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

PREGERSON, Circuit Judge,

dissenting:

I dissent because I am in basic disagreement with the majority on all three grounds of its opinion. 1 Part of this disagreement stems from a difference in the way we characterize Enderts Beach Road. I view Enderts Beach Road as akin to an *824 ordinary street or highway, and not as the part of Redwood National Park that is used for recreation. It seems to me that the other members of the panel take the opposite view.

A.

Enderts Beach Road is a paved) two-lane road, most of which is owned by the federal government’s Redwood National Park in Del Norte, County, California. Each lane is a standard twelve feet in width. The roadway was originally constructed by the State of California in 1919 and relinquished to Del Norte County in 1933. It was taken over by the United States government when the government acquired Redwood National Park in 1973. The federal government is responsible for the maintenance, operation, and repair of the road. According to park employees, it is the main thoroughfare in Redwood National Park.

The road ventures off from California Highway 101, runs through a private residential area, and continues into Redwood National Park. Nothing in the appearance of the road puts the user on notice that it would be subject to Cal.Civ.Code § 846. Most importantly, it has all of the characteristics of an ordinary street or road and provides no indication that it is not continually maintained in a reasonably safe manner. Thus, Enderts Beach Road differs markedly from a paved road intended for recreational use or from an unpaved road which drivers would not expect to be free from unknown dangers.

The purpose of § 846 is to “encourage property owners to allow the general public to recreate free of charge on privately owned property” by limiting potential tort liability for injuries sustained by recreational users. Hubbard v. Brown, 50 Cal.3d 189, 193 , 266 Cal.Rptr. 491 (1990) (emphasis added). The Federal Tort Claims Act (“FTCA”) makes the federal government liable to the same extent as a private individual under like circumstances. 28 U.S.C. § 2674 ; Simpson v. United States, 652 F.2d 831, 833 (9th Cir.1981). However, the rationale underlying § 846 — to encourage the opening up of private property to recreational use — is not as strong when applied to the federal government. The federal government has an independent statutory duty to open up park and forest lands for enjoyment by the general public. 2 16 U.S.C. § 1 (1988) (creating in the Interior Department a National Park Service to promote and regulate national parks, monuments, and reservations for public benefit and enjoyment).

Of course, the federal government would be hard pressed to assure safe conditions on every foot of the vast areas of national parks and forests for individuals engaging in recreational activities entailing some risk. Moreover, part of the enjoyment of these lands is to view them in their natural, untamed condition. Under these circumstances, § 846. serves its purpose. Thus, we have found that the immunity provided by state recreational use statutes, such as § 846, applies to the federal government in situations where the plaintiff had engaged in a recreational activity on federal property used for recreational purposes. See, e.g., O’Neal v. United States, 814 F.2d 1285 (9th Cir.1987) (collapse of logging road during hunting expedition); Proud v. United States, 723 F.2d 705 (9th Cir.), cert. denied, 467 U.S. 1252 , 104 S.Ct. 3536 , 82 L.Ed.2d 841 (1984) (diving accident in national park); Jones v. United States, 693 F.2d 1299 (9th Cir.1982) (innertubing accident on ski slope); Simpson, 652 F.2d 831 (collapse of peninsula ground tossed plaintiff into natural hot water pool in national forest).

California’s Recreational Use Statute provides: “[A landowner] owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose *825 or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose_” Cal.Civ.Code § 846 (West 1982). For purposes of this statute, “premises” has been defined as “a tract of land suitable for recreation.” Mansion v. United States, 945 F.2d 1115, 1118 (9th Cir.1991) (citing Colvin v. Southern Cal. Edison Co., 194 Cal.App.3d 1306, 1314 , 240 Cal.Rptr. 142 (1987)).

The majority’s analysis extends the immunity provided by § 846 to those areas that lead to property suitable for recreational purposes. Enderts Beach Road provides access to Redwood National Park, property that is suitable for recreational purposes. I part company with the majority because I believe that a paved, federally-owned, public road' that is an extension of the area’s highway system presents a situation entirely different from a road used as part of the recreational activity. See Seyler v. United States, 832 F.2d 120, 122 (9th Cir.1987) (“To apply the recreational use statute to the ordinary street or highway ignores the purpose of the statute, which is ... to open land to the public that would otherwise be closed to it.”). The manner in which Enderts Beach Road is paved, marked, striped, and lighted tells the user that it is a reasonably well-maintained road. It engenders reliance. I would not include Enderts Beach Road within the “premises” subject to § 846 immunity. Accordingly, I would hold that the protection of § 846 is not available to the federal government through the provisions of the FTCA when the alleged negligence is failing to maintain adequately a paved, public road that engenders reliance by giving all the appearances of an ordinary street or highway, including universally recognized stripes, road signs, and refleetorized markings.

B.

I also disagree with the majority that transportation within the property to and from a recreational activity is always encompassed within the term “recreational purpose” of § 846. The statute states that a landowner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose.” Cal.Civ. Code § 846.

The government does not contend that Mattice’s driving constituted recreational activity; rather, it was her previous picnicking that provides the relevant recreational link. The question thus is whether Mattice’s driving on her way home is sufficiently related to her earlier picnicking activity to come within the immunity afforded by § 846. I do not think it is.

Mattice’s intent in driving on Enderts Beach Road that night was to return home. She had left the recreational portion of Redwood National Park. Enderts Beach Road appeared to be an ordinary road. Under these' circumstances, I would' conclude that Mattice was not engaged in a recreational activity at the time of her accident.

Smith v. Scrap Disposal Corp., 96 Cal. App.3d 525 , 158 Cal.Rptr. 134 (1979), cited by the majority, is not dispositive. Smith suffered injuries while engaging in allegedly recreational activity — playing on a bulldozer — not while en route to or from that activity. The factual question was whether Smith had indeed entered the property to play on the bulldozer (a recreational activity) or whether he was attempting to rescue his friend who was playing on the bulldozer (a nonrecreational activity). Id. at 528 , 158 Cal.Rptr. 134 . Dictum in Smith , in fact, supports Mattice’s position. The court stated: “If plaintiff had been driving on a public thoroughfare returning from a fishing trip and stopped to go across Scrap’s land for a non-recreational purpose, Scrap’s present argument would be unavailing. The underlying purpose of the trip could not be used to shield it from liability.” Id. at 529 , 158 Cal.Rptr. 134 . Mattice, similarly, was on a public thoroughfare, and not engaged in a recreational activity at the time of her accident. Thus, her previous picnicking should not serve to bring her within § 846 immunity.

In some situations, I would agree with the majority that transportation within the property falls within the protection afforded by § 846. These are situations where *826 the portions travelled upon give no indication that they are being adequately maintained. Here, however, I would disassociate Mattice’s test drive from her earlier picnicking activity.

C.

I further disagree with the majority that Mattice failed to raise genuine issues of material fact to establish an exception to application of California’s Recreational Use Statute. Even if § 846 is otherwise applicable, liability may still attach through the exception for a “willful or malicious failure to guard or warn against a dangerous condition.” Cal.Civ.Code § 846. Under California law, a negligent act or omission is raised to the level of willful misconduct if the following essential elements are shown: “(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 danger, and (3) conscious failure to act to avoid the peril.” Morgan v. Southern Pacific Transportation Co., 37 Cal.App.3d 1006, 1012 , 112 Cal.Rptr. 695 (1974).

The government had actual knowledge of the peril posed by the conditions at Crescent Beach Overlook. The inherent danger is evident from the location of the guardrail — above a 350 foot drop into the rocks and ocean below. See Termini v. United States, 963 F.2d 1264, 1267 (9th Cir.1992) (“Common sense dictates that a precipice at the end of a road constitutes a peril to be apprehended.”). Impact with the guardrail, alone, is likely to cause serious injury. The government does not contest that it was responsible for maintaining and repairing Enderts Beach Road, and placement of the guardrail indicates that the National Park Service knew of the steep drop off the overlook.

The government also had actual or constructive knowledge of probable injury as a result of the danger through the nine reports of accidents in the vicinity over the ten years preceding Mattice's accident. See Von Tagen v. United States, 557 F.Supp. 256, 260 (N.D.Cal.1983) (evidence of prior accidents is also useful “in evaluating the government’s knowledge of the probability of injury”). Additionally, Norman Blair, the North District Ranger at Redwood National Park, was aware that the redwood guardrail, itself, had been repaired due to vehicle impact. Further, Mattice submitted a declaration from David Henry, a former State of California Traffic Engineer. Henry declared that the combination of factors such as lack of a center stripe, lack of shoulder stripes, lack of reflectors, lack of curve warning signs near the curve, and lack of an adequate guardrail comprised a trap leading motorists driving at night to head straight for the cliff in the vicinity of the guardrail.

The government admits that the dangerous condition of the road was obvious. Nevertheless, it claims that government personnel did not actually know of the danger because reasonable drivers would be aware of the obviously dangerous geography and drive with caution. I find this reasqning untenable, especially in light of park employee testimony that conditions such as fog and darkness made the road difficult to navigate.

This theory of “obviousness” was argued in Judd v. United States, 650 F.Supp. 1503 (S.D.Cal.1987). The present case is distinguishable from Judd , however. In Judd , the district court concluded that the geography of the area would not lead a reasonable person to believe that a 35 foot swan dive into a small pool would be attempted in light of the visibly rocky bottom. Id. at 1512 . “The risk is too obvious to a potential diver.” Id. Here, a reasonable person would not necessarily know the road conditions ahead, especially in darkness. Judd is further distinguishable because National Forest personnel had no knowledge that anyone had ever dove from that height although they knew that people swam in the pool and dove from low heights. In the present case, if the accident reports from surrounding areas were not sufficient to establish NPS’ actual or constructive knowledge of the peril, the impacts on the guardrail certainly were.

I find unavailing the government’s contention that it lacked knowledge of the *827 probability of injury because no one had ever driven off Enderts Beach Road at Crescent Beach Overlook. See Termini, at 1269 (rejecting same reasoning and citing California cases doing same). I also find untenable Norman Blair’s statement that it would have taken a fatality at that particular location to call his attention to the need for a sturdier guardrail. See Appellee’s Supplemental Excerpts of Record at 78.

Conscious failure to act is established by Blair’s failure to upgrade the guardrail in light of the vehicle impacts upon it and of his knowledge that the redwood was not adequate to prevent cars from going over the cliff. Additionally, Blair had recommended improvements to the conditions of the road, including striping on the portion of Enderts Beach Road near Crescent Beach Overlook. Blair testified that fog (shoulder) stripes were needed to indicate the location of the right portion of the road because it was especially difficult to see during periods of fog and darkness. No action was taken for several years, until after Mattiee’s accident. At the time of the accident, there were no shoulder stripes, reflectorized pavement markers to warn of the edge of the pavement, or painted center line separations on the roadway in that area. The presence of reflectors on the guardrail is disputed. Certainly, the evidence presented by Mattice is sufficient to raise genuine issues of material fact on each of the three elements to preclude summary judgment.

“When willfulness is an issue, summary judgment should be granted with caution, since questions such as intent or motive are presented.” Simpson, 652 F.2d at 834 . In Simpson , the plaintiff was injured when the ground gave way and he was tossed into a scalding hot water pool. We reversed the trial court’s grant of summary judgment in favor of the government because the dispute over the type of warnings given raised a material issue of fact as to “[wjhether the efforts of the United States were so feeble as to rise to the level of willfulness.” Id.

The facts of the present case establish, at the very least, that Mattice has raised genuine issues of material fact to establish the exception for willful misconduct. Summary judgment was therefore inappropriate. I would reverse the district court’s judgment and remand for a trial.

. The majority does not reach the issue whether Mattice's claim is barred by the discretionary function exception to the Federal Tort Claims Act. See 28 U.S.C. § 2680 (a) (1988). Because I believe the district court erred in granting summary judgment for the government, I would reach this issue. Whether the decision to use redwood for the guardrail falls within the discretionary function exception under these circumstances is not clear. However, we have consistently held that the government’s failure to post warning signs regarding dangerous conditions or obstacles on government property is not the type of judgment that the discretionary function exception was designed to shield. Our decisions in "failure to warn” cases dictate a conclusion that failing to adequately stripe, sign, reflectorize, and guardrail Enderts Beach Road at Crescent Beach Overlook does not fall within the exception. See, e.g., Summers v. United States, 905 F.2d 1212 (9th Cir.1990); Seyler v. United States, 832 F.2d 120 (9th Cir.1987); ARA Leisure Services v. United States, 831 F.2d 193 (9th Cir.1987).

. There is no evidence to suggest that the federal government ever considered closing these areas should immunity under recreational use statutes be denied. Paul A. Svoboda, Note, Protecting Visitors to National Recreation Areas Under the Federal Tort Claims Act, 84 Colum.L.Rev. 1792, 1800-431 (1984). Additionally, the government opened several new recreational areas pri- or to the enactment of most recreational use legislation, when its liability was determined under the stricter public invitee standard. Id. at 1801.