Daraxa Lee Mattice, by and Through Her Guardians Ad Litem, Gregory G. Mattice and June Mattice v. United States of America, Department of the Interior

969 F.2d 818, 92 Daily Journal DAR 9821, 92 Cal. Daily Op. Serv. 6185, 1992 U.S. App. LEXIS 15698, 1992 WL 159979

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 14, 1992
• Docket: 90-16217
• Status: Published

Opinions

SKOPIL, Circuit Judge:

Daraxa Mattice, by and through her guardians ad litem, appeals from summary judgment, 752 F.Supp. 905, and dismissal of her action against the United States under the Federal Tort Claims Act. 28 U.S.C. § 1346(b) (1988). She seeks damages for personal injuries sustained when she drove off a national park road and dropped 350 feet to the beach below. We hold that summary judgment was' proper because the United States was protected by California’s recreational use statute.

BACKGROUND

On December 13, 1987, 14 year old Mat-tice was congregating with friends at the Crescent Beach picnic area in the Redwood National Park. Around three o’clock in the morning, the group began to break up. One of the boys had been drinking, and Mattice offered to drive him home in his vehicle. The boy agreed, but they decided to take a test drive to make sure Mattice could drive the vehicle. From the picnic area, Mattice turned right on Enderts Beach Road and drove up from the beach toward an overlook. At a curve, Mattice drove off the road, through the wooden guardrail and suffered serious injuries.

Enderts Beach Road is a paved, two-lane secondary access road that is the main road in the park. From Highway 101, it leads into the park and eventually comes to a deadend at a trailhead just past the Crescent Beach Overlook. At the base of the hill leading to the overlook, a sign portrays a winding road and advises a speed of 15 miles per hour. Another 50 feet up is a sign indicating multiple curves ahead. From there the road curves several times before reaching the overlook. A redwood guardrail with reflectors begins just before the overlook parking area where the road curves to the left. A temporary center line stops at the overlook parking area. Mat-tice crashed into the guardrail just past the overlook parking area.

The park service installed the guardrail in 1977 to prevent people from shoving vehicles over the cliff and to delineate a path for pedestrians. Redwood guardrails are consistent with park policy of using native materials to maintain a natural environment in the park. In the ten years preceding the accident, nine accidents occurred on Enderts Beach Road, but none occurred near the Crescent Beach Overlook. On several occasions, however, park employees noticed damage to the guardrail that appeared to have been caused by vehicle impact. Before the accident, park employees had recommended that the road be painted with shoulder stripes and permanent center stripes, but nothing had been done.

Mattice brought this action, alleging that the government was negligent and/or willful in using wooden guardrails and in failing to warn adequately of the danger of the winding road. The district court held that the government was protected by discretionary immunity and dismissed the action. See 28 U.S.C. § 2680(a) (1988). Alternatively, it granted summary judgment because the government was shielded by California’s recreational use statute. See Cal.Civil Code § 846 (West 1992). We do not consider whether discretionary immunity is a bar because we hold that the court properly granted summary judgment on the basis of the recreational use statute.

STANDARD OF REVIEW

Our review from a summary judgment is de novo. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339 (9th Cir.1989). We must view the evidence in the light most favorable to the non-moving party to determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Id. at 1339-40. ■

DISCUSSION

A party may bring an action against the United States only to the extent that the government has waived its sovereign immunity. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976). The United States has waived its sovereign immunity in cases like the present one only to the extent that a private person would be liable under like circumstances. 28 U.S.C. §§ 1346(b), 2674 (1988). Our inquiry here, therefore, is limited to whether a private person would be liable for Mattice’s injuries under California law. See McMurray v. United States, 918 F.2d 834, 836 (9th Cir.1990).

California has a recreational use statute that protects landowners and other interest-holders (landowners) from liability for negligence to those who enter or use their land for recreational purposes. It provides in part:

An owner of any estate or any other interest in real property, whether posses-sory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.

Cal.Civil Code § 846. Mattice contends that the recreational use statute does not apply because (1) she was not engaged in a recreational activity; (2) the accident occurred on a paved, public road; and (3) the government’s conduct was willful. We address each in turn.

1. Recreational Purpose

Mattice argues that she was not engaging in a recreational activity at the time of the accident, but was taking a test drive in preparation for heading home. Section 846 does not require that a plaintiff be engaged in a recreational activity at the time of the accident. The plain language states that a landowner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose.” (Emphasis added). Thus, the statute applies to injuries sustained while a plaintiff travels within the property as long as the plaintiffs purpose in entering the property was recreational. See Smith v. Scrap Disposal Corp., 158 Cal.Rptr. 134, 136, 96 Cal.App.3d 525 (1979) (question of fact why the plaintiff entered the property). Any other interpretation would be inconsistent with the legislative intent of encouraging landowners to open their property to the public for recreation. See Hubbard v. Brown, 266 Cal.Rptr. 491, 492-93, 50 Cal.3d. 189 (1990). A landowner whose recreational lure lay any distance from the property boundaries would receive little protection from a statute that protected them only once people reached the recreational spot and began the recreational activity.

Mattice entered the park for a recreational purpose. Section 846 broadly defines “recreational purpose” to include “picnicking,” and “viewing or enjoying ... scenic, natural, or scientific sites.” Cal.Civil Code § 846. Mattice came to the park to congregate with friends at a picnic area. That activity clearly falls within the scope of the statute.

2. Paved, Public Road

Mattice argues that the statute does not apply to paved and public federal roads. There is no question that the statute applies to public federal roads on recreational land. We recently applied section 846 to a Forest Service road in the Angeles National Forest, Termini v. United States, 963 F.2d 1264, 1265-66 (9th Cir.1992), and the California Supreme Court recently applied it to a Forest Service road in the El Dorado National Forest, Hubbard, 266 Cal.Rptr. at 492. See also O’Neal v. United States, 814 F.2d 1285 (9th Cir.1987) (applying Oregon recreational use statute to a logging road on Bureau of Land Management land).

The rule is no different here because the road is paved. The statute does not make an exception for paved roads or, more generally, improved property. To the contrary, the California Supreme Court has stated that the statute is not limited to land in its natural state&emdash;“it obviously encom- passes improved streets.” Delta Farms Reclamation Dist. No. 2028 v. Superior Court, 190 Cal.Rptr. 494, 499, 660 P.2d 1168, 1173, 33 Cal.3d 699, cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983) (holding section 846 inapplicable to state and local public entities because a more specific California provision address- es public liability).

We addresseda similar argument in Palmer v. United States, 945 F.2d 1134, 1137 (9th Cir.1991). There the plaintiff contended that the landowner, the United States, voluntarily assumed a duty of care by maintaining a swimming pool and pro- viding lifeguards. We responded that nothing in Hawaii’s recreational use stat- ute indicated that it only applied to land- to landowners who failed to take any safety measures. Id. Indeed we recognized that such a rule would serve only to discourage safety improvements. Id. at 1138. The same rationale applies to the California statute; the landowner here should not be penalized for taking the precaution of paving a park road.

Mattice argues that applying the statute to paved, public roads leads to absurd results. She relies for support on Seyler v. United States, 832 F.2d 120 (9th Cir.1987). There the plaintiff was injured while riding his motorcycle for recreation on a federal highway. Idaho’s recreational statute expressly included roads within its scope, and the government argued that the statute applied to any road or highway in Idaho. Id. at 122. We held that it would be absurd to apply the statute to an ordinary highway. Id. An ordinary highway is not a recreational area, and the intent of the statute would be ill-served by applying it to one. Id.

The California statute is not that far-reaching, on its face or as applied here. Section 846 applies only to- “premises.” “[T]he word ‘premises’ means a tract of land suitable for recreation.” Mansion v. United States, 945 F.2d 1115, 1118 (9th Cir.1991). California courts have refused to apply the statute to areas where entry for recreation should not be encouraged. See, e.g., Domingue v. Presley of Southern California, 243 Cal.Rptr. 312, 316, 318, 197 Cal.App.3d. 1060 (1988) (statute inapplicable to construction site). Here, the “premises” is a national park, a tract of land ideally suited for recreation. Application of the statute in this situation is not absurd because it will encourage the government to keep park land open for recreational use. See Jones v. United States, 693 F.2d 1299, 1302 (9th Cir.1982). As the California Supreme Court stated, “Although [the road] is publicly owned and evidently already open to the public for recreational purposes, it does not follow that application of section 846 would fail to serve a legislative purpose.” Hubbard, 266 Cal.Rptr. at 495. The government is protected from liability for negligence by the recreational use statute.

Mattice argues for the first time on appeal that the application of section 846 in this context violates the equal protection clause because it treats recreational motorists differently than nonrecreational motorists. We have discretion to consider this argument although it was not raised below. See Abex Corp. v. Ski’s Enterprises, Inc., 748 F.2d 513, 516 (9th Cir.1984). A similar argument was made in Simpson v. United States, 652 F.2d 831, 833 (9th Cir.1981). We held that section 846 bears a rational relationship to a legitimate state interest: the opening of property to the public for recreational use. Id. That same reasoning applies here.

3. Willful or Malicious Failure to Warn or Guard against Danger

Section 846 does not provide immunity “for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.” Cal.Civil Code § 846. To establish willful misconduct under California law, a plaintiff must show that the defendant: (1) had actual or constructive knowledge of the peril; (2) had actual or constructive knowledge that injury was probable, as opposed to possible; and (3) consciously failed to act to avoid the danger. Termini, at 1267. The district court determined that Mattice failed to offer any evidence of willfulness.

Mattice argues that the first and second elements are established by the admission of the government that the risk was obvious. That evidence, however, is a double-edged sword. The United States asserts that the risk was inherent in mountainous driving and would be obvious to anyone. It argues that park employees had no reason to think that drivers would not take the geographic conditions into account when driving the winding road.

The argument by the United States is persuasive. The cases in which we have upheld a claim of willful misconduct under California law have' all involved a hidden peril. For example, in Termini the Forest Service built a road that ended at a cliff. At 1265. The road followed a steady incline, and drivers could not see the road’s abrupt end until reaching a crest forty feet from the precipice. We carefully distinguished between the inherent danger of the canyon roads and the hidden danger of that particular spur. Id. at 1268. “The likelihood of an individual actually driving over the cliff speaks to the probability of injury because of the cliff’s unmarked presence, not to the inherently dangerous nature of the cliff in the first instance.” Id. at 1267. See also Rost v. United States, 803 F.2d 448, 451 (9th Cir.1986) (gate post that impaled vehicle passenger was camouflaged); Simpson, 652 F.2d at 834 (plaintiff not warned that bank might collapse and plunge visitor into scalding water).

Mattice argues that the nine accidents in ten years on Enderts Beach Road showed that park employees knew that a danger existed. We disagree. In Spires v. United States, 805 F.2d 832 (9th Cir.1986), the plaintiff fell into a ditch caused by flow from the storm sewer. We held that the plaintiff did not establish that the government had actual or constructive knowledge of the ditch. Id. at 834. It was insufficient to show that the government employees knew that occasional ditches occur. Id. Similarly here, the nine accidents on En-derts Beach Road do not establish that the government should have known that the curve by the overlook was dangerous. None of the accidents occurred near the overlook. Moreover, Mattice has not shown any pattern at all from the accidents other than that they were on Enderts Beach Road. One of the accidents occurred where the road was level, one occurred because of poor brakes, two involved drinking, one involved a distracted driver, and four involved vehicles travelling at excess speeds. Apparently, none of the accidents involved vehicles breaking through the guardrail or resulted in serious injury.

Mattice also relies on evidence that the guardrail where the accident occurred had been hit before. A park employee testified that on several occasions he noticed damage to the guardrail that appeared to have been caused by a vehicle. None of the vehicles went through the guardrail, however, and there is no evidence that anyone was injured. Mattice’s evidence does not establish a question of fact whether the government knew the curve was dangerous and probably would cause injury.

Mattice has not offered evidence to establish that the government consciously failed to act to avoid the danger either. The undisputed evidence is that the government placed a sign at the base of the hill warning that the road is winding and advising a speed of 15 miles per hour. Another sign 50 feet farther up indicated multiple curves ahead. Additionally, the guardrail had some reflectors on it. Mattice argues that the government failed to install steel guardrails, additional reflectors, a sign right before the curve and a permanent shoulder and center line. The government’s failure to do those things, at most, would constitute negligence. The trial court properly granted summary judgment.

AFFIRMED.