ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [Doc. #56]
On March 30, 2011, Plaintiffs Richard and Jill Jones filed a Second Amended Complaint ("SAC") against Defendant United States of America. The SAC alleges causes of action for "Dangerous Condition of Public Property/Direct Negligence" and "Loss of Consortium." Defendant moves to dismiss the SAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion will be granted.
The Wawona Hotel is owned by the United States and is managed by Delaware North Companies, Inc. ("DNC") pursuant to a concession contract. SAC at ¶¶ 4-5. On August 1, 2005, Richard Jones ("Richard"), an employee of DNC, stepped down into the entrance of the Wawona Hotel's boiler room and fell forward, striking his forehead and left arm on the boiler. Id. at ¶¶ 5, 10. The step down into the boiler room is more than twelve inches. Id. at ¶ 10. At the time of the accident, no warnings were posted and lighting inside the boiler room was poor. Id. As a result of the fall, Richard lost consciousness for a brief period of time and suffered a displaced fracture at the radial neck of his left elbow. Id. at ¶ 11.
Under the concession contract, DNC is not free to construct or modify any portion of the Wawona Hotel without first obtaining Defendant's permission and prior written approval of "the location, plans and specifications thereof." Id. at ¶ 15. For any structural or functional changes on the property, a final approval letter by Defendant is necessary under the superintendent's signature. Id. Defendant retains ultimate decisional authority with respect to construction and modifications on the property. Id. at ¶ 16. If Defendant does not approve of a construction project for any reason, then DNC cannot proceed with that project. Id. Further, if Defendant does not pre-approve in writing of the actual construction or modification, Defendant retains the authority to allow the construction to exist or request that DNC remove or re-do/alter the construction. Id.
William Rust ("Rust"), an employee of Defendant, was the project coordinator for Project 3090. Id. at ¶ 18. The purpose of Project 3090 was to stabilize the six main historic structures that comprise the Wawona Hotel complex. Id. at ¶ 17. In 2004, Rust approved a contract modification of the project to pour and install concrete flooring underneath the Wawona Hotel, including the area leading to the boiler room. Id. at ¶ 18. Rust was never provided any plans or specifications for the contract modification prior to his approval and written approval from the Defendant was not provided before the construction began or was completed. Id. Subsequently, a concrete pour created the step into the boiler room. Id. at ¶ 19. Rust inspected and reviewed the construction and condition after the concrete pour and thus had actual notice of the dangerous condition. Id. Although Rust had the control, ability and authority under the concession contract to request that the dangerous condition be changed, rectified, or in some fashion protected against, he failed to do so. Id.
Plaintiffs allege that Defendant negligently owned, controlled, maintained, retained control and designed the boiler room, which caused Richard's injuries and damages. Id. at ¶ 14. Plaintiffs allege that as a result of Richard's injuries caused by the dangerous condition, Jill Jones is deprived of the care, companionship and affection of her husband. Id. at ¶ 26.
Under Federal Rule of Civil Procedure 12(b)(6),a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). As the Supreme Court has explained:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
To avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[.]" Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citations omitted). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
If a Rule 12(b)(6) motion to dismiss is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). In other words, leave to amend need not be ...