Conni Campbell v. United States ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONNI CAMPBELL, No. 17-55100
Plaintiff-Appellant, D.C. No.
3:14-cv-02359-GPC-RBB
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted June 6, 2018**
Pasadena, California
Before: WARDLAW and CHRISTEN, Circuit Judges, and MOLLOY, *** District
Judge.
Conni Campbell appeals the district court’s entry of judgment for the
government, after a bench trial, in her action under the Federal Tort Claims Act.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
1. The district court correctly concluded that Campbell’s California tort
claim fails under the “special benefit” theory of abutting-owner liability, which
provides that “an abutting landowner who has altered an adjacent sidewalk for the
benefit of his property apart from its ordinary use for which it was designed, has a
duty to employ ordinary care in making such alteration and in maintaining that
portion of the sidewalk in reasonably safe condition.” Seaber v. Hotel Del
Coronado, 1 Cal. App. 4th 481, 488 (1991). While a continuing benefit justifies
deviating from the normal rule that “a landowner is under no duty to maintain in a
safe condition a public street or sidewalk abutting upon his property,” id. at 487,
once the benefit ceases, so does the justification for imposing liability, cf. Alcaraz
v. Vece, 14 Cal. 4th 1149, 1173 (1997) (Mosk, J., concurring) (“Liability is
imposed because emplacements of this type are appurtenances for the benefit of
the possessor and controller of adjoining land.”).
Moreover, since the abutting owner’s duty to maintain the alteration under
this theory runs with the land, see City & Cty. of S.F. v. Ho Sing, 51 Cal. 2d 127,
129–30 (1958), extending that duty past the termination of the special benefit
would saddle successor owners with hidden liabilities, without a corresponding
benefit that would put them on notice of their duty to maintain. We do not believe
the California Supreme Court would endorse such an extension. See, e.g., Hewitt
2
v. Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991) (“When the state supreme court has
not spoken on an issue, we must determine what result the court would reach based
on state appellate court opinions, statutes and treatises.”).1
2. However, the district court’s findings of fact require a conclusion that
the government is liable under a second theory: “[A]n abutting landowner has
always had an obligation to refrain from affirmative conduct which results in a
dangerous condition upon public streets or sidewalks.” Seaber, 1 Cal. App. 4th at
488.2 Here, the district court found by a preponderance of the evidence that “the
government built the current fence and tore down the previous one as indicated by
the remaining metal stubs lining the current fence line.” That is, the government
engaged in “affirmative conduct” (demolishing the old fence) that “result[ed] in a
dangerous condition upon public streets or sidewalks” (the jagged stubs that were
1
We also reject Campbell’s argument that she raised a triable issue of fact as to
whether the government exerted control over the strip of land in question, and that
the district court therefore erred by deciding this question at summary judgment.
Even assuming the government weeded the dirt path, “simple maintenance of an
adjoining strip of land owned by another does not constitute an exercise of control
over that property.” Contreras v. Anderson, 59 Cal. App. 4th 188, 198 (1997).
Campbell’s arguments to the contrary are not persuasive.
2
The district court did not address this theory, asserting that Campbell did not raise
it. But Campbell raised it in her trial brief, through quotations from Barton v.
Capitol Mkt., 57 Cal. App. 2d 516 (1943) and Selger v. Steven Bros., 222 Cal. App.
3d 1585 (1990). And although Campbell does not unambiguously press this theory
on appeal, the government has addressed it at some length. We therefore exercise
our discretion to reach it. See Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir.
2004).
3
left behind). Id.The “affirmative conduct” theory is not limited to the temporary spillage of
easily removed materials. See, e.g., Barton v. Capitol Mkt., 57 Cal. App. 2d 516,
518 (1943) (“[T]he owner of premises abutting a sidewalk is under a duty to
refrain from doing any affirmative act that would render the sidewalk dangerous
for public travel.”) (emphasis added). Nor does case law support a temporal
requirement.
Here, the district court’s findings of fact show that the government left the
fencepost stubs in a dangerous condition. That finding is supported by the
testimony of the Navy’s own construction officials, who stated that the way to
demolish the old fence safely would have been to pull the posts out of the soil
completely or grind them down flush to the ground. This was not done.
We therefore reverse the district court’s judgment in favor of the
government, and conclude that the government is liable to Campbell for her injury.
Having determined that the government is liable to Campbell, we remand to the
district court for proceedings to determine the appropriate damage award.
REVERSED and REMANDED.3
3
Costs on appeal are awarded to Campbell.
4
FILED
Campbell v. United States, No. 17-55100
JUL 25 2018
CHRISTEN, Circuit Judge, concurring in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the majority’s decision that reversal is warranted because the
government’s affirmative conduct created a dangerous condition on the sidewalk
that resulted in Campbell sustaining an injury. See Seaber v. Hotel Del Coronado,
1 Cal. App. 4th 481, 487 (1991).