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Johnson v. United States

*fn* submitted san francisco california: December 14, 1993.

JOHN H. JOHNSON, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-90-01821-CAL. Charles A. Legge, District Judge, Presiding

Before: Lay,*fn* Hall and Thompson, Circuit Judges.

MEMORANDUM

OVERVIEW

John H. Johnson appeals the district court's entry of judgment for the United States of America after a bench trial on his claim for damages under the Federal Tort Claims Act. The district court entered judgment on partial findings pursuant to Federal Rule of Civil Procedure 52. We affirm.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 52 provides that findings of fact made by the district court may be reversed only if clearly erroneous.

Discussion

The district court found that Johnson did not show that either the Veterans' Administration or the Forest Service was negligent, Johnson assumed the risk of his injury, and Johnson's own negligence would bar recovery even if the Forest Service were negligent. Because we affirm on the first ground, it is unnecessary for us to address the other two grounds. Johnson does not appeal the district court's determination that the Veterans' Administration was not negligent.

Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq. (1988 & Supp. 1991), and the facts of this case, the negligence of the Forest Service is determined by California law. 28 U.S.C. § 2674 (1988); Daly v. United States, 946 F.2d 1467, 1469 (9th Cir. 1991). Under California law, a landowner must act reasonably in the management of its property in view of the probability of injury to others on the land. Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 568, 70 Cal. Rptr. 97 (Cal. 1968). A landowner would be negligent in failing to repair or warn of a known concealed condition likely to harm others. Id.

The district court recognized that Johnson could have established negligence by the Forest Service in two ways. First, he could have shown that the Forest Service failed to act reasonably in maintaining and supervising the property by failing to discover the rope swing. Second, he could have shown that the Forest Service knew of the danger created by the presence of the rope swing, but failed to remove it or warn of its existence.

Johnson did neither. He offered no evidence of what the Forest Service did or did not do to manage the property. It cannot be inferred from this lack of evidence that the Forest Service failed to exercise reasonable care to discover the alleged dangerous condition.

Nor did Johnson show that the Forest Service knew the rope swing existed and that it posed a danger to persons on the land. The only evidence Johnson introduced to establish the Forest Service's knowledge of the rope swing was that in 1979 there was a rope swing accident at the Forks Campground beach. It cannot be inferred from this incident that the rope from which Johnson swung and was injured in 1987 was the same rope involved in the campground accident some eight years earlier.

The district court did not clearly err in finding that the Forest ...


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