Simpson v. U.S.

Decision Date03 August 1981
Docket NumberNo. 80-5020,80-5020
Citation652 F.2d 831
PartiesThomas Robert SIMPSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Steven Roseman, Brundage & Roseman, Los Angeles, Cal., for plaintiff-appellant.

Stephen E. O'Neil, Asst. U.S. Atty., Los Angeles, Cal., argued for defendant-appellee; Frederick A. Jacobsen, Asst. U.S. Atty., Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before TANG and NELSON, Circuit Judges, and CRAIG, * District Judge.

CRAIG, District Judge:

Thomas Simpson appeals from an adverse summary judgment granted in favor of the United States by the district court in an action brought by Simpson pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Jurisdiction of the appeal is founded upon 28 U.S.C. § 1291.

The uncontroverted allegations of fact show that on December 20, 1973, Simpson and two companions drove to the Creek in Inyo National Forest Recreation Area, California, where they began walking from the parking lot to the hot water pools along a marked and paved trail. While following the trail, Simpson read a United States Forest Service sign that stated, "WARNING Potholes and Scalding Water, Use Extreme Caution, No Life Guard on Duty, Swim at Your Own Risk, U.S.F.S." About half to three-quarters of the way down to the creek, Simpson and his friends left the asphalt path and walked straight down the snow-covered hillside to the water's edge. There Simpson walked onto a small peninsula jutting into the creek. He came to a sign warning, "Go beyond this sign at your own risk." Upon seeing the sign, he turned to his left to retreat, and stepped 4 to 5 feet away. Then the ground gave way, tossing him into the boiling water where he was scalded up to his waist.

Summary judgment was granted by the district court, upon reconsideration after an initial denial, because under California Civil Code § 846 the United States owed Simpson no duty of care absent an express invitation to come onto the land, payment of a consideration by him to enter the property, or willful or malicious conduct by the United States, none of which were found to be present.

In this instance the tort liability of the United States under the Federal Tort Claims Act, if any, is to be determined according to the law of California, since that is where the negligent act allegedly occurred. Richards v. United States, 369 U.S. 1, 6-8, 82 S.Ct. 585, 589-590, 7 L.Ed.2d 492 (1962).

Following the foregoing principle, the district court based its ruling upon its interpretation of California Civil Code § 846. That interpretation must be given great weight on appeal, but it may be disregarded "as clearly erroneous .... if it is without adequate evidentiary support" or if "it was induced by an erroneous view of the law. Ritter v. Morton, 513 F.2d 942, 949 (9th Cir.), cert. denied sub nom., Ritter v. Kleppe, 423 U.S. 947, 96 S.Ct. 362, 46 L.Ed.2d 281 (1975).

In an appeal from a summary judgment, the record must be viewed in the light most favorable to the party having opposed it in the trial court, in this case Simpson. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). Summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 467, 82 S.Ct. at 488.

This appeal raises the questions of whether California Civil Code § 846 is applicable to the United States in this context, and, if it is, (a) whether it violates equal protection as applied, (b) whether the conduct of the United States was willful or malicious, (c) whether Simpson was actually given an "express invitation," and (d) if Simpson had received an "express invitation," whether he had exceeded its scope.

As yet the California Supreme Court has not decided whether California Civil Code § 846 1 was intended to apply to land publicly held as well as to that held by private hands. The issue, however, has been presented to several of the California Courts of Appeal, with conflicting results. For instance, in Nelsen v. City of Gridley, 113 Cal.App.3d 87, 169 Cal.Rptr. 757, 760 (3d Dist. 1980), in a thorough analysis of the issues, it was held that California Civil Code § 846 was not applicable to public entity land owners. The contrary has been held by other of the California appellate courts. Blakely v. State of California 108 Cal.App.3d 971, 975, 167 Cal.Rptr. 1 (1st Dist. 1980); Moore v. City of Torrance, 101 Cal.App.3d 66, 166 Cal.Rptr. 192 (2d Dist. 1979); Gerkin v. Santa Clara Valley Water District, 95 Cal.App.3d 1022, 157 Cal.Rptr. 612 (1st Dist. 1979); English v. Marin Municipal Water District, 66 Cal.App.3d 725, 136 Cal.Rptr. 224 (1st Dist. 1977).

How that split among the California courts is resolved is not pertinent to the issue pending here, for the Federal Tort Claims Act makes the United States liable for negligence in the same manner and to the same extent as a private individual would be in similar circumstances. 28 U.S.C. § 2674. Since California Civil Code § 846 doubtless applies to private persons, it must, therefore, also apply in the same way to the United States. Phillips v. United States, 590 F.2d 297 (9th Cir. 1979) (per curiam ).

Simpson argues that if California Civil Code § 846 is determined to apply to the United States, it violates his right to equal protection because it creates classes of owners and users of land that do not bear a rational relationship to a legitimate state purpose.

That reasoning is faulty. The intent of the California legislature in adopting California Civil Code § 846 was to encourage landowners to open their property to the public for recreation. Phillips v. United States, 590 F.2d at 299. Such encouragement was necessitated by the threat of tort liability which in recent years has led landowners to bar people from trespassing on their land. Parish v. Lloyd, 82 Cal.App.3d 785, 147 Cal.Rptr. 431, 432 (4th Dist. 1978). When viewed against its intent and purpose, the statute has a rational relationship to a legitimate state purpose and is able therefore, to withstand an equal protection challenge. 2

It is contended by Simpson that the motion and response before the district court, together with accompanying affidavits, presented a genuine issue of material fact as to the willfulness or maliciousness of the United States in failing to warn or guard against a dangerous condition thereby precluding the issuance of summary judgment. We agree.

In support of this position Simpson points to evidence that employees of the United States knew (1) of a similar accident which had occurred earlier; (2) of the dangerous condition of the creek bank; and (3) that the forestry workers had not placed a warning sign specifically advising that the bank might collapse.

There is indeed an exception to California Civil Code § 846 regarding willfulness and maliciousness, which is defined as intentional, wrongful conduct done either with a knowledge that serious injury to another will probably result, or with wanton and reckless disregard of the possible results. O'Shea v. Claude C. Wood Co., 97 Cal.App.3d 903, 159 Cal.Rptr. 125, 130 (3d Dist. 1979).

When willfulness is an issue, summary judgment should be granted with caution, since questions such as intent or motive are presented. Gard v. United States, 594 F.2d 1230, 1234 n.2 (9th Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1976).

In this case the crucial facts regarding the type of warnings which were given, and thus the extent of the effort of the United...

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