Recreation and Parks Law Reporter (RPLR) case report CALIFORNIA CAMPER IMPALED ON FOREST SERVICE GATE
ROST v. UNITED STATES
803 F.2d 448 (1986)
United States Court of Appeals, Ninth Circuit
October 23. 1986
In this case, plaintiff Randy Rost was injured when the camper pickup truck in which he was riding was impaled on a piece of gate in the Stanislaus National Forest, California. The gate was owned by the United States government and anchored on government property. The facts of the case were as follows:
On the night of August 3, 1980, Randy Rost suffered severe physical injuries when the truck in which he was riding came in contact with the point of the horizontal extension of a U.S. Forest Service road closure gate. Rost sat in the back of a flat bed pick-up truck, which was covered by a metal camper shell. He was impaled on the extension as it entered through the front of the passenger's side near the sideview mirror and traveled the length of the truck. Rost was driven out of the rear of the camper shell through the tail gate.
The road closure gate was constructed of steel and consisted of three set posts (a hinge post on the east side of the road, an open post on the east side of the road approximately 20 feet south of the hinge post, a close post on the west side of the road opposite the hinge post), and a 24' crossbar made of steel piping. In the open position, a portion of the crossbar 2-7/8" in diameter extends four feet beyond the open post pointing toward oncoming traffic. If unaltered and correctly secured to the open post, the extension would come within thirteen and one half inches of the edge of the oncoming traffic lane. The gate is dark green, unlighted, without warning signs or markers, located on a curve in the road, and backed up against flora. As such, the gate is effectively camouflaged to drivers of oncoming vehicles.
In his complaint, Rost alleged that Forest Service employees 1) designed and installed the gate without regard to applicable rules or regulations; 2) had responsibility for the maintenance of all road closure gates on Forest Service land; 3) knew that this gate had been bent for at least a year prior to the accident; and 4) failed to repair the gate because of other priorities.
The trial court found that "the design and placement of the gate made it an unsafe and dangerous structure, and that the government willfully failed to guard or warn against the peril it posed." Specifically, the trial court found that "it was foreseeable that vehicles might contact the gate, and that the [Forest] Service knew or should have known that injury would be a probable result of its failure to guard or warn against the danger presented by the design, placement, and bent condition of the gate." The court held further that "Randy Rost was injured as a result of the government's willful misconduct," i.e. the Forest Service's "failure to act to avoid the known danger." (To establish liability under the state recreational use statute, the United States had to be engaged in willful misconduct.) As a result, the trial court awarded damages to Rost totalling $647,532. The United States appealed.
On appeal, the United States argued that "the trial court erred in its application of Section 846." Specifically, the United States contended that "under the facts of this case, the court was required to find that the gate was free-swinging for a sufficient time to charge the government with notice." Otherwise, the United States maintained that "only its negligence would be demonstrated, not willful misconduct." Absent a free swinging-gate, the United States argued that the truck would have had to negligently leave the roadway to contact the gate.
The United States argued further that "its failure to follow safety rules and regulations did not amount to willful misconduct, but mere negligence." According to the United States, "there was no evidence to justify a holding that the design of the gate or its placement made the accident probable."
As noted by the appeals court, "the Federal Tort Claims Act, 28 U.S.C. § 1346(b), provides for government liability on the same conditions as those provided for private persons under state law. Under California law, specifically the state recreational use statute (Section 846), the United States as landowner is liable only for "willful or malicious failure to guard or warn against a dangerous condition." According to the appeals court, California case law defines "willful or malicious failure to guard or warn under Section 846" as follows:
Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with wanton and reckless disregard of the possible results. Several phrases express this standard including: "serious and willful misconduct, wanton misconduct, reckless disregard, recklessness, and combinations of some or all or these." The meaning assigned to willful misconduct by the California courts is any intentional act of an unreasonable character undertaken in disregard of a known risk or a risk so obvious that the actor must be taken to have been aware of it, and so great as to make resulting harm highly probable.
Three essential elements which must be present before a negligent act becomes willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.
Constructive knowledge is measured by an objective standard: whether a reasonable man under the same or similar circumstances as those faced by the actor would be aware of the dangerous character of his conduct. Where an actor's conduct is of an unreasonable character and in disregard of a known risk, or one that should have been known, and that risk is so great as to make it highly probable that harm will follow, we term it willful misconduct and apply to it the consequences and legal rules which we use in the field of intended torts. The actor is not protected because he personally failed to recognize the precise peril posed. His inability to realize the danger may be due to the abnormally favorable results of previous conduct of the same sort. It is enough that he knows or has reason to know of the circumstances which would bring home to the realization of the ordinary, reasonable man the highly dangerous character of his conduct.
Given these definitions of willful/wanton misconduct and constructive knowledge, the issue was whether the United States, under the circumstances of this case, "had actual or constructive knowledge of the peril, and actual or constructive knowledge that probable injury would result from the peril, and consciously failed to act to avoid the injury." If so, the appeals court found that "the statutory requirements [for liability under the state recreational use statute] are met."
Applying these principles to the facts of the case, the appeals court concluded that the trial court had not erred in finding that "the [Forest] Service willfully failed to guard or warn against a known dangerous condition, and that such acts caused Rost's injuries."
The gate was dark green, unlighted, without warning signs or markers, located on a curve in the road, and backed up against flora. As such, it was camouflaged to drivers of oncoming vehicles. The open post was placed thirteen and one half inches from the traveled roadway. The extending piece of the crossbar was bent toward the roadway bringing its "lance-like" point to within 9 inches of the oncoming traffic lane. Service employees knew of the bent condition for at least a year before the accident, yet failed to repair it. The government's expert testified that the extending piece of the crossbar would cut through a camper shell "like a hot knife through butter." Whether the gate was fastened to the open post or free swinging is not critical. The safety margin of 9 inches is so inconsequential under these facts as to make it not only probable but certain that injury would follow...
Even if the truck veered off the roadway for the few inches necessary to contact the point of the crossbar, that fact does not alter the government's willful conduct. The trial court applied California law to the facts and concluded that the government knew or should have known of the peril posed by the gate both in its design and bent condition, had actual or constructive knowledge that injury to a member of the public was probable as a result of its failure to guard or warn against the gate's dangerous condition, and consciously failed to guard or warn against the peril. It is undisputed that 1) the gate was in violation of known safety regulations; 2) Service employees knew of the bent condition of the gate; and 3) the Service consciously failed to act because it had other priorities. Probability is established by all of the circumstances... The condition of the gate presented a foreseeable hazard. Service personnel knew of the danger presented to motorists, and consciously failed to act to avoid the extant peril because of other priorities.
The appeals court, therefore, affirmed the trial court's judgment for plaintiff Rost.