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Mace v. United States

United States District Court, N.D. California, San Francisco Division

March 23, 2017

SEAN J. MACE, Plaintiff,


          LAUREL BEELER United States Magistrate Judge.


         This is a personal-injury suit against the United States and a private contractor for injuries that the plaintiff suffered while visiting the San Francisco Maritime National Historical Park.[1] The defendants have both moved, separately, for summary judgment.[2] The parties have consented to magistrate jurisdiction.[3] The court held a hearing on these motions on February 23, 2017.[4] The court now denies the United States' motion and partly giants the motion of the F.A. Bartlett Tree Expert Company.


         1. The Accident

         On October 12, 2014, plaintiff Sean Mace sat on the ground in the San Francisco Maritime National Historical Park, reading, drinking coffee, and socializing beneath a stand of five Araucaria bidwilii, or "false monkey-puzzle" trees.[5] The NPS had neither charged Mr. Mace to use the park nor personally invited him into the park.[6] A cone or "seed pod" fell from the high, dense tree canopy and struck Mr. Mace on the head.[7] Seed pods of the Araucaria can be as large as 10 inches by 6 inches and weigh as much as 15 pounds.[8] The pod that struck Mr. Mace caused serious injury. As a result of the accident, Mr. Mace suffered a "traumatic brain injury" with "neurologic failure" and underwent a partial craniotomy[9]

         2. The Araucaria Trees

         The parties do not disagree over the trees' relevant characteristics. Native to Australia, these trees are considered exotic in Northern California.[10] They are almost entirely "covered with spikes, [and] thorns, " making them "extremely difficult to climb" and work in.[11] The cones rest in a dense, similarly colored canopy that makes them hard to see.[12] The cone that hit Mr. Mace was approximately 10 inches by 6 inches, about the size of a football.[13]

         3. The Defendants' Efforts to Prune the Trees

         The park is a federal facility that is owned by the United States and operated by the National Park Service (NPS).[14] It is open to the public, free of charge, and is near other popular San Francisco tourism destinations. The NPS knew that the park's Araucaria trees presented a hazard. More exactly the NPS knew that the trees' seed pods could weigh from 10 to 15 pounds and would occasionally fall to the ground.[15] There is some dispute over the extent of this risk - including, specifically over the frequency with which seed pods would fall to the ground. The NPS claims that, according to its staff's observations, cones fell to the ground at a rate of less than one cone per tree per year.[16]

         In 2007 the NPS hired Costello's Tree Seivices to assess all the trees hi the park. Costello's (which is not a party to this suit) reported that the Araucaria trees were hi a condition that rated 3 on a scale of 1 to 5, and recommended that they be "safety pruned."[17] Following the Costello report, NPS staff reached a "best guess" that they should line someone to address the trees - to remove dead branches, for example, and visible cones - eveiy "[t]wo to three years."[18] This estimate was based on the staff's "observations of. . . how frequently [they] observed [seed-pod] remnants on the ground and perhaps [by] extrapolating from [what they knew about] other pine trees . . ., "[19]

         The park's NPS unit did not have the resources to assess and prune the trees itself.[20] It thus obtained a proposal from Bartlett to "[p]rune" the Araucaria trees and, most saliently, to "[i]nspect and remove visible large cones from the trees."[21] This was in December 2009; the following month, using an aerial lift to access the tree canopy Bartlett removed the "visible large" seed pods from the trees.[22] In late 2012, NPS staff noticed seed pods on the ground and again contacted Bartlett to submit a bid for pruning the trees.[23] Bartlett again submitted a proposal specifying that it would "[i]nspect and remove visible large cones from the trees."[24] Bartlett did this work on February 26, 2013.[25] This was approximately 19 months before Mr. Mace's accident.

         In neither contract did Bartlett agree to develop an extended plan for the NPS to maintain the Araucaria trees.[26] Nor did Bartlett agree, in either proposal, to advise the NPS on how to make the Araucaria stand safer for park visitors.[27] Both proposals stated that Bartlett's work would be "done hi accordance with ANSI A300 Tree Care Standards."[28]

         The parties seem to agree that pruning these trees presented a challenge even for Bartlett. They also both recognize that the dense Araucaria canopy hides many cones from view.[29] Consequently, the parties seem to recognize that the specific contractual task that Bartlett took on - removing the "visible large cones" - was appropriate to the situation.[30] For, as Bartlett points out, if you can't see a cone, you can't remove it. There is no dispute, then, that it would have been unrealistic to expect that eveiy cone could be seen and removed.[31] Neither the United States' expert witness, nor Mr. Mace's, could say that the particular cone that struck Mr. Mace was on the tree in February 2013.[32]

         There is no record proof of an Araucaria cone striking any other park user before one struck Mr. Mace.

         4. The Claims

         Mr. Mace sues the United States for negligence through the Federal Tort Claims Act (FTCA).[33] He sues Bartlett for negligence.[34]


         The court must giant a motion for summary judgment if the movant shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49.

         The party moving for summary judgment has the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, "the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) ("When the nonmoving party has the burden of proof at trial, the moving party need only point out 'that there is an absence of evidence to support the nonmoving party's case.'") (quoting Celotex, 477 U.S. at 325).

         If the moving party meets its initial burden, the burden shifts to the non-moving party to produce evidence supporting its claims or defenses. Nissan Fire & Marine, 210 F.3d at 1103. The non-moving party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows there is a genuine issue of material fact for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to show a genuine issue of material fact, the moving party is entitled to summary judgment. See Celotex, 477 U.S. at 323.

         In ruling on a motion for summary judgment, inferences drawn from the underlying facts are viewed hi the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         1. The Government's Motion

         1.1 Governing Law - California's Recreational-Use Statute (Cal. Civ. Code § 846)

         The United States argues that it is immune from Mr. Mace's negligence claim as a matter of law under California's recreational-use statute (Cal. Civ. Code § 846). This statute "protects landowners and other interest-holders . . . from liability for negligence to those who enter or use their land for recreational purposes." Mattice ex rel. Mattice v. U.S., Dep 't of Interior, 969 F.2d 818, 820-21 (9th Cir. 1992). Section 846 applies to the NPS because the FTCA waives sovereign immunity "only to the extent that a private person would be liable" under governing law - in this case, California's. Id. at 820. The recreational-use law provides that a landowner "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 such premises" to visitors. See Id. (quoting Cal. Civ. Code § 846). A "recreational purpose, " as § 846 defines that term, "includes activities such as . . . sightseeing, picnicking, . . . and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites." Cal. Civ. Code § 846. The key part of § 846 is the immunity that it extends to landowners:

An owner of any estate ... in real property . . . who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for that purpose, or . . . (c) assume 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 section.

Id. Furthermore, "[n]othing in this section [846] creates a duty of care or ground of liability for injury to person or property." Id. The only relevant exception to § 846 immunity is the following: "This section [846] does not limit the liability which otherwise exists . . . for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity . . . ." Id. (emphasis added).

         1.2 Analysis

         There is no dispute that, on the day of his accident, Mr. Mace was in the park "recreating" within the meaning of this statute. There is also no dispute that he was otherwise in the class of recreational users to whom a landowner generally owes no duties under § 846: The NPS did not personally invite Mr. Mace into the park, and it did not charge him to use the park. See Cal. Civ. Code § 846. To this point, then, § 846 immunity should bar Mr. Mace's claim against the NPS. The pivotal question is whether Mr. Mace's claim falls within § 846's relevant exception. That is to say, has Mr. Mace raised a genuine issue for trial that the NPS willfully or maliciously failed to guard or warn against the danger that the Araucoria trees presented?

         The court trunks that he has.

         "To establish willful misconduct under California law, a plaintiff must show that the defendant: (1) had actual or constructive knowledge of the peril; (2) had actual or constructive knowledge that injury was probable, as opposed to possible; and (3) consciously failed to act to avoid the danger." Mattice, 969 F.2d at 822. Willfulness under § 846 does not require subjective ill intent. See New v. Consol. Rock Prods. Co., 171 Cal.App.3d 681 691-92 (1985).

         1.2.1 Known risk

         The first element of this test is met. The NPS knew that the falling Araucaria cones presented a hazard. The chance that a falling cone might strike a park user was exactly why the NPS brought in Bartlett to prune the trees and remove the "visible large cones."

         1.2.2 Probable risk

         The court is further satisfied that the NPS knew that an injury from the Araucaria was "probable, as opposed to possible." More exactly, the court holds that Mr. Mace has raised a triable issue on this point. Conversely put, the court cannot say as a matter of law that the NPS did not know, at least constructively, that the Araucaria seed pods would "probabl[y]" injure someone.

         The probability calculus under § 846 encompasses both the frequency of the risk and the gravity of the potential harm. The § 846 "probability" inquiry, in other words, is not a pure frequency test. Thus, in one § 846 case, the Ninth Circuit could find the frequency with which the accident site was used "much less important" than the seriousness of the danger that the site presented. See Termini v. United States, 963 F.2d 1264, 1269 (9th Cir. 1992) ("That only two vehicles a day typically use the [Forest Service road] spur seems to us much less important than the fact that it abruptly terminates at a cliff").

         "That there were no prior accidents" in which an Araucaria cone struck a park visitor is not decisive. See Lashley v. United States, 2006 WL 2788243, *8 (N.D. Cal. 2006). "California courts have frequently rejected such reasoning, noting that the matter of probability is not to be assessed solely by the number of prior accidents, which adventitiously may have been few, but by all the circumstances." Id. (quoting Termini, 963 F.2d at 1269). "Such circumstances include 'whether there were prior accidents'. . . [, ] defendant's knowledge that persons were engaged in recreational activity at the location . . [, ] and the location of the property itself." Esteban v. United States, 2015 WL 5093786, *6 (N.D. Cal. Aug. 27, 2016) (quoting Manuel v. Pac. Gas & Elec. Co., 173 Cal.App.4th 927, 946 (2009)).

         It is undisputed that the park is located near other popular San Francisco destinations. The NPS knew that park visitors could access the area beneath the Araucaria trees. (Although it seems equally clear that the area beneath the Araucaria stand is not gloomed for sitting; this is in contrast with the lawn and benches in the area immediately abutting these trees.[35]) Furthermore, it is relevant to the § 846 probability assessment that the Araucaria cones presented a hidden danger. See Mattice, 969 F.2d at 822 ("The cases in which we have upheld a claim of willful misconduct under California law have all involved a hidden peril.") (quoted in Esteban, 2015 WL 5093786 at *5). The cones sat in a high, dense tree canopy that hid at least some of them from view - and were in an exotic tree species whose unusual hazard park users in San Francisco might not have appreciated. Even if the cones fall as uncommonly as the NPS says they do, and so might strike someone even more rarely, there is no real dispute that the cones' size and weight meant that the consequences of then hitting a park user could be grave. There is indeed sufficient evidence that the NPS appreciated that these pods could inflict serious harm.

         The court holds that, in these circumstances, Mr. Mace has raised an issue for trial on whether the NPS knew that injury was probable. As Judge Alsup of this court wrote in Lashley:

Here, where the [NPS] knew of the potential for injury in a heavily-visited historic [site], the likelihood of injury might have been 'probable, ' rather than merely 'possible.' Determining whether that likelihood was probable or only possible is a question of fact inappropriate for resolution at summary judgment.

Lashley, 2006 WL 2788243 at *8.

         1.2.3 Failure to act - R ...

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