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MATTICE v. UNITED STATES

June 28, 1990

DARAXA LEE MATTICE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: SMITH

 FERN M. SMITH, UNITED STATES DISTRICT JUDGE

 Plaintiff alleges that the U.S. is liable for her injuries due to its negligent failure to provide adequate signs or other warning of the curve, and for failure to provide an adequate guardrail or barrier to prevent such a fall.

 Defendant moves to dismiss the action for lack of subject matter jurisdiction, claiming that it has not waived sovereign immunity for the exercise or performance of a discretionary function on the part of a federal agency or employee. 28 U.S.C. § 2680(a). Defendant also moves for summary judgment on the ground that plaintiff's claim is barred by California's Recreational Use Statute, Cal. Civil Code § 846.

 Having carefully reviewed all submitted materials, and heard counsel's argument on these issues, the Court hereby issues the following ORDER, granting both motions.

 FACTS

 Prior to the accident, plaintiff (who was fourteen years old at the time) was with a group of teenagers at the picnic area near the crash site. There she met Alyosha Mattei, the registered owner of the car in question. Because Mattei had been drinking alcohol, plaintiff offered to drive his car for him. She apparently was not fully confident of her ability to do so, however, since she allegedly was taking a "test drive" on Enderts Road.

 Defendant alleges that plaintiff was steering and working the clutch while Mattei shifted the gears. They approached the Crescent Beach Overlook at approximately 30 m.p.h. Rather than stepping on the brake to slow down, plaintiff apparently stepped on the clutch. She steered the car along the curve to the left and passed the overlook parking area when her vehicle drifted to the right and she struck the 4" by 6" redwood guardrail at a 45 degree angle. The car fell through the guardrail to the beach below.

 Sovereign Immunity

 A party may bring a cause of action against the U.S. only to the extent the government has waived its sovereign immunity. The FTCA is a limited waiver of sovereign immunity, but it does not assure injured persons damages for all injuries caused by the U.S. The discretionary function exception, 28 U.S.C. § 2680(a), expressly excepts from the waiver of immunity:

 
Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

 In Berkovitz v. U.S., 486 U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988), the Supreme Court outlined a two-prong test for determining whether the discretionary function exception bars a claim against the government. The key questions are (1) does the challenged conduct involve a permissible element of judgment or choice, and (2) is the discretion involved of the kind that the discretionary function exception was designed to shield. The first prong of this test is satisfied if the challenged conduct involved judgment or choice. The second prong will be satisfied if the discretion was based on social, political, or economic policy considerations.

 In this case, it is undisputed that the decision whether or not to erect a guardrail or other barrier is wholly discretionary with the government. In Bowman v. U.S., 820 F.2d 1393 (4th Cir. 1987), a Fourth Circuit panel held that the government's decision not to place a guardrail or provide other warning near an embankment was "precisely . . . [the] type of decision Congress intended to shield from liability . . . ." Id. at 1395. Further, the Court stated that "these ...


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