George Garcia, Jr. v. United States , 602 F. App'x 656 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE GARCIA, JR., No. 13-55464
Plaintiff - Appellant, D.C. No. 2:12-cv-00942-PA-FMO
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted February 12, 2015
Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and MOLLOY,** Senior
District Judge.
In this Federal Tort Claims Act action, Plaintiff George Garcia, Jr., claims
that the United States was negligent when it failed to post speed limit signs along a
certain roadway pursuant to a 1987 Bureau of Land Management Recreation Area
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald W. Molloy, Senior United States District Judge
for the District of Montana, sitting by designation.
Management Plan ("RAMP") for the Imperial Sand Dunes Recreation Area. In
2009, Plaintiff was riding his off-road motorcycle across that roadway when he
was seriously injured by a speeding dune buggy. The district court granted the
government’s motion for summary judgment, holding that the action was barred by
(1) the discretionary function exception to the Federal Tort Claims Act and (2) the
primary assumption of risk doctrine under California law. Reviewing de novo, we
reverse and remand. Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir.
2011).
1. The government’s failure to post any 15 MPH signs along the sand
highways in the Imperial Sand Dunes Recreation Area is not a policy choice
protected by the discretionary function exception. The government made an
express policy decision in the RAMP to post the speed limit signs along the sand
highways. See Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536
(1988) (holding that there is no choice to be protected by the discretionary function
exception when a "federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow"). Although carrying out the RAMP’s
directives was contingent on funding priorities, the record contains no evidence
that this was the government’s reason for failing to post any signs. See Marlys
Bear Med. v. U.S. ex rel. Sec’y of Dep’t of Interior, 241 F.3d 1208, 1216 (9th Cir.
2
2001) ("There must be reasonable support in the record for a court to find, without
imposing its own conjecture, that a decision was policy-based or susceptible to
policy analysis."). The government retained some discretion as to how to post the
15 MPH signs, but its failure to post any such signs is not a protected exercise of
discretion. See Navarette v. United States, 500 F.3d 914, 918 (9th Cir. 2007)
(holding that, even though the government "retained discretion as to how to mark
or fence drop-offs," it did not "retain[] discretion whether to do so").
2. The district court erred when it held that Plaintiff assumed the risk of off-
roading as a matter of law, because a genuine issue of material fact remains as to
whether Garcia was engaged in off-roading at the time of the accident. On the one
hand, he was riding an off-road vehicle and performing a "wheelie" on an unpaved
area of sand. On the other hand, he had not yet reached the recreational dunes area.
This issue cannot be decided as a matter of law.
3. We find no other preserved ground in the record to support affirmance.
REVERSED and REMANDED.
3