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Bollinger v. United States

United States District Court, S.D. California

February 23, 2018

KIANA BOLLINGER, a minor, by and through her Guardian ad litem,
v.
UNITED STATES OF AMERICA, et al., Defendants. JACQUELINE BOLLINGER, Plaintiff,

          ORDER

          Hon. William Q. Hayes * United States District Court

         The matter before the Court is the motion for summary judgment filed by Defendant United States of America. (ECF No. 26).

         I. BACKGROUND

         On April 6, 2016, Plaintiff Kiana Bollinger, initiated this action by filing a Complaint against the United States of America and Atlantic Power Corporation[1] 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.

         On 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).

         The Court heard oral argument on the motion for summary judgment on February 8, 2018.

         II.FACTS

         “Naval 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. ¶¶ 10-11.

         “On 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

         In the 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 ...

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