# Shears v. United States of America

> District Court, S.D. California · August 13, 2019

URL: https://www.frixlaw.com/law-library/cases/10079333

## Case

- **Court:** District Court, S.D. California
- **Decided:** August 13, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
11
12 Case No.: 3:17-cv-02418-BTM-KSC
H.S., a minor, by and through his
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mother and natural guardian, ORDER DENYING PLAINTIFF’S
14 SAMANTHA PARDE, MOTION FOR SUMMARY
Plaintiff, JUDGMENT AND DENYING
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DEFENDANT’S MOTION FOR
16 v. SUMMARY JUDGMENT

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UNITED STATES OF AMERICA, [ECF Nos. 44, 45]
18 and DOES 1 through
10, inclusive,
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Defendants.
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22 Before the Court are cross motions for summary judgment filed by Plaintiff
23 and Defendant United States. (ECF Nos. 44, 45.) Plaintiff filed an ex parte request
24 for oral argument on its motion for summary judgment, which the Court granted.
25 (ECF Nos. 46, 47.) On July 11, 2019, the Court heard oral argument on their
26 motions. For the reasons discussed below, the Court denies both motions. (ECF
27 Nos. 44, 45).
28 //
1 BACKGROUND
2 Staff Sergeant Brian Shears (“SSG Shears”) resides in Arizona but is a
3 member of the California National Guard. (ECF No. 45-2, at 2-3.) As part of his
4 duties, SSG Shears attends training drills one weekend per month at the Kearny
5 Mesa Armory (the “Armory”) in San Diego, California.1 (ECF No. 44-2, at 5.)
6 During his November 2015 weekend training drill, a senior non-commissioned
7 officer told SSG Shears to bring his family to the December 2015 weekend training
8 drill because there would be a presentation regarding changes to military benefits
9 that could affect them. (ECF No. 44-2, at 11-17.) SSG Shears also received two
10 newsletters, dated October 26 and November 24, 2015 (collectively, the
11 “Newsletters”), wherein his commander, Captain Larry Rankin, stated that “[t]he
12 Family Readiness Group is planning to have an informational briefing during DEC
13 IDT. This will be a time to invite your family members to join us for a few hours, as
14 much of the information presented will be pertinent to updating Family Care plans,
15 and access to available resources for your loved ones.” (ECF No. 45-2, at 9-12,
16 23-26, 28-31.)
17 SSG Shears and his family, including his five-year-old son, the Plaintiff H.S.,
18 arrived at the Armory at midmorning on Sunday, December 6, 2015. (ECF No. 44-
19 2, at 20, 22; ECF No. 45-2, at 14.) In addition to setting up booths for
20 representatives from various benefits providers to present on behalf of the Family
21 Readiness Group, the command team organized a holiday party for the service
22 members and their families who attended. (ECF No. 44-3, at 3-4, 36-37.) Various
23 entertainment and leisure activities were provided for the attendees’ enjoyment,
24

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1 While the Armory is owned by the State of California, it is “occupied and operated”
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by the United States, which partially funds the Armory’s operations, maintenance
27 and renovations and uses the Armory for drills and storage of federal equipment
and supplies. (ECF No. 44-4 ¶¶ 2-5; ECF No. 44-3, at 54-57 (Master Cooperative
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1 including a holiday meal, movie projectors, a video game console, and an inflatable
2 play house castle with trampoline and slide (the “Bounce House”). (ECF No. 44-
3 3, at 29-30, 40-47; ECF No. 45-2, at 42; see also ECF 45-4, at 13-15 (photographs
4 of the Bounce House).) The Bounce House was erected on the concrete floor of
5 the Armory’s interior,2 with padded wrestling mats placed on the ground at the
6 Bounce House’s entrance and slide terminus. (ECF No. 44-3, at 11, 15-18, 23-24,
7 27-28.).)
8 While waiting for the day’s scheduled events to begin, SSG Shears’ children
9 became restless and requested to play on the Bounce House. (ECF No. 44-2, at
10 22-23.) SSG Shears obliged and supervised his children while they interacted with
11 the Bounce House. (ECF No. 44-2, at 24-25.) Another child jumped behind H.S.
12 as he climbed to the top of the Bounce House’s slide, which caused the Bounce
13 House to shake. H.S. was ejected from the top of the Bounce House. (ECF No.
14 44-2, at 25-27, 53-56.) H.S. fell approximately eight feet and landed head-first on
15 the concrete floor. (Id.) H.S. was immediately taken to the hospital for emergency
16 medical treatment and surgery. H.S. suffered substantial injuries. (ECF No. 44-3,
17 at 50; ECF No. 45-2, at 36-38.)
18 H.S. by guardian initiated this action on December 1, 2017, alleging a
19 premises liability cause of action against the United States. (ECF No. 1.)
20 STANDARD
21 Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil
22 Procedure if the moving party demonstrates the absence of a genuine issue of
23 material fact and entitlement to judgment as a matter of law. Celotex Corp. v.
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2 The United States asserts that Captain Rankin and other senior officers
27 discussed other potential locations for the Bounce House, including the Armory’s
front and back yards, but dismissed these other locations due to security, safety,
28
1 Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing
2 substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby,
3 Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.
4 1997). A dispute as to a material fact is genuine if there is sufficient evidence for
5 a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S.
6 at 248-50.
7 A party seeking summary judgment always bears the initial burden of
8 establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at
9 323. The moving party can satisfy this burden in two ways: (1) by presenting
10 evidence that negates an essential element of the nonmoving party’s case; or (2)
11 by demonstrating that the nonmoving party failed to establish an essential element
12 of the nonmoving party’s case on which the nonmoving party bears the burden of
13 proving at trial. Id. at 322-23. “Disputes over irrelevant or unnecessary facts will
14 not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pacific Elec.
15 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
16 Once the moving party establishes the absence of genuine issues of material
17 fact, the burden shifts to the nonmoving party to demonstrate that a genuine issue
18 of disputed fact remains. Celotex, 477 U.S. at 314. The nonmoving party cannot
19 oppose a properly supported summary judgment motion by “rest[ing] on mere
20 allegations or denials of his pleadings.” Anderson, 477 U.S. at 256. Rather, the
21 nonmoving party must “go beyond the pleadings and by her own affidavits, or by
22 ‘the depositions, answers to interrogatories, and admissions on file,’ designate
23 ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at
24 324 (quoting FED. R. CIV. P. 56(e)).
25 The court must view all inferences drawn from the underlying facts in the light
26 most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
27 Corp., 475 U.S. 574, 587 (1986). “Credibility determinations, the weighing of
28 evidence, and the drawing of legitimate inferences from the facts are jury functions,
1 not those of a judge, [when] he [or she] is ruling on a motion for summary judgment.
2 The evidence of the non-movant is to be believed, and all justifiable inferences are
3 to be drawn in his [or her] favor.” Anderson, 477 U.S. at 255.
4 DISCUSSION
5 In its motion for summary judgment, the United States argues it is entitled to
6 summary judgment pursuant to California Civil Code § 846 (the “Recreational Use”
7 statute). (See ECF No. 44-1.) In his motion for summary judgment, Plaintiff argues
8 he is entitled to summary judgment on a handful of the United States’ purported
9 defenses, namely the Recreational Use statute, the Feres doctrine, as well as the
10 “Due Care” and “Discretionary Function” exceptions to the Federal Tort Claims Act
11 (“FTCA”). (See ECF No. 45-1.)
12 A. The FTCA and the Recreational Use Exception
13 “The [FTCA] operates as a limited waiver of [the United States’] sovereign
14 immunity from suits for negligent or wrongful acts of government employees which
15 constitute ‘ordinary common-law torts.’” Gonzalez v. United States, 814 F.3d
16 1022, 1026–27 (9th Cir. 2016) (citing United States v. Gaubert, 499 U.S. 315, 318
17 n. 4 (1991); and Dalehite v. United States, 346 U.S. 15, 28 (1953)). Nevertheless,
18 the United States is only liable under the FTCA “if a private person[ ] would be
19 liable to the claimant in accordance with the law of the place where the act or
20 omission occurred.” 28 U.S.C. § 1346(b)(1); Ravell v. United States, 22 F.3d 960,
21 961 (9th Cir. 1994); see also 28 U.S.C. §§ 2674–80.
22 “Under California law, private landowners are afforded a substantial measure
23 of immunity from liability for injuries incurred by those entering or using their land
24 for recreational purposes.”3 Ravell, 22 F.3d at 961 (internal quotations and
25

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27 3 “[T]he United States must be treated as a private person for purposes of our
analysis, even if a different rule would apply to California governmental entities.”
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1 citations omitted). That “immunity” is granted in part by the Recreational Use
2 statute’s general nullification of the common law duty of care owed by those with
3 interests in real property to persons using such property for recreational purposes.4
4 Cal Civ. Code § 846(a) provides that, “[a]n owner of any estate or any other interest
5 in real property, whether possessory or nonpossessory, owes no duty of care to
6 keep the premises safe for entry or use by others for any recreational purpose or
7 to give any warning of hazardous conditions, uses of, structures, or activities on
8 those premises to persons entering for a recreational purpose, except as provided
9 in this section.” In Klein v. United States, 50 Cal. 4th 68, 78 (2010), the California
10 Supreme Court observed that, “[b]y the plain meaning of the language in its first
11 paragraph, Civil Code section 846 absolves California landowners of two separate
12 and distinct duties: the duty to keep the premises safe for recreational users, and
13 the duty to warn such users of hazardous conditions, uses of, structures, or
14 activities on the premises.” (internal quotations and citations omitted).
15 By its very terms, the Recreational Use statute has two preconditions to
16 application, namely “(1) the defendant must be the owner of an estate or any other
17 interest in real property, whether possessory or nonpossessory; and (2) the
18 plaintiff's injury must result from the entry or use of the premises for any
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21 4 While not relevant to the Court’s present analysis, the Recreational Use statute
also “shields the landowner from liability for injuries caused by (rather than to)
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recreational users.” Klein, 50 Cal. 4th at 78–79 (citing Cal. Civ. Code § 846(c));
23 Cal. Civ. Code § 846(c) (“An owner of any estate or any other interest in real
property, whether possessory or nonpossessory, who gives permission to another
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for entry or use for the above purpose upon the premises does not thereby do any
25 of the following: (1) Extend any assurance that the premises are safe for that
purpose. (2) Constitute the person to whom permission has been granted the legal
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status of an invitee or licensee to whom a duty of care is owed. (3) Assume
27 responsibility for or incur liability for any injury to person or property caused by any
act of the person to whom permission has been granted except as provided in this
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1 recreational purpose.” Ornelas v. Randolph, 4 Cal. 4th 1095, 1100 (1993) (internal
2 quotation marks omitted) (citing Cal. Civ. Code § 846(a)). There are three statutory
3 exceptions to the limitations on liability provided by the Recreational Use statute,
4 namely where the landowner: (1) “[w]illful[ly] or malicious[ly] fail[s] to guard or warn
5 against a dangerous condition, use, structure or activity”; (2) gives permission to
6 enter the premises for recreational purposes for consideration;5 or (3) “expressly
7 invite[s] rather than merely permit[s a person] to come upon the premises[.]” Cal.
8 Civ. Code § 846(d)(1) – (3).
9 Here, Plaintiff does not challenge the United States’ assertion that it is an
10 “owner of any estate or any other interest in” the Armory for the purposes of the
11 Recreational Use statute, and the Court concludes that the United States is in fact
12 an “owner” of an interest in the Armory thereunder. See Ornelas, 4 Cal. 4th 1095,
13 1103 (1993) (Recreational Use statute “articulates an exceptionally broad
14 definition of the types of interest in property which will trigger immunity” (internal
15 quotations and citations omitted)); Hubbard v. Brown, 50 Cal. 3d 189, 197, 785
16 P.2d 1183 (1990) (“[T]he holder of a permit to graze livestock on federal lands in
17 California is an owner of an interest in real property sufficient to come within the
18 immunity afforded by section 846.”); Callahan v. Martin, 3 Cal. 2d 110, 118, (1935)
19 (a leasehold is an “estate in land” in California). Similarly, Plaintiff does not
20 challenge the United States’ assertion that H.S. was engaged in a recreational
21 activity when he was injured, and the Court concludes that H.S.’s interactions with
22 the Bounce House constitute a “recreational purpose” under the Recreational Use
23 statute. See Cal. Civ. Code § 846(b) (“A ‘recreational purpose,’ as used in this
24 section, includes activities such as fishing, hunting, camping, water sports, hiking,
25 spelunking, sport parachuting, riding, including animal riding, snowmobiling, and
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5 “[O]ther than the consideration, if any, paid to said landowner by the state[.]” Cal.
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1 all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature
2 study, nature contacting, recreational gardening, gleaning, hang gliding, private
3 noncommercial aviation activities, winter sports, and viewing or enjoying historical,
4 archaeological, scenic, natural, or scientific sites.”); Ornelas, 4 Cal. 4th at 1101
5 (because “recreational purpose” under Recreational Use statute “is not limited to
6 activities which take place outdoors, and does not exclude recreational activities
7 involving artificial structures[,] . . . clambering about on farm equipment is no
8 different in kind from scaling a cliff or climbing a tree” and is “clearly recreational in
9 nature”).
10 Rather, Plaintiff argues that the protections afforded by the Recreational Use
11 statute should not apply to this case because the “Armory was not open to the
12 public for recreational use” or was not “suitable for recreation.” (ECF No. 45-1, at
13 10-12; ECF No. 53, at 7-8; see also ECF No. 51, at 16-18.) Both arguments,
14 however, fail as a matter of law. See Mansion v. United States, 945 F.2d 1115,
15 1118 (9th Cir. 1991) (“[W]e reject Mansion's contention that the government may
16 not invoke the immunity of Section 846 merely because the ‘general public’ does
17 not have open access to the property in question. . . . Similarly, we reject Mansion's
18 contention that the government does not deserve recreational use immunity
19 because it actively discouraged use of the park by restricting entry. The security
20 measures Mansion attempts to classify as discouragement serve to maintain the
21 integrity of the military facility, not to limit access to the park by permitted users.”
22 (citations omitted); Klein, 50 Cal. 4th at 75 (“This court [has] rejected the argument,
23 supported by earlier Court of Appeal decisions, that Civil Code section 846 does
24 not apply if the property on which the injury occurred was, at the time of the injury,
25 unsuitable for recreational use. . . . ‘One who avails oneself of the opportunity to
26 enjoy access to the land of another for one of the recreational activities within the
27 statute may not be heard to complain that the property was inappropriate for the
28 purpose.’” (quoting Ornelas, 4 Cal. 4th at 1108)); Ornelas, 4 Cal. 4th at 1107 (“The
1 [Recreational Use] statute reasonably applies to lands that are fenced as readily
2 as those that are open.”). Accordingly, unless an exception applies, the United
3 States would be shielded from a premises liability cause of action by the
4 Recreational Use statute.
5 Plaintiff argues that all three statutory exceptions apply. As to the “willful or
6 malicious failure to guard or warn” exception (i.e., § 846(d)(1)), however, Plaintiff
7 has failed to establish at least one of the elements of such exception, namely that
8 the United States or its agents “consciously failed to act to avoid the danger.” See
9 Mattice By & Through Mattice v. U.S., Dep't of Interior, 969 F.2d 818, 822 (9th Cir.
10 1992) (“To establish willful misconduct under California law, a plaintiff must show
11 that the defendant: (1) had actual or constructive knowledge of the peril; (2) had
12 actual or constructive knowledge that injury was probable, as opposed to possible;
13 and (3) consciously failed to act to avoid the danger.” (citations omitted)). Indeed,
14 Plaintiff admits that the United States took at least some steps to prevent injury to
15 users of the Bounce House by placing padded mats at its main points of ingress
16 and egress. That the United States could have done more to prevent harm, “at
17 most, would constitute negligence.” Id. at 823 (where government had installed a
18 warning sign at the base of a hill that the plaintiff mistakenly drove off, failure to
19 take additional precautions to prevent injury would constitute no more than
20 negligence); Manuel v. Pac. Gas & Elec. Co., 173 Cal. App. 4th 927, 947-48 (2009)
21 (where utility company installed anti-climbing devices on its towers, evidence of
22 improper installation of such devices or failure to explicitly warn of the risk of
23 electrocution attendant to climbing such towers “would show only negligence”).
24 As to the “consideration” exception (i.e., § 846(d)(2)), Plaintiff does not
25 dispute the United States’ assertion that no money changed hands in connection
26 with H.S.’s entry onto the Armory. Rather, Plaintiff argues that H.S.’s attendance
27 (and the attendance of service members’ families, generally) to the Family
28 Readiness Group’s information briefing “conferred a benefit” to the United States
1 because it “aid[ed] in the retention of service members” by boosting their morale.
2 (ECF No. 45-1, at 18-19; ECF No. 51, at 18-19; see also ECF No. 53, at 9-10.)
3 Plaintiff’s argument is unavailing, however, because “[a] landowner must gain
4 some immediate and reasonably direct advantage, usually in the form of an
5 entrance fee, before the exception to immunity for consideration under section 846
6 comes into play.” Johnson v. Unocal Corp., 21 Cal. App. 4th 310, 317 (1993). The
7 purported benefit of improved employee morale is simply too indirect and
8 speculative to constitute consideration. See Mansion, 945 F.2d at 1118–19
9 (benefit of improved labor relations resulting from picnic held on employer's
10 property insufficient consideration under Recreational Use statute).
11 Finally, as to the “express invitation” exception (i.e., § 846(d)(3)), Plaintiff
12 argues that H.S. was expressly invited to the Armory by way of Captain Rankin’s
13 statements in the Newsletters and/or by SSG Shears via the authority delegated
14 to him by Captain Rankin via his statements in the Newsletters. In response, the
15 United States argues that, because the Newsletters “did not specifically address
16 particular family members by name, type of family member, or otherwise”, it was
17 not a direct and personal invitation and therefore insufficient to constitute an
18 express invitation. (ECF No. 50, at 23-25.) It further argues that SSG Shears had
19 “no authority to personally invite family members on behalf of the United States.”
20 (ECF No. 52, at 8 n.4.) Yet there is no support in the case law for the purported
21 requirement that H.S. be personally-named in the Newsletters to constitute a
22 “direct and personal” invitation. Rather, all that is required is that the invitation be
23 direct, personal, and to a person personally selected by the landowner. See Wang
24 v. Nibbelink, 4 Cal. App. 5th 1, 32 (2016) (“’Express invitation’ in section 846 refers
25 to a direct, personal request by the landowner to persons whom the landowner
26 personally selects to come onto the property” (citations omitted). Further, the
27 parties do not cite, and the Court is unable to locate, prior decisions that directly
28 define what constitutes a “direct, personal” request or what it means for a
1 landowner to “personally select” a person to invite. Rather, these concepts have
2 generally been defined by exclusion. See Phillips v. United States, 590 F.2d 297,
3 299 (9th Cir. 1979) (“[I]t seems evident to us that the Legislature did not intend to
4 include within the concept of express invitation, used in section 846, any invitation
5 to the general public.”); Calhoon v. Lewis, 81 Cal. App. 4th 108, 115, 96 Cal. Rptr.
6 2d 394, 398 (2000) (“[P]ersons responding to advertisements, brochures,
7 promotional materials, and other public offers are not express invitees under the
8 [Recreational Use] statute.”); Johnson, 21 Cal. App. 4th at 317 (employer’s
9 execution of a rental agreement with landowner in connection with use of premises
10 for employer’s company picnic did not constitute an express invitation from
11 landowner to employer’s employees).
12 Contrary to the United States’ suggestions, the instant case is easily
13 distinguished from the caselaw upon which the United States relies for its
14 argument that the Newsletters were not express invitations. See Ravell, 22 F.3d
15 at 960, 962-63 (no express invitation to attend free air show where “event was
16 widely publicized in newspapers and was attended by 300,000 people”); Phillips,
17 590 F.2d at 298-300 (“promotional literature from the Forest Service, describing
18 the attractions of Angeles National Forest and its facilities” was not a “personal
19 invitation” to individuals “to hike in the advertised national park”); Casas v. United
20 States, 19 F. Supp. 2d 1104, 1107 (C.D. Cal. 1998) (no express invitation to run in
21 race open to the public where the plaintiff “received a flyer promoting the [event]
22 as part of a mass mailing” and the defendant “also advertised their event in sporting
23 goods stores, health clubs, and schools”); Coryell v. United States, 855 F. Supp.
24 1120, 1121-22 (C.D. Cal. 1994) (no express invitation to attend military air show
25 where the “event had been highly publicized to the general public, and the public
26 was invited and encouraged to attend”). Unlike those cases, the facts of the instant
27 case, viewed in the light most favorable to Plaintiff, are that the Newsletters was
28 sent only to members of Captain Rankin’s company, the 79th HHC, which totaled
1 no more than 170 individuals. (See ECF No. 44-2, at 32 (approximately 130 to
2 170 individuals assigned to Captain Rankin’s company); see also ECF No. 45-2,
3 at 23-26, 28-31 (Newsletters are addressed only to 79th HHC).) Moreover, the
4 United States’ reliance on a footnote in Ravell for the proposition that an invitation
5 from a service member to his family members cannot constitute an express
6 invitation from the United States overstates the holding in Ravell. Ravell, 22 F.3d
7 at 961, 963 n.3 (invitation by service member to his mother to attend “widely-
8 attended” airshow advertised to the general public attended by over 300,000
9 people was insufficient to constitute express invitation where the mother
10 “presented no facts to indicate that [service member] was, in any sense, authorized
11 to make express invitations on behalf of the United States which went beyond the
12 advertised invitation to the general public”). Unlike in Ravell, Plaintiff has
13 presented facts indicating that SSG Shears was authorized to extend an invitation
14 on behalf of the United States by Captain Rankin exhortations in the Newsletters.6
15 (See ECF No. 45-2, at 26, 31.)
16 Nevertheless, because genuine disputes of material fact exist as to whether
17 Captain Rankin and/or SSG Shears had sufficient authority, whether through
18 delegation or otherwise, to invite H.S. onto the Armory on behalf of the United
19 States, and therefore whether the “express invitation” exception to the
20 Recreational Use statute is triggered, summary judgment in favor of either party is
21 inappropriate.
22 B. The Discretionary Function Exception
23 The “Discretionary Function” exception to the FTCA is set forth in the second
24

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6 While the United States argues that Captain Rankin, SSG Shears, and other
26
service members had no authority to issue orders to civilians and therefore it was
27 not mandatory for H.S. to attend the December 6, 2015 event, the Court does not
see how those assertions impugns their authority to invite civilians such as H.S.
28
1 half of 28 U.S.C. § 2680(a), which provides that the United States’ waiver of
2 sovereign immunity under the FTCA does not extend to “[a]ny claim . . . based
3 upon the exercise or performance or the failure to exercise or perform a
4 discretionary function or duty on the part of a federal agency or an employee of the
5 Government, whether or not the discretion involved be abused.” 28 U.S.C. §
6 2680(a). The Court utilizes a two-part test to determine the Discretionary Function
7 exception’s applicability, asking first “whether the challenged action was a
8 discretionary one – i.e., whether it was governed by a mandatory statute, policy,
9 or regulation” and, if so, “whether the challenged action is of the type Congress
10 meant to protect – i.e., whether the action involves a decision susceptible to social,
11 economic, or political policy analysis.” Whisnant v. United States, 400 F.3d 1177,
12 1180–81 (9th Cir. 2005) (citing United States v. Gaubert, 499 U.S. 315, 322–25,
13 (1991); Berkovitz v. United States, 486 U.S. 531, 536–37 (1988); and O'Toole v.
14 United States, 295 F.3d 1029, 1033–34 (9th Cir. 2002)); see also Marlys Bear Med.
15 v. U.S. ex rel. Sec'y of Dep't of Interior, 241 F.3d 1208, 1214 (9th Cir. 2001) (“The
16 exception is meant to protect political, social, and economic judgments that are the
17 unique province of the Government, not all decisions involving some discretion.
18 . . . [A]ctions based on technical or scientific standards are not the kind of
19 judgments meant to be protected from liability by the discretionary function
20 exception because those actions do not involve a weighing of policy
21 considerations.” (internal quotations and citations omitted)); Gonzalez v. United
22 States, 814 F.3d 1022, 1028 (9th Cir. 2016) (“The decision need not actually be
23 grounded in policy considerations so long as it is, by its nature, susceptible to a
24 policy analysis.” (citations omitted)). “It is the government's burden to demonstrate
25 the applicability of the discretionary function exception.” Id. at 1181 (citing Bear
26 Medicine v. United States ex rel. Sec'y of the Dep't of the Interior, 241 F.3d 1208,
27 1213 (9th Cir. 2001)). “Where the exception applies, the United States has not
28 waived its sovereign immunity and we lack subject matter jurisdiction over the
1 claims.” Gonzalez, 814 F.3d at 1027.
2 Here, Plaintiff concedes the first element of the two-part test, admitting that
3 the United States’ “acts and omissions in connection with the procurement,
4 installation, and operation of the [Bounce House] . . . involved an element of
5 judgment.” (ECF No. 45-1, at 21-22.) Plaintiff denies that the second element is
6 met, however, arguing that any discretion exercised in connection with the Bounce
7 House “pertain[ed] to the safety of the invitees to the Armory” as opposed to
8 relevant social, economic, or political policy. (Id. (citing Whisnant, 400 F.3d at
9 1181 (“[M]atters of scientific and professional judgment – particularly judgments
10 concerning safety – are rarely considered to be susceptible to social, economic, or
11 political policy.”)).) Plaintiff further argues that to the extent that any decision to
12 adopt safety precautions related to the Bounce House is susceptible to protected
13 policy considerations, “the execution of that responsibility is not.” (Id. (citing Marlys
14 Bear Med., 241 F.3d at 1215 (“The decision to adopt safety precautions may be
15 based in policy considerations, but the implementation of those precautions is
16 not.”)); see also ECF No. 53, at 12-13 (“When choosing a location for the [Bounce
17 House, the United States] was merely implementing safety precautions that were
18 already in place.”).) In response, the United States argues that the Discretionary
19 Function exception prevents judicial second-guessing of the choice by Captain
20 Rankin and other agents of the United States to place the Bounce House in the
21 Armory’s interior because those agents included safety and security concerns in
22 their decision-making process. (ECF No. 50, at 29-30 (“The front grass area was
23 dismissed due to concern over physical security measures, because Sgt. Vargas
24 and others had heard news reports about National Guard members being targeted
25 by outside organizations. The backyard of the Armory was also dismissed
26 because it had military vehicles that were parked and often moving in and out,
27 thereby creating a potential hazard.” (citing ECF No.44-3, at 23, 27-28.)).)
28 The Court agrees with the United States that the decision of where to locate
1 the Bounce House was, by its nature, susceptible to a policy analysis that is
2 shielded by the Discretionary Function exception. Plaintiff has identified no
3 requirements, policies, or directives that prescribed a course of action for the
4 United States’ agents to follow in deciding upon a suitable location for the Bounce
5 House. See Summers v. United States, 905 F.2d 1212, 1215 (9th Cir. 1990)
6 (“[W]here the challenged governmental activity involves safety considerations
7 under an established policy, rather than the balancing of competing policy
8 considerations, the rationale for the exception falls away and the U.S. will be
9 responsible for the negligence of its employees.” (internal quotations and citations
10 omitted)); see also Marlys Bear Med., 241 F.3d at 1215 (“[A] general statutory duty
11 to promote safety would not be sufficient to meet the Berkovitz requirement for
12 specific regulations setting out a clear duty.” (internal quotations, citations, and
13 alterations omitted)). Further, the Court is unconvinced that objective technical,
14 scientific or professional principles alone would guide such a decision. See, e.g.,
15 Soldano v. United States, 453 F.3d 1140, 1147-51 (2006) (setting a safe speed
16 limit for park roads “is essentially a matter of scientific and professional judgment”
17 that is “circumscribed by objective safety criteria” and “empirical factors [such] as
18 the elevation and stopping-sight distance of a road”, whereas decision about the
19 “use and placement of [warning] signs” requires “balanc[ing of] a panoply of social,
20 economic, and political considerations”, including “minimal intrusion, avoidance of
21 unnecessary proliferation of signs and the safety of visitors”); Childers v. United
22 States, 40 F.3d 973, 975-76 (9th Cir. 1994) (park rangers’ decisions concerning
23 trail maintenance and closure required balancing of access and public safety and
24 thus fell within discretionary function exception); Kennewick Irrigation Dist. v.
25 United States, 880 F.2d 1018, 1027-31 (9th Cir. 1989) (decision not to line
26 irrigation canal with concrete during design phase was susceptible to protected
27 policy analysis, but the failure to remove unsuitable materials during construction
28 was not). Indeed, in deciding where to locate the Bounce House, Captain Rankin
1 and the other decision-makers were engaged in balancing competing policy
2 considerations, such as ensuring the safety of service members and other
3 attendees, maximizing attendees’ access to the planned activities at the event, and
4 minimizing their interference with the other operations at the Armory. (See ECF
5 No. 44-3, at 11, 23-24, 27-28.) Moreover, to the extent that Plaintiff argues that
6 the “design/implementation” distinction is applicable to this issue, the Court
7 concludes that, regardless of the appropriate classification, the Discretionary
8 Function exception would still apply because protected policy considerations were
9 nonetheless implicated in deciding where to locate the Bounce House. See
10 Whisnant, 400 F.3d 1177, 1182 (9th Cir. 2005) (“Our case law reveals one
11 exception . . . to the design/implementation distinction: The implementation of a
12 government policy is shielded where the implementation itself implicates policy
13 concerns, such as where government officials must consider competing fire-fighter
14 safety and public safety considerations in deciding how to fight a forest fire,
15 balance prison safety and inmate privacy considerations in deciding how to search
16 a prisoner's cell in response to a reported threat of violence, or weigh various
17 regulatory objectives in deciding whether to certify a new aircraft design.” (citing
18 GATX/Airlog Co. v. United States, 286 F.3d 1168, 1175–77 (9th Cir. 2002); Alfrey
19 v. United States, 276 F.3d 557, 565 (9th Cir. 2002); and Miller v. United States,
20 163 F.3d 591, 595–96 (9th Cir. 1998))).
21 Accordingly, the Court concludes that the United States has not waived its
22 sovereign immunity as to the isolated issue of whether the United States was
23 negligent in its selection of the Armory’s interior, as opposed to the front or
24 backyards, for erection of the Bounce House. The Court therefore lacks subject
25 matter jurisdiction over such isolated issue. See Gonzalez, 814 F.3d at 1027.
26 Nevertheless, the Court does have jurisdiction over the installation, operation, and
27 maintenance of the Bounce House, including any claims related to the choice of
28 where to locate the Bounce House within the Armory’s interior.
1 C. The Feres Doctrine & the Due Care Exception
2 The “Feres doctrine” is a reference to the Supreme Court’s decision in the
3 matter of Feres v. United States, wherein it was held that “the Government is not
4 liable under the [FTCA] for injuries to servicemen where the injuries arise out of or
5 are in the course of activity incident to service.” Feres v. United States, 340 U.S.
6 135, 146 (1950). The Feres doctrine has been extended to bar claims from non-
7 service members “for independent injuries stemming from allegedly negligent acts
8 against military personnel.” Monaco v. United States, 661 F.2d 129, 134 (9th Cir.
9 1981) (recovery barred for daughter’s birth defect resulting from father’s exposure
10 to radiation while he was on active military duty); see also In re Agent Orange”
11 Product Litigation, 506 F. Supp. 762 (E.D.N.Y.1980) (recovery barred to children
12 claiming for genetic injuries and birth defects caused by parents' exposure to Agent
13 Orange).
14 The “Due Care” exception to the FTCA is embodied by the first half of 28
15 U.S.C. § 2680(a), which provides that the United States waiver of sovereign
16 immunity under the FTCA does not extend to “[a]ny claim based upon an act or
17 omission of an employee of the Government, exercising due care, in the execution
18 of a statute or regulation, whether or not such statute or regulation be valid.” 28
19 U.S.C. § 2680(a). The Due Care exception “applies if (1) the statute or regulation
20 in question ‘specifically proscribes a course of action for an officer to follow,’ and
21 (2) ‘the officer exercised due care in following the dictates of that statute or
22 regulation.’” Ferguson v. United States, Case No. 3:15-CV-1253-JM-MDD, 2016
23 WL 4793180, at *7 (S.D. Cal. Sept. 14, 2016) (quoting Welch v. United States, 409
24 F.3d 646, 652 (4th Cir. 2005)).
25 In its response to Plaintiff’s motion for summary judgment, the United States
26 confirms that it “does not intend to assert the Feres doctrine, nor what Plaintiff
27 identifies as the ‘due care’ exception under 28 U.S.C. § 2680(a).” (ECF No. 50, at
28 16.) The Court considers the United States’ response a withdrawal of those
1 ||defenses and accordingly strikes them from the United States’ answer (ECF No.
2 ||8, at 20.) Therefore, Plaintiff's request for summary judgment on the Feres
3 doctrine and Due Care exception defenses is denied as moot.
4 CONCLUSION
5 Based upon the foregoing, the Court DENIES Defendant United States’
6 ||motion for summary judgment (ECF No. 44) and DENIES Plaintiff's motion for
7 ||Summary judgment (ECF No. 45). The Court STRIKES the Feres doctrine and
8 || Due Care exception defenses from the United States Answer (ECF No. 8) and
9 ||therefore DENIES AS MOOT Plaintiff's request for summary judgment thereon.
10 ||Further, the Court lacks subject matter jurisdiction over the isolated issue of
11 ||whether the United States was negligent in its selection of the Armory’s interior, as
12 ||opposed to the front or backyards, for erection of the Bounce House and such
13 |/isolated claim is therefore DISMISSED WITH PREJUDICE.
14 IT IS SO ORDERED.
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16 || Dated: August 13, 2019
17 Bay Tid. Mahar
18 Honor ble Barry Ted Moskdwitz
United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10079333. Public record. Not legal advice.