H.S. v. United States

H.S., a minor, by and through his mother and natural guardian, SAMANTHA PARDE, Plaintiff, v. UNITED STATES OF AMERICA, and DOES 1 through 10, inclusive, Defendants.

Case No.: 3:17-cv-02418-BTM-KSC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

August 13, 2019

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

[ECF Nos. 44, 45]

Before the Court are cross motions for summary judgment filed by Plaintiff and Defendant United States. (ECF Nos. 44, 45.) Plaintiff filed an ex parte request for oral argument on its motion for summary judgment, which the Court granted. (ECF Nos. 46, 47.) On July 11, 2019, the Court heard oral argument on their motions. For the reasons discussed below, the Court denies both motions. (ECF Nos. 44, 45).

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BACKGROUND

Staff Sergeant Brian Shears ("SSG Shears") resides in Arizona but is a member of the California National Guard. (ECF No. 45-2, at 2-3.) As part of his duties, SSG Shears attends training drills one weekend per month at the Kearny Mesa Armory (the "Armory") in San Diego, California.¹ (ECF No. 44-2, at 5.) During his November 2015 weekend training drill, a senior non-commissioned officer told SSG Shears to bring his family to the December 2015 weekend training drill because there would be a presentation regarding changes to military benefits that could affect them. (ECF No. 44-2, at 11-17.) SSG Shears also received two newsletters, dated October 26 and November 24, 2015 (collectively, the "Newsletters"), wherein his commander, Captain Larry Rankin, stated that "[t]he Family Readiness Group is planning to have an informational briefing during DEC IDT. This will be a time to invite your family members to join us for a few hours, as much of the information presented will be pertinent to updating Family Care plans, and access to available resources for your loved ones." (ECF No. 45-2, at 9-12, 23-26, 28-31.)

SSG Shears and his family, including his five-year-old son, the Plaintiff H.S., arrived at the Armory at midmorning on Sunday, December 6, 2015. (ECF No. 44-2, at 20, 22; ECF No. 45-2, at 14.) In addition to setting up booths for representatives from various benefits providers to present on behalf of the Family Readiness Group, the command team organized a holiday party for the service members and their families who attended. (ECF No. 44-3, at 3-4, 36-37.) Various entertainment and leisure activities were provided for the attendees' enjoyment,including a holiday meal, movie projectors, a video game console, and an inflatable play house castle with trampoline and slide (the "Bounce House"). (ECF No. 44-3, at 29-30, 40-47; ECF No. 45-2, at 42; see also ECF 45-4, at 13-15 (photographs of the Bounce House).) The Bounce House was erected on the concrete floor of the Armory's interior,² with padded wrestling mats placed on the ground at the Bounce House's entrance and slide terminus. (ECF No. 44-3, at 11, 15-18, 23-24, 27-28.).)

While waiting for the day's scheduled events to begin, SSG Shears' children became restless and requested to play on the Bounce House. (ECF No. 44-2, at 22-23.) SSG Shears obliged and supervised his children while they interacted with the Bounce House. (ECF No. 44-2, at 24-25.) Another child jumped behind H.S. as he climbed to the top of the Bounce House's slide, which caused the Bounce House to shake. H.S. was ejected from the top of the Bounce House. (ECF No. 44-2, at 25-27, 53-56.) H.S. fell approximately eight feet and landed head-first on the concrete floor. (Id.) H.S. was immediately taken to the hospital for emergency medical treatment and surgery. H.S. suffered substantial injuries. (ECF No. 44-3, at 50; ECF No. 45-2, at 36-38.)

H.S. by guardian initiated this action on December 1, 2017, alleging a premises liability cause of action against the United States. (ECF No. 1.)

STANDARD

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v.Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248-50.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to establish an essential element of the nonmoving party's case on which the nonmoving party bears the burden of proving at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to demonstrate that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 314. The nonmoving party cannot oppose a properly supported summary judgment motion by "rest[ing] on mere allegations or denials of his pleadings." Anderson, 477 U.S. at 256. Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by 'the depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting FED. R. CIV. P. 56(e)).

The court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions,not those of a judge, [when] he [or she] is ruling on a motion for summary judgment. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor." Anderson, 477 U.S. at 255.

DISCUSSION

In its motion for summary judgment, the United States argues it is entitled to summary judgment pursuant to California Civil Code § 846 (the "Recreational Use" statute). (See ECF No. 44-1.) In his motion for summary judgment, Plaintiff argues he is entitled to summary judgment on a handful of the United States' purported defenses, namely the Recreational Use statute, the Feres doctrine, as well as the "Due Care" and "Discretionary Function" exceptions to the Federal Tort Claims Act ("FTCA"). (See ECF No. 45-1.)

A. The FTCA and the Recreational Use Exception

"The [FTCA] operates as a limited waiver of [the United States'] sovereign immunity from suits for negligent or wrongful acts of government employees which constitute 'ordinary common-law torts.'" Gonzalez v. United States, 814 F.3d 1022, 1026-27 (9th Cir. 2016) (citing United States v. Gaubert, 499 U.S. 315, 318 n. 4 (1991); and Dalehite v. United States, 346 U.S. 15, 28 (1953)). Nevertheless, the United States is only liable under the FTCA "if a private person[ ] would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); Ravell v. United States, 22 F.3d 960, 961 (9th Cir. 1994); see also 28 U.S.C. §§ 2674-80.

"Under California law, private landowners are afforded a substantial measure of immunity from liability for injuries incurred by those entering or using their land for recreational purposes."³ Ravell, 22 F.3d at 961 (internal quotations andcitations omitted). That "immunity" is granted in part by the Recreational Use statute's general nullification of the common law duty of care owed by those with interests in real property to persons using such property for recreational purposes.⁴ Cal Civ. Code § 846(a) provides that, "[a]n owner of any estate or any other interest in real property, whether possessory 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 those premises to persons entering for a recreational purpose, except as provided in this section." In Klein v. United States, 50 Cal. 4th 68, 78 (2010), the California Supreme Court observed that, "[b]y the plain meaning of the language in its first paragraph, Civil Code section 846 absolves California landowners of two separate and distinct duties: the duty to keep the premises safe for recreational users, and the duty to warn such users of hazardous conditions, uses of, structures, or activities on the premises." (internal quotations and citations omitted).

By its very terms, the Recreational Use statute has two preconditions to application, namely "(1) the defendant must be the owner of an estate or any other interest in real property, whether possessory or nonpossessory; and (2) the plaintiff's injury must result from the entry or use of the premises for anyrecreational purpose." Ornelas v. Randolph, 4 Cal. 4th 1095, 1100 (1993) (internal quotation marks omitted) (citing Cal. Civ. Code § 846(a)). There are three statutory exceptions to the limitations on liability provided by the Recreational Use statute, namely where the landowner: (1) "[w]illful[ly] or malicious[ly] fail[s] to guard or warn against a dangerous condition, use, structure or activity"; (2) gives permission to enter the premises for recreational purposes for consideration;⁵ or (3) "expressly invite[s] rather than merely permit[s a person] to come upon the...