David Pacheco, Individually and as Guardian Ad Litem for Trevor J. Pacheco, a Minor v. United States of America, Paul Kaleth, and Parks Management Company

Citations: 220 F.3d 1126; 2000 Daily Journal DAR 8415; 2000 Cal. Daily Op. Serv. 6308; 2000 U.S. App. LEXIS 18270Docket: 99-15421

Court: Court of Appeals for the Ninth Circuit; July 31, 2000; Federal Appellate Court

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In the case of Pacheco v. United States, the Ninth Circuit Court addressed a tragic incident involving the drowning of eleven-year-old Ivy Pacheco and her family while visiting Pfeiffer Beach, a known public recreational area managed by the defendants, including the United States and Parks Management Company. The court noted that the district judge had previously dismissed the plaintiff’s complaint based on California law, despite expressing concern over the case's merits. 

The background reveals that the Pacheco family, residents of Kansas, visited the beach in April 1997, which is promoted as a beautiful, sandy location but lacks warnings about its dangerous surf conditions, specifically strong riptides and undercurrents. These hazards are not made apparent to visitors, particularly children, who may not recognize the associated dangers. The plaintiff contends that the defendants had actual knowledge of the beach's extreme hazards for over a year prior to the incident and failed to provide necessary warnings, despite previous drowning incidents in the area. The court emphasized that, under the standard for dismissals, the allegations must be viewed favorably towards the appellant, suggesting potential liability on the part of the defendants for their negligence in safeguarding beachgoers.

The Beach operates year-round and includes an entry booth, three parking lots, a restroom, and bulletin boards. Entry fees are $5 for cars, $25 for tour buses, $15 for an annual pass, and $2 for bikes and hikers. At the time of the Pacheco family's visit, the bulletin boards lacked warnings about water dangers. Parks Management employees are trained to engage visitors positively, which inadvertently downplays potential hazards known to the defendants. 

During their visit, the Pachecos received toy buckets upon entry. While Ivy Pacheco was wading in the water, she was caught by a riptide, which also swept away her mother and grandmother as they attempted to rescue her, resulting in all three drowning. The family was unfamiliar with riptide dangers, which can occur even in shallow water.

In the complaint, the plaintiff asserts that the defendants had a duty of care to warn the Pachecos about the dangers of riptides, a risk known to the defendants but not to the victims. The plaintiff claims that if warnings had been provided, Ivy would not have entered the water, making the defendants' negligence the cause of the drownings.

The plaintiff filed a second amended complaint on November 2, 1998, to which the defendants responded with a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The district court held a hearing on February 5, 1999, and ruled on February 12, stating there was no indication from the defendants that the ocean was safe for swimming. It concluded that the defendants did not have a duty to warn against naturally occurring ocean dangers, referencing California law which limits landowners' control over adjacent ocean conditions. The court dismissed the complaint with prejudice, rejecting the plaintiff's alternative liability theories. The plaintiff subsequently filed an appeal.

The term "beach" is defined variably by different dictionaries, with the Oxford American Dictionary describing it as the shore between high and low water marks covered with sand, while Webster's Dictionary provides a broader definition, including a gently sloping shore of an ocean and a stretch of sand for recreational use. The presence of water is emphasized as essential to the concept of a beach, as it facilitates activities like building sandcastles.

In legal terms, a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is subject to de novo review, meaning the appellate court will consider the issue anew. A complaint should only be dismissed if it is clear that the plaintiff cannot establish any set of facts that would support a claim for relief. The appellant's claims involve diversity jurisdiction under 28 U.S.C. § 1332 against Kaleth and Parks Management Company, and claims against the United States are based on the Federal Tort Claims Act (FTCA), which holds the U.S. liable like a private individual under similar circumstances. The applicable substantive law is that of California, as interpreted by its Supreme Court.

The district court's reference to California case law includes the 1994 case Swann, where the plaintiff was injured at a beach party. The court ruled in favor of the defendants, affirming that landowners are typically not liable for injuries occurring on property they do not own or control. It concluded that the defendants had no duty to warn the plaintiff of dangers beyond their property, as they neither created nor controlled the hazards in the ocean, and it would be unreasonable to expect them to control the adjacent waters.

In the case of Princess Hotels International, Inc., decided by the California Court of Appeals in 1995, a couple who were hotel guests in Mexico experienced a tragic incident while swimming at a public beach nearby. One individual was killed and the other injured due to ocean currents. The court ruled that the hotel had no duty to warn guests about these dangers, as it had no control over the ocean and merely derived commercial benefits from its guests. The court emphasized that the ocean is not under human control and held the swimmers responsible for their own injuries.

In contrast, the California Supreme Court's 1997 decision in Alcaraz examined a landlord's potential liability regarding hazardous conditions on adjacent property. Alcaraz was injured after stepping on a broken water meter box on city-owned land near his landlord's property. The trial court initially ruled in favor of the landlord due to a lack of ownership or control over the meter box. However, the court of appeals reversed this decision, indicating the existence of a triable issue regarding the landlord's actual or apparent control over the adjacent premises and the foreseeability of injury.

The California Supreme Court ultimately affirmed the appellate decision but based its ruling on different grounds. The court underscored that a landowner's duty to maintain safe conditions extends even when the hazardous condition is caused by something not owned or controlled by them. It stated that if a known hazard exists on property in a landlord's possession, the landlord must take reasonable measures to protect individuals from that danger, which could include posting warnings or erecting barricades, rather than eliminating the hazard itself.

In Alcaraz, evidence indicated that the landlord treated a disputed city strip of land as his own, regularly maintaining it, which led the court to find a viable factual issue regarding the landlord's control and potential duty to warn. The court criticized the consideration of commercial benefit in assessing liability, aligning with its interpretation of past cases like Swann and Princess Hotels International. The California Supreme Court deemed the Swann ruling—exonerating private beach owners from liability for ocean-related injuries—as consistent with Alcaraz, which reinforced that ownership or control of adjacent areas is crucial for establishing duty. The court referenced Husovsky v. United States, where the D.C. Circuit ruled that the U.S. government had a duty to protect passers-by from hazards on foreign-owned land that it maintained. Alcaraz noted that the U.S. government's visible control implied a duty of care. Unlike Swann, where the defendants did not create hazards, the current case involved a landowner whose actions—distributing toys and providing inadequate warnings about water dangers—did create risks for children. The court acknowledged the need to follow California law while hinting at the flexibility in application, noting that its ruling does not set a legal precedent within California.

The situation presents elements akin to civil entrapment, where the defendants may have impliedly encouraged visitors to enter the ocean by providing perforated plastic buckets, which could suggest safety in water play. The California Court of Appeals previously established that a landowner's duty of care extends to avoiding unreasonable risks of injury off-site if their property creates such risks. The Pachecos allege that the defendants controlled beach access, as the only route to the ocean is through the Beach, which is monitored by posted rules and regulations. Despite these regulations, there were no warnings about the dangers of playing in the water during the Pachecos' visit, indicating a significant oversight of safety protocols. Additionally, the Beach is staffed by employees of Parks Management Company, who are responsible for enforcing rules and ensuring visitor safety. The defendants are contractually obligated to protect visitors from foreseeable hazards on the Beach and adjacent areas, further underscoring their responsibility in this matter.

The facts presented support a claim against the defendants for failing to warn the Pachecos of a dangerous condition after inviting children to play near the water by providing toy buckets. Ivy Pacheco was wading in the surf, not swimming, and the defendants were aware of the associated dangers yet did not inform visitors. Their control of the beach area was evident, as the public could only access the beach by paying a fee, and there were no indicators that their responsibility ended at the high water mark. While the defendants could not remove ocean hazards, they could fulfill their duty by posting warnings on their property. It remains a triable issue whether the defendants controlled the water adjacent to the beach, which differs from controlling the ocean itself. The court did not resolve questions of control or liability but noted that the appellant had presented sufficient facts to overcome a motion to dismiss. Consequently, the district court's dismissal of the plaintiff's complaint is reversed, and the case is remanded for further proceedings. A dissenting opinion references the California Court of Appeal's decision in *Swann v. Olivier*, which held that landowners are not liable for injuries occurring in adjacent ocean areas they do not control. The dissent argues that the defendants should not be held responsible for hazards in the ocean, as they did not create those dangers.

The case is resolved based on the precedent set in Swann, where the plaintiff, Ivy Pacheco, was engaged in shallow water activities when she was swept away by a riptide. The defendants are not liable under California law because they neither created nor controlled the dangerous riptide, negating any duty to warn about it. The majority opinion diverges from Swann by asserting that the defendants implicitly invited Pacheco and her family to play in the surf, thereby incurring a duty to warn, and that the defendants controlled the surf area. However, these arguments were previously deemed irrelevant in Swann, which established that an invitor is only liable for injuries if the hazardous condition was within their control. The court reiterated that an invitation to swim does not automatically create a duty to warn about ocean hazards. Furthermore, the control over beach access does not equate to control over the ocean waters beyond the high tide line. Swann articulates a clear standard for ocean injury cases, stipulating that a defendant has no duty to warn for injuries occurring seaward of the mean high tide line unless they have altered the ocean area itself. The original complaint does not state a valid claim under current California law, and the court's role is to apply existing law rather than speculate on potential changes. Therefore, the judgment of the district court should be affirmed.