Colin v. United States

56 F. App'x 831

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 3, 2003
• Docket: No. 01-17107; D.C. No. CV-99-05045-EDL
• Status: Published

Opinion

MEMORANDUM

*

Plaintiff Aroldo Colin appeals the district court’s order granting summary judg-merit and order denying reconsideration of its summary judgment in favor of the United States in Colin’s action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1). Colin seeks damages for a spinal cord injury suffered on government land when the branch of a dead tree he was climbing in 1997 collapsed, causing him to fall into shallow water. Cohn alleges that the United States, through its agent the Army Corps of Engineers, is liable for its failure to prune the trees and post warnings against climbing on dead trees at the Lake Sonoma, Yorty Creek Recreation Area.

The district court did not err in holding that there had been no showing of government willful misconduct as required under California Civil Code § 846. The evidence showed negligence at best.

The district court was also correct as a matter of law in holding that the negligence standard did not apply under the “consideration” exception in the statute. The language of the statute shows the legislative intent to limit liability under the section to the uses or areas for which consideration is given. All reported decisions agree. See Casas v. United States, 19 F.Supp.2d 1104, 1108 (C.D.Cal.1998); Hannon v. United States, 801 F.Supp. 323, 327 (E.D.Cal.1992); Judd v. United States, 650 F.Supp. 1503, 1512 (S.D.Cal.1987). The use fees collected at this recreation area were for boat launches and overnight use of the campgrounds. No fees were charged for swimming, picnicking, or any of the uses in which the plaintiff was engaged.

The California Resort Act, establishing certain requirements for owners of resorts on rivers and streams, did not apply here because the accident occurred on an artificially created lake, not a river or stream.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.