HANNON v. UNITED STATES
801 F.Supp. 323 (E.D.Cal. 1992)
United States District Court for the Eastern District of California
April 2, 1992In this case, plaintiff Marc Hannon brought an action against the defendant United States under the Federal Tort Claims Act ("FTCA" 28 U.S.C. Sections 1346(b) and 2671-2680) "for personal injuries sustained when he fell into scalding Water in the Hot Creek Geothermal Area of the Inyo National Forest while attempting to rescue his dog." The facts of the case were as follows:
On the morning of May 7, 1989, Hannon , his brother Michael and his two dogs visited the Hot Creek Area. Hannon , a twenty-two year old adult, had been living in the Mammoth Ranger District, which contains the Hot Creek Area, for almost five years. In May of 1989, Hannon lived approximately ten miles from the Hot Creek Area and had visited before. Hannon knew prior to his visit in May that extremely hot waters were present in the area. During these previous visits, Hannon had seen signs warning visitors of dangers in the area.
After parking his car in the designated parking area, Hannon , his dogs, and his brother took a paved path to steps which led to a fenced area around hot pools. The path leads to a natural creek next to fenced areas of hot pools. The Forest Service conducts regular evaluations of the area to make sure fences are maintained properly, and to evaluate the need for additional fencing and signs.
The fence at issue in this case was at the top of a steep incline, approximately 15-20 feet above the hot pools. This fence continued down a slope parallel to the hot pools, and extended to the cool part of the stream. At the time of construction, the fence met the water's edge but the volume of the creek fluctuates on a daily basis. In April of 1989, one month before the accident, the stream met with the fence.
Upon arrival near the fenced area, Hannon and his brother stopped to talk to Leslie Sepp Mann, another visitor to the park. During this conversation, one of Hannon 's dogs went around the fence to the cool part of the creek. Hannon 's brother saw the dog stray around the fence and called him to come back but the dog continued into the fenced area.
Hannon then heard the dog's cries and jumped over the fence and hiked down the steep incline to attempt a rescue of the dog. Before going over the fence, Hannon saw steam coming out of the hot pools and knew that the water was scalding. Hannon could not rescue the dog, and instead the dog pulled him into the scalding water.
On the day of the accident, both Hannon and his brother saw a sign titled "Dangers of Hot Creek" before Hannon entered the waters of the hot pools. This sign was located along the paved path leading from the parking lot to the fenced area above the hot pools. Hannon admits seeing warning signs in the Hot Creek Area during his previous trips, prohibiting glass bottles and generally warning of dangers from the water.
Three other signs were present in the area. A sign on the wall of the building near the parking lot where Hannon parked on May 7, 1989 warned persons entering the Hot Creek Area of it dangers. Another sign along the path warned "Dogs on Leash No Nude Bathing No Soap No Shampoo No Bottles No Glass." A fourth sign along the path warned "DANGEROUS AREA Scalding Water Unpredictable Eruptions Unstable Ground Sporadic High Pollution Sudden Temperature Changes Broken Glass Arsenic in Water"
On May 7, 1989, signs were also posted at 15 to 30 foot intervals along portions of the fence warning "DANGER SCALDING WATER KEEP OUT." One of these signs was posted below the steps Hannon took to the hot pools on the day of the accident. Hannon did not pay to enter either the National Forest or the Hot Creek Area on May 7, 1989.
Based upon these undisputed facts, the United States filed a motion for summary judgment claiming "recreational use immunity under California Civil Code § 846."
As noted by the federal district court, the Federal Tort Claims Act (FTCA) "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." Accordingly, the court found that "Hannon must establish that the United States would be liable to Hannon under the law of California." Under California law, the court acknowledged that "a land owner generally owes no duty of care to persons who use the property for recreational purposes" pursuant to the state recreational use statute, California Civil Code § 846. As described by the court, the state recreational use statute provided, in pertinent part, as follows:
An owner of any estate or of any other interest in real property, whether possessory or nonpossesory, 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. Civ.Code § 846 (1982)
Section 846 attaches duty of care only when 1) a land owner acts willfully or maliciously or; 2) the land owner receives compensation for use of the property or; 3) the land owner invites, rather than permits, plaintiff's entry.
Hannon maintained that "recreational use immunity does not apply to defendant due to its public entity status." In support of this argument, Hannon cited several recent California decisions that have limited § 846 to cases of private landownership. The federal district court rejected this argument.
The specific language of the FTCA, however, makes the United States liable for negligence in the same manner and to the same extent as a private individual under the applicable state law... Since California Civil Code Section 846 doubtless applies to private persons, it must, therefore, apply in the same way to the United States.
Despite the fact that the United States was determined to be a land owner under the state recreational use statute, Hannon contended that the "consideration exception" to recreational use immunity apply in this case because "the United States received compensation for use of the property." As described by the court, the consideration exception to Section 846 provided as follows:
This section does not limit liability which otherwise exists for injury suffered in any case where permission to enter for the above purpose was granted for consideration or where consideration has been received from others for the same purpose.
Hannon maintained that the United States had failed to prove "that no recreational user of the area had ever paid consideration for such recreational use." Specifically, Hannon argued that "the payment of fees by others for entry into campgrounds elsewhere within the Inyo National Forest brings the entire Forest, including the Hot Creek Area, under the consideration exception to § 846." The federal district court rejected this argument.
It is unnecessary to decide whether any payment for recreational use at any time by anyone bars all use immunity. Even under Hannon 's reading of the statute, the exception does not apply. Officer Clausen, who has been employed by the Forest Service since 1978 testified "we've never charged admission" to the Hot Creek Area. Hannon offers no evidence that defendant has ever accepted consideration for entrance to the Hot Creek Area, and has no admissible evidence to counter the sworn testimony of Officer Clausen.
Hannon offers no cases in support of such a broad reading of the § 846(b) consideration exception... [T]he accident did not occur on a campsite... [N]o evidence, such as signs directing campers or a clear trail, suggested a connection between the area of injury and a campsite... It is undisputed that the Hot Creek Area is not a campsite. Hannon has offered no evidence of a connection between the Hot Creek Area and any campsite.
The federal district court further rejected Hannon's contention that "the California legislature could not have intended that a landowner should be able to shield an entire parcel of land from liability because a small part is used for recreation while consideration must be paid for use of the rest."
This case, in fact, presents the opposite scenario: Hannon seeks to hold the United States liable for any uses of any part of the Inyo National Forest when consideration is accepted for the use of some other small portion of the land. Hannon admits paying no consideration for entrance to the National Forest, parking near the Hot Creek Area, or entrance into the Hot Creek Area where he ultimately suffered injury. The fact that somewhere else in the Inyo National Forest someone other than the Hannon is charged for services does not negate the immunity defense throughout the Forest.
The federal district court also addressed Hannon's contention that "defendant deserves no recreational use immunity because it acted 'willfully or maliciously'." As noted by the court, the state recreational use statute would not provide landowner immunity for willful or malicious misconduct which it defined as follows:
Under Section 846, the landowner's duty to the non-paying, uninvited recreational user is, in essence, no greater than that owed a trespasser under the common law... The recreational trespasser on private land assumes the risk of injury, absent willful or malicious misconduct by the landowner. Cal. Civ. Code § 846.
Under California law, the concept of willful misconduct has a well-established, well-defined meaning. "Willful or wanton misconduct is intentional wrongful misconduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results."
Willful and malicious conduct is different from negligence... [T]he three elements essential to a finding of willful misconduct: 1) actual or constructive knowledge of the peril to be apprehended; 2) actual or constructive knowledge that injury is a probable as opposed to a possible, result of the danger, and 3) conscious failure to act to avoid the peril.
"Willful or wanton misconduct" travels under several other names. Its aliases include "serious and willful misconduct," 'wanton misconduct,' 'reckless disregard,' 'recklessness,' and combinations of some or all of these. These terms are interchangeable because all identify the same thing - 'an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care.'"
While Hannon did not dispute the presence of warnings, he based his allegations of willful or malicious misconduct on the following points: 1) defendant's knowledge of a potential gap between the fence and the water; 2) the fact that many people went into the water at cooler areas; 3) defendant's consideration and rejection of closing the area or increasing patrols.
The issue before the court was, therefore, "whether defendant's alleged failure to act rose to the level of willful or malicious conduct." In the opinion of the court, Hannon's allegations, even if proven at trial, failed to establish willful or malicious conduct on the part of the United States.
[Willful or malicious conduct] is determined by showing a conscious failure to act. Hannon has not submitted evidence that creates a material issue of fact that defendants failed to act to warn the public of danger.
[T]he posted signs warned of danger... In addition, undisputed evidence in this case indicates that defendant patrolled the area for noncompliance with park rules... Hannon argues that defendant's consideration of increasing staff or closing the area proves a willful and malicious failure to act. The fact that defendants knew of possible dangers but did not take absolutely all possible measures to protect the public does not mean defendant acted willfully and maliciously.
Finally, the federal district court found that the "express invitation" exception to immunity under the state recreational use statute was not applicable because Hannon did not receive an express invitation within the meaning of § 846(a).
Hannon in this case did not receive an express invitation within the meaning of § 846(a)... [Therefore, Hannon can not] pursue a claim that an invitation to the general public could constitute an express invitation within the meaning of the § 846 exception... [T]he combination of public facilities and publicity given the Hot Creek by the government and by private parties taken collectively or individually did not constitute an express invitation within the meaning of California Civil Code § 846... [P]rovision of public facilities, distribution of Forest Service literature, and various signs do not render Hannon expressly invited rather than merely permitted to enter defendant's premises on the date of the accident within the meaning of Cal.Civ.Code § 846(c). Hannon offers no evidence of any invitation.
Having found the state recreational use statute applicable to the circumstances of this case, the federal district court granted summary judgment in favor of the defendant United States.
Hannon concedes that he entered the forest for recreational purposes, but seeks to prove that defendants willfully or maliciously failed to warn him of the dangers of scalding water. Hannon also claims exemption from § 846 for invitees and those paying consideration.
Hannon presents no admissible evidence to counter defendants' evidence of extensive efforts to fence off dangerous areas and warn the public. Defendant need not constantly patrol the area to avoid a claim of willful and malicious failure to act. In answers to interrogatories, moreover, Hannon admits seeing warning signs. Hannon also admits seeing signs warning of the dangers of hot water on previous visits to the Hot Creek Area. Finally, Hannon admits realizing that the pools contained scalding water immediately prior to his efforts to save his dog.
Promotional literature and signs did not constitute express invitation within the meaning of § 846(a). Defendant offers sworn testimony that no consideration has ever been charged and Hannon offers no evidence in rebuttal. Finally, Hannon admits not paying any consideration for any activities on the day of the accident. Payments by others on a separate campground do not allow Hannon to claim an exception to immunity under § 846(b).