Allen Pangelinan v. United States ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLEN PANGELINAN, No. 17-56822
Plaintiff-Appellant, D.C. No. 3:15-cv-01730-L-KSC
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted May 14, 2019
Pasadena, California
Before: LIPEZ,** WARDLAW, and HURWITZ, Circuit Judges.
Allen Pangelinan appeals from the dismissal of his Federal Tort Claims Act
(FTCA) claim against the United States. We have jurisdiction under 28 U.S.C. §
1291. Our review is de novo. Williams v. Gerber Prods. Co., 552 F.3d 934, 937
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
(9th Cir. 2008). We vacate the judgment of the district court and remand for further
proceedings.
I.
Pangelinan was injured when a tree branch fell on him while he was attending
his son's graduation ceremony at the United States Marine Corps Recruit Depot in
San Diego, California. He sued the United States under the FTCA, alleging that his
injury was caused by the government's negligent maintenance of its property. The
district court dismissed the action, concluding that it was barred because a private
landowner in similar circumstances would be immunized from liability in a similar
suit under California Civil Code § 846 ("section 846"). Under that provision, known
as the Recreational Use Statute, a landowner "owes no duty of care to keep [a]
premises safe for entry or use by others for any recreational purpose." Cal. Civ.
Code § 846(a). The court found that attending a graduation ceremony is a
"recreational purpose" under that section.
II.
The FTCA, under which Pangelinan sues, waives the sovereign immunity of
the United States, see Mattice By & Through Mattice v. U.S. Dep't of Interior, 969
F.2d 818, 820 (9th Cir. 1992), and creates a cause of action for tortious conduct
"under circumstances where the United States, if a private person, would be liable
to the claimant" pursuant to the law of the place where the conduct occurred, 28
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U.S.C. § 1346(b)(1). Under California law, a landowner is generally liable "for an
injury occasioned to another by his or her want of ordinary care or skill in the
management of his or her property." Cal. Civ. Code § 1714(a); see Alcaraz v. Vece,
929 P.2d 1239, 1257 (Cal. 1997). However, section 846 "protects landowners . . .
from liability for negligence to those who enter or use their land for recreational
purposes." Mattice, 969 F.2d at 820–21.
Attending a graduation ceremony is not a "recreational purpose" under section
846. The activities covered by that statute include vigorous "activities such as . . .
sport parachuting . . . animal riding, snowmobiling, . . . [and] hang gliding" as well
as more relaxed activities like "sightseeing, picnicking . . . and viewing or enjoying
. . . sites." Cal. Civ. Code § 846(b). That statutory list is non-exhaustive. See
Ornelas v. Randolph, 847 P.2d 560, 563 (Cal. 1993). In determining whether an
unlisted activity has a "recreational purpose" under section 846, California courts
look to the "nature of the activity" and whether it is "recreational" in the commonly
understood sense of the word. See Jackson v. Pac. Gas & Elec. Co., 114 Cal. Rptr.
2d 831, 834 (Ct. App. 2001) (subsequent history omitted) (concluding that “a kite-
flyer[’s actions] to retrieve his wayward kite” were recreational based on “the nature
of the activity”—“the joy of the sport”); see also Gerkin v. Santa Clara Valley Water
Dist., 95 Cal. App. 3d 1022, 1027–28 (Ct. App. 1979) (looking to “the commonly
understood recreational sense of the word” hiking to determine whether section 846
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applied), disapproved of on other grounds by Delta Farms Reclamation Dist. v.
Superior Court, 660 P.2d 1168, 1173–74 (Cal. 1983); cf. Sebelius v. Cloer, 569 U.S.
369, 376 (2013) ("[S]tatutory terms are generally interpreted in accordance with
their ordinary meaning.").
Attending a graduation ceremony is not "recreational" in the ordinary sense
of the word. "Recreation," as commonly understood, refers to “any form of play,
amusement, or relaxation used for the purpose of refreshment in body or mind such
as games, sports, or hobbies.” United States v. Migi, 329 F.3d 1085, 1088 (9th Cir.
2003) (internal quotation marks omitted) (interpreting “recreation” under 21 U.S.C.
§ 860(e)(1)). In one dictionary, “recreation” is defined as “refreshment by means of
some pastime, agreeable exercise, or the like;" and "a pastime, diversion, exercise, or
other resource affording relaxation and enjoyment." Recreation, Random House
Webster's Unabridged Dictionary (2nd ed. 1997). Similarly, Roget's International
Thesaurus offers "refreshment" and "amusement" as synonyms for "recreation."
Recreation, Roget's International Thesaurus (5th ed. 1992). The purpose of attending
a graduation ceremony, while likely joyous, is not to enjoy oneself, play, or relax.
Instead, a graduation marks an accomplishment. Its purpose is ceremonial or
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commemorative—not recreational. It therefore falls outside the scope of section 846
immunity.1
The judgment of the district court is therefore vacated. We remand for
further proceedings in accordance with this disposition.
1
Because we find that attending a graduation ceremony is not a recreational
purpose under section 846, we do not address Pangelinan's argument that he falls
within section 846's exception for express invitees.
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