United States District Court, N.D. California, San Francisco Division
SEAN J. MACE, Plaintiff,
THE UNITED STATES OF AMERICA, et al., Defendants.
SUMMARY-JUDGMENT ORDER RE: ECF NO. 5758
BEELER United States Magistrate Judge.
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. The defendants have both moved,
separately, for summary judgment. The parties have consented
to magistrate jurisdiction. The court held a hearing on these
motions on February 23, 2017. The court now denies the United
States' motion and partly giants the motion of the F.A.
Bartlett Tree Expert Company.
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. The NPS had neither charged Mr. Mace to
use the park nor personally invited him into the
park. A cone or "seed pod" fell from
the high, dense tree canopy and struck Mr. Mace on the
head. Seed pods of the Araucaria can be
as large as 10 inches by 6 inches and weigh as much as 15
pounds. 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
The Araucaria Trees
parties do not disagree over the trees' relevant
characteristics. Native to Australia, these trees are
considered exotic in Northern California. They are
almost entirely "covered with spikes, [and] thorns,
" making them "extremely difficult to climb"
and work in. The cones rest in a dense, similarly
colored canopy that makes them hard to see. The cone that
hit Mr. Mace was approximately 10 inches by 6 inches, about
the size of a football.
The Defendants' Efforts to Prune the Trees
park is a federal facility that is owned by the United States
and operated by the National Park Service
(NPS). 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. 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
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." 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." 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 .
. ., "
park's NPS unit did not have the resources to assess and
prune the trees itself. 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." 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. In late 2012, NPS staff
noticed seed pods on the ground and again contacted Bartlett
to submit a bid for pruning the trees. Bartlett
again submitted a proposal specifying that it would
"[i]nspect and remove visible large cones from the
trees." Bartlett did this work on February 26,
2013. This was approximately 19 months before
Mr. Mace's accident.
neither contract did Bartlett agree to develop an extended
plan for the NPS to maintain the Araucaria
trees. Nor did Bartlett agree, in either
proposal, to advise the NPS on how to make the
Araucaria stand safer for park
visitors. Both proposals stated that
Bartlett's work would be "done hi accordance with
ANSI A300 Tree Care Standards."
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. 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. 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. 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
is no record proof of an Araucaria cone striking any
other park user before one struck Mr. Mace.
Mace sues the United States for negligence through the
Federal Tort Claims Act (FTCA). He sues Bartlett for
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.
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).
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.
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
The Government's Motion
Governing Law - California's Recreational-Use Statute
(Cal. Civ. Code § 846)
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
Id. Furthermore, "[n]othing in this section
 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  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
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?
court trunks that he has.
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).
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."
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.
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
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)).
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.) 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.
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
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.
Failure to act - R ...