Thompson v. U.S.

• Decision Date: 13 March 1979
• Docket Number: No. 76-2555,76-2555
• Citation: 592 F.2d 1104
• Parties: Gary THOMPSON, an Incompetent, by Charles F. Thompson, his Guardian ad litem, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1104

592 F.2d 1104

Gary THOMPSON, an Incompetent, by Charles F. Thompson, his Guardian ad litem, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 76-2555.

United States Court of Appeals Ninth Circuit.

March 13, 1979.

William M. Shernoff (argued), of Hafif & Shernoff, Claremont, Cal., for plaintiff-appellant.

Dzintra J. Janavs, Asst. U. S. Atty. (argued), Los Angeles, Cal., for defendant-appellee.

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

Before CHAMBERS and HUG, Circuit Judges, and SOLOMON, ^* District Judge.

HUG, Circuit Judge:

Gary Thompson, through his guardian ad litem, brought an action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), for injuries he received in the course of a motorcycle race on federal land. The Bureau of Land Management (BLM) had granted a permit to Ronald Vincellette, on behalf of the Sportsman Racing Association (Association) to conduct the race. The appellant contends that the injury resulted from the negligent marking of the race course or the failure to properly control the spectators and that the United States owed a duty to appellant to assure the race was conducted safely. The district court entered a summary judgment for the government, from which Thompson appeals. We affirm.

Facts

On September 18, 1972, the Riverside, California office of the BLM received a Special Land Use Application from the Association, for permission to conduct a European-style scrambles motorcycle race on October 1, 1972. The BLM issued the permit on September 29. As a special condition to the permit, Ronald Vincellette, on behalf of the Association, agreed to assume responsibility for public safety at the event. The Association laid out a race course through the hilly desert near Adelanto, California, on United States government land. The course was marked with colored ribbons tied to bushes, and the spectator area near the finish line was sectioned off for several hundred feet by a rope with colored pennants. Three races had been run prior to the 250 cc motorcycle novice race in which Thompson participated. Thompson commenced the fourth race and, when approaching the finish line at the end of his third and final lap, he crashed and was struck by oncoming racers, causing his injuries.

Discussion of the Law

A summary judgment is proper only where there is no genuine issue of any material fact or when, viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law. People of State of California ex rel. Dep't of Transp. v. United States, 561 F.2d 731, 735 (9th Cir. 1977); Zweig v. Hearst Corp., 521 F.2d 1129, 1134 (9th Cir.) Cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975).

The only real dispute concerning the facts is whether the accident happened as a result of spectators being allowed to walk in the path of the appellant driver, causing him to swerve to miss them, or whether it resulted merely from his own carelessness in attempting to pass another motorcycle at the end of the race. In reviewing this summary judgment, we must assume the facts to be as stated by the appellant and determine whether the government is entitled to a judgment as a matter of law. We must therefore assume that the injury resulted from a negligent failure to mark the race course properly or to control the spectators so as to avoid interference with the racers.

Appellant Thompson seeks to recover damages from the United States under the Federal Tort Claims Act (FTCA), which provides at 28 U.S.C. § 1346(b):

(T)he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances 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.

No action lies against the United States unless the Congress has authorized it and the relinquishment of sovereign immunity must be clear to give jurisdiction for tort actions. Dalehite v. United States, 346 U.S. 15, 30-31, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The United States is liable under the FTCA only for damages caused by the negligent or wrongful act or omission of an employee of the United States. Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973).

The government is not responsible for the negligence of the employees of other entities or agencies, even though they are working under a federal contract, maintaining property owned by the federal government, or working on projects funded by the federal government. Logue, 412 U.S. 521, 93 S.Ct. 2215 (county employees under a contract to house federal prisoners); Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965) (state national guard civilian employees maintaining federally-owned aircraft); United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976) (community action agency funded under a federal program). The United States thus is not liable under the FTCA for any negligence of agents or employees of the Association, even though they were conducting the race on federal land, since they could not be classified as federal employees.

The FTCA furthermore does not authorize suit against the government on claims based upon strict or absolute liability for ultrahazardous activity. Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972); Dalehite, 346 U.S. at 44-45, 73 S.Ct. 956. Negligence or a wrongful act or omission of a government employee must be found under circumstances where the United States, if a private person, would be liable in accordance with the law of California, where the alleged tort occurred. 28 U.S.C. § 1346(b).

The appellant argues that the government had a duty to see that the race course was designed properly and that the spectators were controlled, and that the BLM employees were negligent in failing to carry out that duty. Let us examine the contended origins of this duty. Appellant first argues that the mere status of a landowner who permits another to use its land imposes a duty under California law to assure that the activities conducted on the land are not conducted negligently.

The appellee counters with the contention that California Civil Code, § 846 severely restricts the liability of landowners who permit the general public to use their land for recreation. ¹ The purpose of the statute was to encourage landowners to allow members of the general public to use their land for recreational purposes, including vehicular riding, without incurring liability for permitting that use. See Phillips v. United States,590 F.2d 297 at 298 (9th Cir. 1979). However, § 846 has three exceptions wherein the limitation of liability does not apply. ² One exception is when permission to enter for recreational purposes was "granted for a consideration". This exception prevents the application of § 846 in this case. The BLM charged the Sportsman Racing Association a $10 application service fee, as required by 43 C.F.R. § 2920.2. In addition, the BLM, as one of the conditions of the permit (condition 2) required the Association to pay a minimum rental charge of $10, as mandated by 43 C.F.R. § 2920.4. ³ The Association, in turn, charged Thompson an entry fee of $6. With a rental charge having been made for the use of the land, it is clear that permission to enter the government land was "granted for a consideration", and therefore California Civil Code § 846 does not apply so as to limit the liability of the landowner.

We must therefore examine what duty of care the landowner has under California law without the limitations of § 846.

There is no evidence that there was any hidden peril or inherently dangerous condition existing on the property when the permittee took possession. It is clear that any negligence claimed resulted from the faulty design of the race course or the lack of control of the spectators, after the lessee took possession. There is thus no basis for finding negligence on the part of any federal employee because of failure to warn of a hidden peril or a known hazardous condition on the land. See Epling v. United States, 453 F.2d 327 (9th Cir. 1971) (cable strung across a road on federal land by federal employees) and Phillips v. United States, 590 F.2d 297 (alleged failure to warn of known hazardous conditions near San Antonio Falls in Angeles National Forest).

Generally, it has been an accepted rule of common law that the lessor of land (no matter how long or short the period) is not subject to liability to his lessee, or others upon the land with the consent of the lessee, for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession, with certain defined exceptions. See Second Restatement of Torts, § 355; Prosser, Law of Torts, p. 400 (4th ed.). The recognized exceptions as set forth in Restatement, §§ 357-62 may be summarized as follows:

1. When lessor contracts to repair premises and fails to do so;

2. When there were undisclosed dangerous conditions known to the lessor and unknown to the lessee;

3. When lessor knows the lessee will admit the public and knows or has reason to know of a dangerous condition on the land existing when the lessee takes possession;

4. When parts of the land are retained in the lessor's control, which lessee is entitled to use, or will use by necessity; and

5. When the lessor undertakes to repair the premises and does so negligently.

None of these exceptions applies to the case at hand. Under the general common law...