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Ninth Circuit:
U.S. Not Liable to Picture-Taker Who Tripped on Remnant of Fence in Recreational Area
By a MetNews Staff Writer
The United States is immune from liability, under California’s recreational-use statute, to a woman who was injured after tripping on a fragment of a fence protruding from the ground in San Francisco’s Lincoln Park, the Ninth U.S. Circuit Court of Appeals held yesterday, viewing as immaterial whether the mishap occurred on city/county or federal property.
Plaintiff Marie Thornton was herself uncertain as to ownership of the land and the fence, pleading that they belonged to the City/County of San Francisco “and/or” the U.S., suing both. District Court Judge Trina L. Thompson of the Northern District of California dismissed the actions against the two entities based on Civil Code §846(a) which provides:
“An 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.”
Under the Federal Tort Claims, the U.S. waives tort immunity “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” A private person owes no duty to a recreational user of his or her land, Thompson said, reasoning that the U.S. cannot be liable to Thornton who tripped and fell on May 21, 2020, while walking along a path with her dog and boyfriend, snapping photos of the Legion of Honor, a museum.
Varying Theories
In the course of the litigation, Thornton put forth varying theories as to ownership of the property and the fence, saying at one point that it was not until after she brought suit against San Francisco in state court that she learned through discovery that the city/county “had nothing to do with this fence, and that the fence was probably owned and maintained by the Federal Government.”
She said in her reply brief on appeal that the fence “apparently previously marked the border between” San Francisco-owned “Lincoln Park Golf Course and federal property.”
The city/county has said that the fence is on its property but that it “believes that the chain link fence was installed by the U.S. Government, as part of the Golden Gate National Recreation Area, which is part of the National Park Service.”
Ninth Circuit’s Opinion
The Ninth Circuit affirmed the dismissal in a memorandum opinion signed by Judges Gabriel P. Sanchez and Jennifer Sung and Senior Circuit Judge Richard R. Clifton. Avoiding discussion of the uncertainties expressed by Thornton, they wrote:
“Thornton alleges that she tripped when she stepped onto the fence as she attempted to enter federal property. It does not matter that Thornton’s injuries, allegedly caused by the fence, were alleged to have occurred on the City’s side of the property line between the City and federal land. Her injuries occurred because she was attempting to enter the USA’s property for a recreational purpose, and the statute provides that the USA owes no duty of care to keep the premises, including the fence, safe for her entry or use.”
The judges added:
“Holding a property owner liable for injuries suffered by a recreational user, such as Thornton, would undermine the purpose of the statute and discourage owners from permitting access to recreational users. Thornton’s argument that the protection afforded by the statute does not apply to her injury because the injury occurred just outside the boundary line does not reasonably follow from either the language or the logic of section 846.”
Claim Against City/County
Addressing Thornton’s claim against the city/county, the judges said:
“The only ground asserted for federal court jurisdiction over that claim was the existence of Thornton’s claim against the USA. Because Thornton’s federal claim was properly dismissed for lack of subject matter jurisdiction, the district court lacked supplemental jurisdiction over her state law claim against the City. It must be dismissed as well….Thornton may proceed with her action already pending against the City in state court, but we affirm the dismissal of her federal court claim against the City, without prejudice.”
The case is Thornton v. U.S., 23-16095.
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