Richard Jones; Jill Jones v. United States of America

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD JONES; JILL JONES,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 11-16609
D.C. No. 1:08 cv-1137-AWI
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted December 4, 2012
San Francisco, California
Before: D.W. NELSON, TASHIMA, and MURGUIA, Circuit Judges.
Plaintiffs Richard and Jill Jones appeal from the district court’s order
dismissing their second amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). The district court held that Plaintiffs failed to state a claim
against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
FILED
FEB 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§§ 1346(b), 2671-2680. Under the FTCA, the government’s liability is measured
against the liability of a private party in the forum state where the wrong is alleged
to have occurred. 28 U.S.C. § 2674. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
Richard Jones was injured while working as a porter at the Wawona Hotel
and Annex (the “Wawona”), located in Yosemite National Park. Mr. Jones was
employed by DNC Parks & Resorts at Yosemite, Inc. (“DNC”), an independent
contractor that operated the Wawona pursuant to a Concession Contract with the
National Park Service. Mr. Jones suffered the injuries underlying this suit when he
fell from a 12-inch step leading into the Wawona’s boiler room.
1. Retained Control
Plaintiffs assert that they do not allege a negligence claim under a theory of
“negligent exercise of retained control,” and that the Privette line of cases does not
apply here. Even had Plaintiffs based their negligence claim on this theory,
however, the claim would not survive the government’s motion to dismiss because
the National Park Service’s inaction in merely permitting the dangerous condition
to persist did not rise to the level of affirmative contribution necessary to sustain a
claim of negligent exercise of retained control. It is settled law that merely
permitting a dangerous condition to persist does not rise to the level of affirmative

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contribution necessary on the part of the hiring party to sustain a claim of negligent
exercise of retained control. See Hooker v. Dep’t of Transp., 38 P.3d 1081, 1091-
92 (Cal. 2002; Tverberg v. Fillner Constr., Inc., 136 Cal. Rptr. 3d 521, 527 (Ct.
App. 2012).
2. Premises Liability
Plaintiffs’ allegations similarly do not support a claim of premises liability.
The district court did not err in holding that Plaintiffs failed to state a claim for
premises liability because they did not allege that DNC “[did] not know and could
not reasonably [have] ascertain[ed] the condition” of the unsafe step. Kinsman v.
Unocal Corp., 123 P.3d 931, 940 (Cal. 2005). Under these circumstances, the
district court properly dismissed Plaintiffs’ premises liability claim.
AFFIRMED.

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