Klein v. United States ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALAN RICHARD KLEIN, an  No. 06-55510
individual; SHERYLL KLEIN, an D.C. No.
individual, CV-05-05526-PA
Plaintiffs-Appellants,
v.  ORDER
CERTIFYING
UNITED STATES OF AMERICA; DAVID QUESTION TO
ANDERBERG, an individual, SUPREME COURT
Defendants-Appellees.
 OF CALIFORNIA
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
May 7, 2008—Pasadena, California
Filed July 30, 2008
Before: John T. Noonan, William A. Fletcher, and
Ronald M. Gould, Circuit Judges.
ORDER
GOULD, Circuit Judge:
We respectfully ask the Supreme Court of California to
exercise its discretion to decide the certified question pre-
sented below, pursuant to California Rule of Court 8.548. The
answer to this question of California law could be dispositive
of the appeal before us, and no clear controlling California
precedent exists. See id. Moreover, because the question we
9645
9646 KLEIN v. UNITED STATES
certify is of the utmost importance to both California land-
owners and recreational users of California lands, consider-
ations of comity and federalism suggest that the highest court
in California, rather than our court, should have the opportu-
nity to answer this question in the first instance. See Ventura
Group Ventures, Inc. v. Ventura Port Dist., 179 F.3d 840, 843
(9th Cir. 1999).
I. Administrative Information
We provide the following information in accordance with
California Rule of Court 8.548(b)(1):
The caption of the case is Alan Richard Klein and Sheryll
Klein, Plaintiffs-Appellants, v. United States of America and
David Anderberg, Defendants-Appellees, and the case num-
ber in our court is 06-55510.
The name and addresse of counsel for Alan and Sheryll
Klein are David G. Jones, Santiago, Rodnunsky & Jones,
5959 Topanga Canyon Boulevard, Suite 220, Woodland Hills,
CA 91367.
The names and addresses of counsel for the United States
of America and David Anderberg are Julie Zatz and Jonathan
B. Klinck, Assistant United States Attorneys, Federal Build-
ing, Suite 7516, 300 North Los Angeles Street, Los Angeles,
CA 90012.
The name and address of additional counsel for David
Anderberg are Colette Maria Asel, Law Offices of Craig Hart-
suyker, 300 North Brand Boulevard, Suite 950, P.O. Box
29082, Glendale, CA 91209-9082.
If the California Supreme Court grants the request for certi-
fication, Alan and Sheryll Klein should be deemed the peti-
tioners, as they are the appellants before our court.
KLEIN v. UNITED STATES 9647
II. Certified Question
We certify to the California Supreme Court the following
question of state law that is now before us: Does California
Civil Code § 846, California’s recreational land use statute,
immunize a landowner from liability for acts of vehicular
negligence committed by the landowner’s employee in the
course and scope of his employment that cause personal
injury to a recreational user of that land?
The phrasing of the question set forth above should not
restrict the California Supreme Court’s consideration of the
issues involved, and that court may reformulate the question.
We will accept the decision of the California Supreme Court.
See Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1164 (9th Cir.
1995) (holding that the Ninth Circuit is bound by the Califor-
nia Supreme Court’s interpretation of California law).
III. Statement of Facts
On August 29, 2004, Alan Klein (“Klein”) was riding his
bicycle for recreational purposes on Bear Divide Road, a two-
lane paved road located in a mountainous region of Angeles
National Forest in California that is owned and maintained by
the United States government. Tragically, Klein was struck
head-on by an automobile driven by David Anderberg, a part-
time volunteer for the United States Fish and Wildlife Service
(“FWS”) who told the California Highway Patrol that he was
on his way to observe birds for the FWS when the accident
occurred. As a result of the accident, Klein suffered cata-
strophic injuries including a partially severed ear, broken ribs,
a collapsed lung, a brain injury affecting memory and speech,
and a brachial plexis injury that has permanently deprived
him of the use of his left arm. These injuries caused Klein to
be medically retired from his federal government job as an air
traffic controller. Klein’s wife Sheryll also took early retire-
ment from her job as an elementary school principal to help
9648 KLEIN v. UNITED STATES
care for her husband, resulting in severe economic hardship
for the couple.
The Kleins sought to bring a negligence action against the
United States under the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b), on two theories: (1) that the United States main-
tained Bear Divide Road in an unsafe condition and was
therefore negligent, and (2) that the United States was liable
for the vehicular negligence of its volunteer employee, David
Anderberg. After exhausting their administrative remedies by
receiving letters of claim denial from the FWS, the Kleins
filed suit against both the United States and Anderberg in fed-
eral district court in the Central District of California under
Case Number CV-05-05526-PA.
In its answer to the Kleins’ complaint, the United States
disputed that Anderberg was acting in the course and scope of
his government employment when the accident occurred; the
United States further contended that California Civil Code
§ 846, the so-called “recreational land use statute,” shielded
the United States from liability because it owned the Forest
Service land in question and Klein was injured while using
that land for recreational purposes. The United States later
filed a motion for summary judgment which made the same
immunity argument, relying on the California Court of
Appeal decision in Shipman v. Boething Treeland Farms,
Inc., 77 Cal. App. 4th 1424, review denied, 22 Cal. 4th 4318
(2000).
On March 13, 2006, the district court granted the United
States’ motion for summary judgment. Assuming for purposes
of its decision on the summary judgment motion that David
Anderberg was acting within the course and scope of his
employment when the accident occurred, the district court
relied on Shipman, as well as Ornelas v. Randolph, 847 P.2d
560 (Cal. 1993), to hold that the United States as landowner
was immunized from liability for any injuries that Klein suf-
fered as a recreational user of that land, even where those
KLEIN v. UNITED STATES 9649
injuries were caused by the negligent actions of the United
States’ employee. The district court also granted summary
judgment to the United States on Klein’s claim that the road
had been negligently maintained and declined to exercise sup-
plemental jurisdiction over Klein’s state law claims against
Anderberg acting in his individual capacity, which were dis-
missed without prejudice.1 The Kleins timely appealed to our
court on April 3, 2006, and we heard oral argument on May
7, 2008.
IV. Reasons for Certification
The proper scope of California Civil Code § 846 — specifi-
cally, whether its grant of immunity extends to cover the neg-
ligent acts of a landowner’s employees — is an important
question of California law that will have a substantial effect
on landowners in California and on those who use another’s
land, including federal land, for recreation. Although the land-
owner in this case happens to be the United States govern-
ment, the Federal Tort Claims Act, under which the Kleins
brought suit, provides for liability only “where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omis-
sion occured.” 28 U.S.C. § 1346(b)(1). The question for our
appeal thus is whether “a private person” would be liable for
an employee’s vehicular negligence “in accordance with”
California Civil Code § 846 when that negligence causes
injury to a recreational user of the employer’s land.
Because we must answer this question to resolve one of the
issues on which the district court granted summary judgment
to the United States, now on appeal before us, the Supreme
Court of California’s answer to the question, if it accepts cer-
1
The Kleins filed a separate state law action against Anderberg in Los
Angeles County Superior Court under Case Number PC038323 but later
moved to voluntarily dismiss that action with prejudice. The court granted
that motion on August 13, 2007.
9650 KLEIN v. UNITED STATES
tification, “could determine the outcome” of this appeal. See
Cal. R. Ct. 8.548(a)(1). Indeed, it is plain that a decision by
the California Supreme Court on the certified question will
determine the outcome of one of the issues in this appeal—the
summary judgment granted to the defendants on Kleins’ claim
against the United States as employer for Anderberg’s negli-
gent driving. Moreover, although there is some California
case law in this area, we conclude that “no clear controlling
California precedent” squarely addresses the question before
us, Munson v. Del Taco, Inc., 522 F.3d 997, 1000 (9th Cir.
2008), and so certification is also appropriate under California
Rule of Court 8.548(a)(2).
California Civil Code § 846 provides that “[a]n owner of
any estate or any other interest in real property, whether pos-
sessory or nonpossessory, 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 persons enter-
ing for such purpose . . . .” (Emphasis added).2 Focusing on
the words “keep the premises safe,” the Kleins argued on
appeal to us that the plain language of the statute encompasses
only claims of premises liability based on conditions encoun-
tered on the landowner’s property and does not extend to the
tortious actions of third parties. The government of the United
States argues to the contrary, but of course stands before us
under the Federal Tort Claims Act in the same posture as any
landowner in the state of California.
The California Supreme Court has never addressed this
question regarding the scope of immunity granted by the rec-
2
The statute provides three exceptions to this landowner immunity: (1)
cases of “willful or malicious failure to guard or warn against a dangerous
condition, use, structure or activity”; (2) cases where permission to enter
for a recreational purpose “was granted for a consideration”; and (3) cases
involving “any persons who are expressly invited rather than merely per-
mitted to come upon the premises by the landowner.” Cal. Civ. Code
§ 846.
KLEIN v. UNITED STATES 9651
reational land use statute; however, in the 2000 case of Ship-
man v. Boething Treeland Farms, the California Court of
Appeal rejected the Kleins’ interpretation of the statute. Ship-
man involved a 16-year-old boy, Trent Shipman, who was
driving an ATV on a dirt road owned by a nearby tree farm,
for the recreational purpose of looking at a pond, when he was
injured in a collision with a station wagon driven by one of
the tree farm’s employees. 77 Cal. App. 4th at 1426. Shipman
sued both the employee and the landowner/employer, assert-
ing against the landowner claims of negligent supervision and
negligence under a respondeat superior theory, but the trial
court granted summary judgment to the defendants based on
California Civil Code § 846. Id. at 1426-27.
The California Court of Appeal affirmed, concluding that
the protection afforded by the recreational land use statute “is
extremely broad” and covers injuries inflicted by drivers as
well as “dangers presented by the premises per se . . . .” Id.
at 1427. Quoting the 1993 California Supreme Court decision
in Ornelas v. Randolph, the Shipman court went on to hold
that “the landowner’s duty to the nonpaying, uninvited recre-
ational user is, in essence, that owed a trespasser under the
common law as it existed prior to Rowland v. Christian, . . .
443 P.2d 561 [(Cal. 1968)]; i.e., absent willful or malicious
misconduct, the landowner is immune from liability for ordi-
nary negligence.” 77 Cal. App. 4th at 1428 (quoting Ornelas,
847 P.2d at 562) (emphasis added). The appeals court then
cited a decision from the pre-Rowland period holding that
where a commercial truck driver who was a business invitee
and who was backing up to a loading dock in a private alley
injured another driver who was in the alley without the
owner’s permission, the truck driver did not owe a duty of
ordinary care to the other driver, who “occupie[d] the status
of trespasser . . . .” Id. (quoting Kirkpatrick v. Damianakes,
59 P.2d 556, 557 (Cal. Ct. App. 1936)). Thus, the Shipman
court reasoned, the plaintiff could not prevail against the tree
farm owner under either a respondeat superior or a negligent
supervision theory, because “[n]egligence is insufficient to
9652 KLEIN v. UNITED STATES
overcome Civil Code section 846 immunity” and “[i]t would
thwart the purpose of section 846 to permit suits invoking
vicarious liability for the negligent acts of private landowners’
employees where the landowner is absolved of liability under
the statute.” Id. at 1431 (internal quotation marks omitted).
When “there is no relevant precedent from the state’s high-
est court, but . . . there is relevant precedent from the state’s
intermediate appellate court,” we “must follow the state inter-
mediate appellate court decision unless [we] find[ ] convinc-
ing evidence that the state’s supreme court likely would not
follow it.” Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994
(9th Cir. 2007) (emphasis omitted); see also Munson, 522
F.3d at 1002 (certifying a question to the California Supreme
Court, and having that certified question accepted, where our
court was “in doubt about whether the California Supreme
Court would follow” an earlier state intermediate appellate
court decision). Here, we have grave concern that Shipman
did not state California law correctly, and there is “convincing
evidence” that leads us to believe that the California Supreme
Court likely would not follow Shipman. That evidence makes
us hesitant to follow it as well. We are particularly reluctant
to follow Shipman in light of the harsh result that granting
immunity here would create, where Klein’s injuries were so
severe and where he would have been able to seek recovery
for those injuries from Anderberg’s employer3 if that
employer had been anyone but the federal government. How-
ever, because we are “in doubt” about how the Supreme Court
of California would resolve this important question of Califor-
nia law concerning immunity of a landowner for its employ-
ee’s negligent vehicle operation on its land harming a
3
Because the district court assumed for purposes of the United States’
summary judgment motion that Anderberg was acting in the course and
scope of his employment, and because on appeal we view all facts in the
light most favorable to Klein as the nonmoving party, we also assume for
purposes of the appeal and this certification order that Anderberg was act-
ing within the scope of his federal employment when the accident
occurred.
KLEIN v. UNITED STATES 9653
recreational user of such land, we prefer if possible to let that
court speak to the issue rather than making our best prediction
of what it would say. See Munson, 522 F.3d at 1002.
There is nothing in the language of California Civil Code
§ 846, or the circumstances surrounding its enactment, that
would lead us to view it as anything more than a premises lia-
bility exemption statute. Stated another way, nothing in its
language or history would lead us to think that the legislature
aimed to give landowners an immunity from liability for neg-
ligent driving of their agents on their land when that negli-
gence proximately caused damage to a recreational user of
such land.
Moreover, serious questions about Shipman’s continuing
vitality and validity arise from the 2006 California Supreme
Court decision in Avila v. Citrus Community College District,
131 P.3d 383 (Cal. 2006). That case concerned California
Government Code § 831.7, a statute granting immunity to
public entities and public employees for “any damage or inju-
ry” resulting from participation, on public property, “in a haz-
ardous recreational activity.” Id. at 386. In addressing the
provision’s legislative history, the California Supreme Court
explained that Government Code § 831.7 was “modeled on”
California Civil Code § 846. Id. at 389. And, tellingly for our
purposes, the court described that “model” statute as “a prem-
ises liability statute that provides qualified immunity for land-
owners against claims by recreational users.” Id. at 388. The
court further explained that “Civil Code § 846 leaves in place
whatever common law premises liability would exist,” and
then cited to the three exceptions listed in footnote 2 above.
See id. Reviewing California Senate reports “confirm[ed for
the court] that Government Code section 831.7 was designed
to mirror Civil Code section 846’s circumscription of
property-based duties.” Id. at 389 (emphasis added).
After analyzing the legislative history of Government Code
§ 831.7, the court concluded:
9654 KLEIN v. UNITED STATES
Thus, Government Code section 831.7 was adopted
as a premises liability measure, modeled on Civil
Code section 846, and designed to limit liability
based on a public entity’s failure either to maintain
public property or to warn of dangerous conditions
on public property. Nothing in the history of the
measure indicates the statute was intended to limit a
public entity’s liability arising from other duties,
such as any duty owed to supervise participation in
particular activities.
Id. Both the repeated categorization of Civil Code § 846 as a
“premises liability statute” affecting only “property-based
duties” and the parallel drawn between that statute and a pro-
vision explicitly held not to limit the immunized group’s “lia-
bility arising from other [non-premises-related] duties” raise
a probability that the California Supreme Court, if faced with
the question of immunity from claims of employee negligence
presented in Shipman or in this case, would construe § 846
more narrowly than did the California Court of Appeal in
Shipman and more consistently with the premises liability
interpretation advocated by the Kleins.
Furthermore, the earlier California Supreme Court decision
in Ornelas, on which the analysis in Shipman heavily relied,
also described the rationale for Civil Code § 846 in a manner
that invokes the concept of premises liability: “One who
avails oneself of the opportunity to enjoy access to the land
of another for one of the recreational activities within the stat-
ute may not be heard to complain that the property was inap-
propriate for the purpose.” 847 P.2d at 569. Although
elsewhere in the Ornelas opinion the California Supreme
Court stated that “recreationists who take advantage of . . .
access [to others’ property] waive their right to sue for ordi-
nary negligence,” id. at 567, the term “ordinary negligence”
does not necessarily encompass the concept of vicarious lia-
bility for the negligent acts of third parties. Finally, while the
United States is placed in the same position as a private indi-
KLEIN v. UNITED STATES 9655
vidual for purposes of the Federal Tort Claims Act, it is of no
small moment that the federal government owns millions of
acres of National Park and National Forest land within the
state of California. Shielding the United States from liability
for the negligent driving, and possibly for other negligent
acts, of its employees on all of these lands may have substan-
tial and negative consequences for the many residents of and
visitors to California who make use of federal lands for recre-
ational purposes.
The California Supreme Court decided in Avila that the
immunity granted to public4 employees by Government Code
§ 831.7 did not extend to any duties beyond maintaining pub-
lic property and warning of unsafe conditions on that prop-
erty. See 131 P.3d at 389. The Supreme Court of California
should have the opportunity to answer the same question
about the scope of Civil Code § 846, on which Government
Code § 831.7 was modeled, id., and we respectfully ask that
court to answer the certified question so that we in turn may
“apply the existing California law” to the appeal before us.
Munson, 522 F.3d at 1002 (internal quotation marks omitted).
V. Stay and Withdrawal from Submission
All further proceedings in this case before our court are
stayed pending final action by the California Supreme Court,
except for petitions for rehearing or rehearing en banc, or sua
sponte calls for rehearing en banc, relating to this certification
order. The Clerk of our court shall not transmit this order to
the California Supreme Court for its consideration until time
4
The word “public” in this context refers to state, county and municipal
employees and to property owned by those entities. It does not extend to
federal employees or property. See 131 P.3d at 387-88. Moreover, the dis-
cussion of public employees and entities in Avila is irrelevant to the ques-
tion before us because immunity under California law only applies to
claims brought under the Federal Tort Claims Act to the extent that such
immunity would apply to private individuals under state law. See 28
U.S.C. § 1346(b)(1).
9656 KLEIN v. UNITED STATES
has run for any such petitions or calls and, if any such peti-
tions or calls are made, until proceedings relating to such peti-
tions or calls have been completed.
This case is withdrawn from submission until further order
of this court. The parties shall notify the Clerk of this court
within ten (10) days after the California Supreme Court
accepts or rejects certification, and again within ten (10) days
if the California Supreme Court renders an opinion.
In accordance with California Rule of Court 8.548, the
Clerk of this court shall file the original and ten copies of this
order, along with all briefs on appeal to this court and any
record materials as requested, with the Supreme Court of Cal-
ifornia. The Clerk shall also file certificates of service with
the parties to this appeal. Cal. R. Ct. 8.548(c)-(d).
This court retains jurisdiction over any further proceedings
in this case.
It is so ORDERED.
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