Opinion
No. 5:03-cv-0908 RS.
October 1, 2004
ORDER DENYING DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
I. INTRODUCTION
Defendant United States of America, through its agency the Bureau of Land Management ("BLM"), filed a motion to dismiss, or for summary judgment, based on its contention that it is not liable to plaintiff Eric Austin Niva ("Niva") for injuries he sustained in a motor vehicle accident on Clear Creek Road because it had no duty or responsibility to maintain such road. The motion was fully briefed and heard by the Court on September 15, 2004. Based on all papers filed to date, as well as on the oral argument of counsel, the Court denies the motion to dismiss or for summary judgment, for the reasons set forth below.
II. BACKGROUND
Niva was involved in a single car accident on April 21, 2001, when his pickup truck veered off Clear Creek Road in San Benito County and rolled down a slope. Although Niva's passenger, Justin Murphy, who was wearing a seat belt, was not injured in the crash, Niva was ejected from the truck and suffered serious injuries which have rendered him a quadriplegic. Niva contends that his pickup truck went off the road because a portion of the roadway had been washed out, creating a dangerous condition. As a result of his injuries, Niva now seeks damages from the BLM on the theory that it failed to maintain adequately Clear Creek Road.
The United States contests the cause(s) of both the accident and Niva's injuries based on its contentions that Niva was traveling at an excessive rate of speed, was under the influence of alcohol and/or drugs, and was not wearing his seatbelt. However, for purposes of this motion only, the United States acknowledges that the Court must assume that in some way the condition of the road was one of the proximate causes of the accident. See United States Memorandum at p. 8, fn. 8.
Clear Creek Road is a county highway that traverses the Clear Creek Management Area ("CCMA"), which is under the jurisdiction of the BLM. San Benito County obtained an easement from the BLM for the Clear Creek Road right-of-way. However, in 1994, the Board of Supervisors of San Benito County initiated the procedure to terminate maintenance on most of Clear Creek Road, due to safety concerns and costs associated with safety precautions, pursuant to California Streets Highways Code § 954.5. Nevertheless, despite the termination of its maintenance responsibilities, the County retained its easement rights in the roadway. As a result of the County's ownership of the easement, the BLM contends that Clear Creek Road remains a county roadway and that, accordingly, it is under no obligation to maintain and/or repair the road. Therefore, BLM requests that the Court dismiss this action, or grant summary judgment in its favor.
In addition, even assuming that it was obligated to maintain the roadway, the BLM argues that application of the discretionary function exception to the Federal Tort Claims Act ("FTCA") bars the Court from exercising jurisdiction in this case. BLM also contends that it is afforded immunity from Niva's claim for damages pursuant to California Civil Code § 846, commonly referred to as the California recreational use immunity statute.
Niva opposes the motion and argues that triable issues of material fact exist regarding all of BLM's contentions. He further argues that, based on the conflicting testimony and evidence submitted, a trial is necessary to determine BLM's liability in this instance.
III. STANDARDS
A. Motion to DismissIn ruling on a motion to dismiss, the court must accept as true all allegations of material fact and must construe those allegations in the light most favorable to the non-moving party.Western Reserve Oil Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir. 1985). Any existing ambiguities must be resolved in favor of the pleading. Walling v. Beverly Enterprises, 476 F.2d 393, 396 (9th Cir. 1973).
A complaint or counterclaim is subject to dismissal as a matter of law for: (1) lack of a cognizable legal theory or (2) insufficient facts stated under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984). In order to grant a motion to dismiss, it must appear to a certainty that a plaintiff would not be entitled to relief under any set of facts which could be proved. Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987).
B. Motion for Summary Judgment
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The purpose of summary judgment "is to isolate and dispose of factually unsupported claims or defenses." Celotex v. Catrett, 477 U.S. 317, 323-324 (1986).
The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. If he meets this burden, the moving party is then entitled to judgment as a matter of law when the non-moving party fails to make a sufficient showing on an essential element of his case with respect to which he bears the burden of proof at trial. Id. at 322-23.
The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party cannot defeat the moving party's properly supported motion for summary judgment simply by alleging some factual dispute between the parties. To preclude the entry of summary judgment, the non-moving party must bring forth material facts, i.e., "facts that might affect the outcome of the suit under the governing law. . . . factual disputes that are irrelevant or unnecessary will not be counted."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588 (1986).
The court must draw all reasonable inferences in favor of the non-moving party, including questions of credibility and of the weight to be accorded particular evidence. Masson v. New Yorker Magazine, Inc., 111 S.Ct. 2419, 2434-35 (1991) (citingAnderson, 477 U.S. at 255); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588 (1986); T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987). It is the court's responsibility "to determine whether the `specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence." T.W. Elec. Service, 809 F.2d at 631. "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. However, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587.
IV. DISCUSSION
A. BLM's Duty to Maintain Clear Creek Road
For purposes of this motion, the parties agree that the County of San Benito possessed an easement for Clear Creek Road and that, pursuant to Calif. St. Hwys Code § 954.5, it abandoned responsibility for maintenance of that road. It is also undisputed that the County did not, however, abandon its right-of-way easement over the road. Accordingly, the BLM argues that Clear Creek Road remains a County road and, therefore, responsibility for the maintenance of the roadway does not revert to the BLM. See e.g., McManus v. Sequoyah Land Associates, 240 Cal.App.2d 348, 356 (1968) (law is "well-settled" that duty to repair easement lies with easement holder rather than with land owner); Herzog v. Grosso, 41 Cal.2d 219, 228 (1953) (owner of a servient tenement has no obligation to repair the easement);Bean v. Stoneman, 104 Cal. 49, 55-56 (1894) (owner of easement must keep it in repair); Cal. Civ. Code § 845(a) (owner of easement shall maintain it in repair).
Niva does not dispute the authorities cited by the BLM but argues that, once the County of San Benito gave notice to BLM that it intended to abandon maintenance of the road, BLM at least tacitly accepted maintenance responsibility. Having voluntarily assumed such duty, Niva contends that the BLM is liable for the injuries he sustained as a result of the BLM's failure to repair the washout of the Clear Creek Road. See BAJI 4.55; 6 Witkin, Summary of California Law, (9th Ed. Torts §§ 868-872). To support his contention, Niva cites to reconstruction, repair, and stabilization projects undertaken by the BLM in 1995, 1997, and 1999, regarding Clear Creek Road. See Slibsager Deposition at 22, 23, 36, 46, 47, 51, 52, 54, 55, 65, and Exhs. 13, 19. Niva notes that these projects were completed with BLM funds and that the County, thereafter, reimbursed BLM for the work. Id. Moreover, he notes that BLM installed gate closures which permitted it to open and close the road, depending on the weather. Id. at 25, 26, and Exh. 19.
Niva also relies on the testimony of Robert Beehler ("Beehler"), the area manager of the CCMA, to support his contention that the BLM maintains Clear Creek Road. Beehler conceded that, when the County abandoned Clear Creek Road, and others, maintenance was assumed by the BLM because "it had to be done." Beehler Depo. at 37. He also acknowledged that he had signed a Memorandum of Understanding ("MOU") between BLM and San Benito County which states that the BLM "desires to assume maintenance responsibilities for county roads in the Clear Creek area." Id. at 45-46 and Exh. 20 to Stein Declaration.
The BLM argues that its assistance to the County in the repair or reconstruction work on Clear Creek Road does not create a duty on its part to maintain Clear Creek Road. Rather, the BLM contends that the evidence supports its position that the County maintained its easement and, therefore, was able to obtain federal funds to repair the road as needed. BLM simply repaired damage at the County's request and was reimbursed for such work from County funds.
The BLM's position ignores, however, the MOU and the testimony of its own employees, Robert Beehler and David Slibsager. Beehler acknowledged that he signed, on behalf of the BLM, an agreement in which the BLM declared its desire to "assume the maintenance responsibilities" for roads in the Clear Creek area. It is undisputed that Clear Creek Road lies within this area. In addition, the testimony presented by BLM employees Beehler and Slibsager, indicates that the BLM performed repair and rehabilitation work to Clear Creek Road between 1995 and 1999. Such testimony, coupled with the language set forth in the MOU, creates a triable issue of fact regarding Niva's contention that the BLM tacitly accepted maintenance responsibility for Clear Creek Road. Although the BLM correctly contends that it was under no statutory obligation to maintain the road, the evidence submitted suggests the possibility that, despite the BLM's arguments to the contrary, the BLM assumed some responsibility for maintaining the road in question "because it had to be done." Accordingly, the BLM is not entitled to summary judgment on the issue of whether it assumed a duty to maintain Clear Creek Road.
Slibsager is the first and only director of the implementation team created by Beehler to perform necessary maintenance work throughout the CCMA.
B. BLM's Entitlement to Application of the Discretionary Function Exception to the FTCA
The BLM argues that, even assuming it had a duty to maintain Clear Creek Road, it made the discretionary decision not to adopt the roadway as a BLM road and, therefore, not to maintain such road, thereby precluding the Court from exercising jurisdiction over any claim that arises from such decision and necessitating the dismissal of this action. Again, however, the BLM's argument ignores relevant and material evidence submitted by Niva which suggests that, contrary to its present position, the BLM undertook the duty to maintain Clear Creek Road. As discussed above, the MOU evidences a decision by the BLM to assume maintenance of the roadways in the Clear Creek area in which Clear Creek Road is located. Further, the testimony of BLM employees Beehler and Slibsager confirm that certain repair and rehabilitation work was performed and that BLM funds, at least initially, were used to complete such work. Accordingly, this evidence establishes a triable issue of fact as to whether the BLM implicitly assumed the duty to maintain Clear Creek Road, thereby precluding the application of the discretionary function exception to Niva's claim.
Moreover, even assuming an absence of evidence to support Niva's contention that the BLM voluntarily assumed the responsibility to maintain Clear Creek Road, it appears that triable issues of material fact remain regarding application of the discretionary function exemption to the decisions made by the BLM. The parties agree that a two-part test exists for determining whether the discretionary function exception bars an FTCA claim. First, the act or decision at issue must have been "discretionary in nature," meaning that it must have involved "an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322 (1991). Second, the act or decision must have been "based on considerations of public policy." Id. at 323.
In this instance, the BLM claims that its motion establishes that it . . . "has the discretion to decide whether to maintain roads such as Clear Creek Road that belong to state or local governments. . . ." United States Reply Memorandum at p. 4, lines 9-10. To the contrary, however, the BLM manual specifically states that BLM funds may not be used to maintain roads not owned or controlled by the BLM. See Section 9113.15 of BLM Manual at Exh. E to Mark St. Angelo Declaration. Accordingly, pursuant to BLM's own policies, it does not appear that BLM has the discretion to decide whether to maintain roads that belong to other entities and, therefore, may not have engaged in any discretionary act or decision by "choosing" not to maintain Clear Creek Road, as required under United States v. Gaubert, 499 U.S. at 322.
For these reasons, the BLM has failed to establish that the discretionary function exception applies as a matter of law in this instance and serves to bar the Court from exercising jurisdiction over Niva's claims. Therefore, the government's motion to dismiss is denied.
C. BLM's Entitlement to Immunity Pursuant to Cal.Civil Code § 846
The BLM also argues that it is entitled to immunity from Niva's claims for damages pursuant to California's recreational use statute, codified at Cal. Civ. Code § 846. Section 846 provides that a landowner owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose, unless the landowner: (1) willfully or maliciously failed to guard against or warn of a dangerous condition; (2) conditioned entry on the receipt of consideration; or, (3) expressly invited the guest to use his premises. This statutory immunity applies to the United States and the BLM is entitled to rely on § 846 as a defense to a suit brought under the FTCA to the same extent that a private individual could do so. Simpson v. United States, 652 F.2d 831, 833 (9th Cir. 1981) (section 846 immunity applies to United States); Mattice v. United States, 969 F.2d 818 (9th Cir. 1992) (same). Morever, § 846 immunity applies not only when a plaintiff is injured while engaged in recreational activity, but at any time the plaintiff enters onto the landowner's premises for the purpose of engaging in recreational activities. Mattice v. United States, 969 F.2d at 821.
As a precondition to immunity, a landowner must satisfy two elements. Ornelas v. Randolph, 4 Cal.4th 1095 (1993). First, the defendant must be the owner of some interest in the real property where the accident occurred. Id. Second, the plaintiff's injury must have resulted from entry upon or use of the premises for a recreational purpose. Id. In this instance, the evidence is undisputed that Niva and his passenger were driving within CCMA and were traveling to a CCMA location to meet friends and participate in off-road motorcycle riding. It is also undisputed that the CCMA is owned by the United States and is under the jurisdiction of the BLM. Therefore, the conditions of immunity under § 846 are satisfied.
However, as noted above, there are three exceptions to the grant of immunity afforded under § 846. One of the exceptions, the payment of consideration, is not applicable to this case since it is undisputed that Niva did not pay a fee to enter the CCMA. The second exception, an express invitation, requires that the landowner specifically invite the guest onto his premises.See Johnson v. Unical Corp., 21 Cal.App.4th 310 (1993);Revell v. United States, 22 F.3d 960 (9th Cir. 1994). Although Niva argues that this exception should apply in instances such as this where the landowner advertises its recreational facilities in brochures and local newspapers, he concedes that current caselaw requires a personal invitation between the landowner and guest which was not extended to him. Id. Therefore, only the third exception, willful or malicious failure to warn of a danger, is arguably applicable to this case.
The BLM argues that the "willful and malicious" exception cannot apply since there is no evidence of a "hidden peril" in this case, nor is there any evidence presented to suggest that the BLM consciously failed to act to avoid a danger. Mattice v. United States, 969 F.2d at 822. 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. Id. Moreover, the Mattice court noted that the cases in which willful misconduct was found all involved a hidden peril. Id.
With respect to the first requirement, Niva contends that the testimony of his father and his sister, Gary and Lisa Niva, respectively, establishes that the BLM had actual or constructive knowledge of the peril. Gary and Lisa Niva state that Ranger Schwartz told them that he knew about the washout and that he had requested that repairs be made to fix the roadway. Schwartz does not recall such conversation. However, for purposes of this motion, the Court must construe the facts in the light most favorable to Niva. Therefore, it assumes for purposes of this motion that Schwartz, a BLM employee, knew that a dangerous condition existed on Clear Creek Road.
Next, Niva must establish that the BLM had actual or constructive knowledge that injury was probable as a result of the dangerous condition. To support this prong, Niva submits photographs of the accident scene which show an approximately four foot washout on the main traveled portion of the roadway through the CCMA. He argues that such washout, which cannot be seen at night when his accident occurred, certainly gives rise to a finding that someone would be seriously injured if the wheel of a vehicle drove into the washout. See Opposition Memorandum at p. 18. Niva also submits the testimony of his expert, Allen Weber, a registered Traffic and Civil Engineer, who opines that the washout to the road created a dangerous condition. See Weber Decl., ¶ 8 at Exh. 11 to Stein Decl. No evidence is submitted by the BLM which refutes or contradicts Weber's conclusion. Accordingly, based on the record presented, triable issues of fact exist as to whether the BLM had actual or constructive knowledge that injury was probable as a result of the washout which existed on Clear Creek Road at the time that Niva was injured.
Finally, Niva must present evidence which raises a triable issue of fact as to whether the BLM consciously failed to act to avoid the danger. Niva has satisfied this burden through the testimony of witnesses Craig and Lisa Niva who, as noted above, testified that Ranger Schwartz told them that he had requested the BLM to repair the roadway. Assuming that a trier of fact believed this testimony, rather than the testimony proffered by Ranger Schwartz that he made no such request, a conclusion could be drawn that the BLM ignored the request to repair the danger. Therefore, issues of material fact exist regarding the question of whether the BLM consciously failed to act to avoid the danger on Clear Creek Road.
In addition to the testimony of his expert and family, Niva relies on an Arizona decision in which the Ninth Circuit concluded that summary judgment could not be granted in favor of the government since triable issues of fact existed as to whether the United States had a duty to warn users of the land that a culvert had been removed and that the road surface, therefore, no longer existed.Miller v. United States of America, 945 F.2d 1464, 1467 (9th Cir. 1991). Miller, like the instant case, involved a situation in which the federal government owned land in the Prescott National Forest, but the local County held an easement in the right-of-way for a particular road located within the forest. The County had abandoned its maintenance responsibilities for the roadway, but had not abandoned its easement. Accordingly, when a tourist was injured due to a fall on the roadway, the United States argued that it was not responsible for maintenance of the roadway and, therefore, had no duty to warn tourists of the existence of any hazardous conditions. The Ninth Circuit disagreed with the government and held that the evidence established that the United States had exercised at least some control over the roadway by removing the culvert and by generally patrolling the area. The degree of control exercised by the federal government was, therefore, deemed to create a triable issue of fact which precluded the entry of summary judgment in favor of the United States.
The United States argues that the Miller decision is inapplicable to this case for two reasons. First, the government notes that the Miller decision involved an Arizona statute which, under the laws of that state, had to be "strictly construed." Miller v. United States, 945 F.2d at 1467. In contrast, the United States points out that the immunity provided by § 846 is construed broadly. See Shipman v. Boething Treeland Farms, Inc., 77 Cal.App.4th 1424, 1427 (2000) (protection afforded landowners under § 846 extremely broad). In fact, as the United States correctly states, under California law, it is the exceptions to § 846 immunity which must be strictly construed. See Johnson v. Unocal Corp., 21 Cal.App.4th 310 (1993). Second, the government contends that theMiller decision is factually inapposite on a number of grounds, including issues of causation and knowledge which it asserts are not at issue in Niva's case.
Contrary to the arguments advanced by the United States, however, it appears that the Miller case is very similar to this action. First, the recreational use immunity statute reviewed by the Circuit in that case is almost identical to the present statute at issue herein. Second, based on the evidence recited above, triable issues of fact exist regarding whether or not the BLM may be held responsible for the washout to Clear Creek Road due to its failure to maintain properly and/or repair the roadway, if it assumed responsibility to do so. In the event that a trier of fact concluded that the BLM implicitly accepted responsibility for maintaining Clear Creek Road, then the BLM may have also had a duty to warn tourists of the washout and/or to repair immediately the washout once it became aware of such condition.
Nonetheless, the government argues that it is entitled to immunity under § 846 based on its contention that the Ninth Circuit has found exceptions to the recreational use immunity provided by § 846, based on willful or malicious failure to guard or warn, only in cases involving a "hidden peril," and that no such peril exists in this case. This argument is unpersuasive. Although as the government correctly notes, the cases in which the Ninth Circuit found willful misconduct all involved a hidden peril, Mattice v. United States, 969 F.2d at 822, no such requirement that a peril be "hidden" exists in the statute.
Moreover, even assuming that an inference might be drawn that caselaw imposes such a requirement, this case appears to present a question of fact regarding the existence of a hidden peril. While the photographs presented by Niva clearly depict a washout in the road, Niva argues that such washout was not visible at night, when his accident occurred. The BLM does not dispute this contention. Rather, it simply concludes that ". . . . a dip in the shoulder of a road cannot be said to be a `hidden peril.'" Memorandum at p. 18, lines 9-10. The BLM's conclusion is at odds with at least one case cited by Niva, however, in which the Ninth Circuit discussed the creation of a peril which was deemed "hidden" because it could not be seen in the dark. See e.g., Rost v. United States, 803 F.2d 448, 451 (9th Cir. 1986) (finding of willful misconduct where United States knew crossbar from closure gate was out of shape and formed into a lance which could not be seen in the dark). As a result, Niva has established that triable issues of material fact exist regarding the "willful and malicious" exception to § 846 immunity in this case. Therefore, the United States is not entitled to summary judgment based on that statutory immunity.
V. CONCLUSION
For the reasons stated, the Court denies the United States' motion to dismiss or for summary judgment. Trial shall proceed as previously scheduled on December 13, 2004. A final pre-trial conference shall be held on December 1, 2004 at 1:30 p.m.