rptr. 2d 457 (Cal. Ct. App. 1995), and Alcaraz v. Vece, 929 P.2d 1239 (Cal. 1997). Seeking California guidelines, as we must, we also examine those cases and compare them to the facts of the present case. The district court rejected the plaintiff's alternate theories of liability as well and dismissed the complaint with prejudice. Plaintiff filed this timely appeal.

II. ANALYSIS

We are considering a California geographic area commonly referred to as Pfeiffer Beach, so first we ought to determine what the word "beach" means. One dictionary, Oxford American, defines "beach" as "the shore between high and low water mark, covered with sand." OXFORD AMERICAN DICTIONARY 52 (1980). However, Webster's Dictionary, in a more expansive definition, defines a beach as "a gently sloping shore of an ocean . . . covered by sand." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 189 (1981). It also defines a beach as "a stretch of sand placed beside a bathing area for the bather's pleasure and recreation." Id. That latter definition, it seems to us, is more in keeping with the general perception of what a beach is publically considered to be. Water is an important part of the beach. If it were not, the beach would be just a big sandbox. It takes water for children to build sand castles or to play in the water that washes up on the sand.

A dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6) is reviewed de novo. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). A complaint should not be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle it to relief." Williamson v. General Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000). Appellant's claims against Kaleth and Parks Management Company are based on diversity of citizenship pursuant to 28 U.S.C. S 1332, and his claims against the United States are based on the Federal Torts Claims Act ("FTCA"), 28 U.S.C. S 1346. Under the FTCA, the United States may be liable, "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. S 2674; see also 28 U.S.C.S 1346(b). We apply the substantive law of California, as interpreted by the California Supreme Court. Karen Kane, Inc. v. Reliance Ins. Co., 202 F.3d 1180, 1183 (9th Cir. 2000).

First, we will examine...