United States District Court, S.D. California
KIANA BOLLINGER, a minor, by and through her Guardian ad litem,
UNITED STATES OF AMERICA, et al., Defendants. JACQUELINE BOLLINGER, Plaintiff,
William Q. Hayes * United States District Court
matter before the Court is the motion for summary judgment
filed by Defendant United States of America. (ECF No. 26).
April 6, 2016, Plaintiff Kiana Bollinger, initiated this
action by filing a Complaint against the United States of
America and Atlantic Power Corporation for negligence
and premises liability. (ECF No. 1). Plaintiff seeks to hold
the United States (“Defendant”) liable for
damages arising from burn injuries she sustained while on
Naval Base San Diego. Id.
October 26, 2017, Defendant filed a motion for summary
judgment. (ECF No. 26). On October 31, 2017, Plaintiff filed
a response in opposition. (ECF No. 33). On November 6, 2017,
Defendant filed a reply. (ECF No. 35).
Court heard oral argument on the motion for summary judgment
on February 8, 2018.
Base San Diego has two parts, commonly referred to as the
‘wet side' and the ‘dry side.'”
Statement of Undisputed Facts (“SUF”), ECF No.
33-5 at ¶ 1. “The movie theater is located on the
wet side of Naval Base San Diego.” Id. ¶
9. “The Navy Exchange is located on the dry side of
Naval Base San Diego.” Id. ¶ 8. Harbor
Drive divides the wet side and dry side of Naval Base San
Diego. Id. ¶ 4. “There is no way to drive
from one side of Naval Base San Diego to the other side
without exiting and then entering the base.”
Id. ¶ 5. A civilian can drive onto the wet side
of Naval Base San Diego through three access points including
the Main Gate (Gate 6), Gate 2, and Gate 7. Id.
July 18, 2015, Plaintiff, her mother (Jacqueline Bollinger),
her brother (Ethan Bollinger), and her boyfriend at the time
(Matthew Brumbaugh) visited Naval Base San Diego.”
Id. ¶ 15. Plaintiff's mother drove them to
the Navy Exchange on the dry side of Naval Base San Diego and
then to the movie theater on the wet side of Naval Base San
Diego. See Id. ¶ 16-19. “To get from the
Navy Exchange to the base movie theater, Jacqueline Bollinger
exited the dry side of Naval Base San Diego, drove down 32nd
Street, and entered the wet side of Naval Base San Diego
through the Main Gate.” Id. ¶ 17.
“32nd Street is not part of Naval Base San Diego; it is
a city street.” Id. ¶ 18.
“Plaintiff was going to see the movie ‘Inside
Out.'” Id. ¶ 21. “Plaintiff was
injured on the wet side of Naval Base San Diego, near the
movie theater.” Id. ¶ 22. Plaintiff did
not pay an entrance fee to enter the Naval Base San Diego on
July 18, 2015. Id. ¶ 23. “No one on
behalf of the United States government invited Plaintiff and
her family to Naval Base San Diego on July 18, 2015.
Id. ¶ 24
deposition of Plaintiff's mother, Jacqueline Bollinger,
Bollinger states that she went to Naval Base San Diego on
July 18, 2015 with Kiana, Matthew, and Ethan. Bollinger
states that she “planned to go to the Exchange and get
some school -- school supplies, school clothes.” (J.
Bollinger Dep., ECF No. 33-3 at 4). Bollinger states that
upon entering Naval Base San Diego, they “went to the
Exchange” where Bollinger purchased pants and school
supplies. Id. at 5. Bollinger states that they spent
“an hour and a half, close to two hours” at the
Navy Exchange and then went to the food court. Id.
at 6. Bollinger states,
We were eating, and while we were eating we were deciding
like what are we gonna do after here? Do we -- you know. So
then I was like, well, let me see what kind of movies are
playing today. So I went on my phone and I went to MWR San
Diego Theaters, and I start scrolling through, and I noticed
that there was a movie coming up in like a half hour or so.
And so I asked them, Do you guys want to go to the movies?
And they said yeah. So we went over there -- so then we just
left straight there and went to the movies. I wasn't sure
if it was going to be like a long wait or not. So we just
went straight to the movies.
Id. at 7. Jacqueline Bollinger states in her
deposition, Q. At the time you made the decision to go to the
movies, where were you physically at that time?
A. Physically when we decided to go to the movies?
Q. Yeah. What location?
A. We were eating at the food court.
Q. Okay. And on your way to the movie theater, I believe you
testified that you had to exit one of the gates at the ...