United States v. 2010-03-23 | 09-15774 | JEANINE SPENCE V. USA | nonprecedential | memorandum…

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously finds this case suitable for decision without oral**
argument. Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEANINE SPENCE, ) No. 09-15774
)
Plaintiff – Appellant, ) D.C. No. 1:07-CV-00676-LJO-DLB
)
v. ) MEMORANDUM*
)
UNITED STATES OF AMERICA, )
)
Defendant – Appellee. )
)
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted March 10, 2010**
San Francisco, California
Before: FERNANDEZ, GRABER, and McKEOWN, Circuit Judges.
Jeanine Spence appeals the district court’s grant of summary judgment to the
United States in her action under the Federal Tort Claims Act (FTCA). See 28
U.S.C. § 2674. We affirm.
FILED
MAR 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
(1) The district court determined that California’s primary assumption of
the risk doctrine barred Spence’s claim. We agree. Under California law, because
Spence was injured due to a risk inherent in the sport she was engaging in, she is
deemed to have assumed the risk of the injuries she suffered therefrom. See
Knight v. Jewett, 3 Cal. 4th 296, 315–16, 834 P.2d 696, 708, 11 Cal. Rptr. 2d 2, 14
(1992) (plurality opinion); Connelly v. Mammoth Mountain Ski Area, 39 Cal. App.
4th 8, 11–12, 45 Cal. Rptr. 2d 855, 857–58 (1995). In that regard, there can be
little doubt that road hazards are inherent in the sport of organized, long-distance
bike riding. See Moser v. Ratinoff, 105 Cal. App. 4th 1211, 1219–21, 130 Cal.
Rptr. 2d 198, 203–05 (2003); see also Buchan v. U.S. Cycling Fed’n, Inc., 227 Cal.
App. 3d 134, 148, 277 Cal. Rptr. 887, 895 (1991). Spence encountered a road
hazard, took a bad fall, and was injured, but her claim is barred under California
law.
Moreover, Spence has not shown that the United States violated some
particular legal duty to her when it failed to make the road in question safer for her
purposes. See W. Radio Servs. Co., Inc. v. Espy, 79 F.3d 896, 900–01 (9th Cir.
1996); see also Cheong v. Antablin, 16 Cal. 4th 1063, 1069–70, 946 P.2d 817,
820–21, 68 Cal. Rptr. 2d 859, 862–63 (1997) (where enactment shows no clear
intent to modify assumption of risk principles, they continue to apply); Distefano

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The absence of known incidents over many, many years is not dispositive,1
but it is a relevant consideration. See Lostritto v. S. Pac. Transp. Co., 73 Cal. App.
3d 737, 745, 140 Cal. Rptr. 905, 909 (1977).
3
v. Forester, 85 Cal. App. 4th 1249, 1274, 102 Cal. Rptr. 2d 813, 831 (2001)
(same).
(2) The district court also determined that the United States was immune
from suit pursuant to California Civil Code section 846 (recreational use
immunity). Again, we agree. Despite Spence’s argument to the contrary, the
United States is treated as a private person for FTCA purposes. See Ravell v.
United States, 22 F.3d 960, 961 (9th Cir. 1994). In addition, Spence was using the
property for a recreational purpose, and the fact that she was proceeding along a
paved road is of no significance. See Mattice v. U.S. Dep’t of Interior, 969 F.2d
818, 821 (9th Cir. 1992); Hubbard v. Brown, 50 Cal. 3d 189, 192, 197, 785 P.2d
1183, 1184, 1187, 266 Cal. Rptr. 491, 492, 495 (1990). The evidence will not bear
an interpretation that the United States was guilty of willful or malicious conduct.
See Mattice, 969 F.2d at 822. The existence of the hazard was not hidden; in fact,
paint had even been applied to make it more obvious. Moreover, on this record it
cannot be said that the hazard presented a probability of injury to cyclists engaged
in the sport at hand. Finally, while the receipt of compensation by the United1

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See Cal. Civ. Code § 846.2
See Miller v. Weitzen, 133 Cal. App. 4th 732, 739–40, 35 Cal. Rptr. 3d 73,3
78–79 (2005) (discussing consideration exception); Johnson v. Unocal Corp., 21
Cal. App. 4th 310, 316–17, 26 Cal. Rptr. 2d 148, 152–53 (1993) (same); Moore v.
City of Torrance, 101 Cal. App. 3d 66, 72, 166 Cal. Rptr. 192, 196 (1979) (same),
disapproved on other grounds in Delta Farms Reclamation Dist. No. 2028 v.
Superior Court, 33 Cal. 3d 699, 710, 660 P.2d 1168, 1175, 190 Cal. Rptr. 494, 501
(1983).
We have not overlooked the miscellaneous procedural issues raised by4
Spence, but have determined that if there were errors, they would not affect the
result.
4
States would have obviated the immunity, the evidence will not support a2
determination that the United States directly or indirectly charged an entrance fee
for use of the road in question.3
(3) Because either of the above bases bars this action, we need not, and do
not, determine whether the release signed by Spence would also bar this action.
AFFIRMED.4

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