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Friday, June 7, 2019


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Ninth Circuit: Attendance at Graduation Is Not a ‘Recreational’ Activity

Panel Resuscitates Action by Man Injured While Attending Commencement Exercises on Federal Property, Says California Immunity Statute Doesn’t Come Into Play


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has reversed the dismissal of an action for negligent maintenance of property brought against the federal government by a man who was injured when a heavy tree branch fell on him at his son’s graduation from boot camp at the Marine Corps Recruit Depot in San Diego, holding that a California immunity statute does not apply.

A memorandum opinion by a three-judge panel, filed Wednesday, orders reinstatement of the action by Allen Pangelinan, brought under the Federal Tort Claims Act. That act provides for government liability “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

The law of California, District Court Judge M. James Lorenz of the Southern District of California declared in April 11, 2016, provides landowner immunity, citing Civil Code §846(a). The section provides that, in general, a landowner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose.”

That dismissal was without prejudice. Pangelinan filed an amended complaint claiming liability based on being an “express invitee”; Lorenz on Dec. 2, 2016, found that approach lacking in merit, and dismissed with prejudice.

Panel’s Opinion

In its memorandum opinion, a three-judge panel said in a footnote that because it was holding that attending a graduation is not “recreational,” there was no need to discuss whether Pangelinan was an “express invitee.”

The opinion declares:

“Attending a graduation ceremony is not ‘recreational’ in the ordinary sense of the word. ‘Recreation,’ as commonly understood, refers to ‘any form of play, amusement, or relaxation used for the purpose of refreshment in body or mind such as games, spoils, or hobbies’…In one dictionary, ‘recreation’ is defined as ‘refreshment by means of some pastime, agreeable exercise, or the like:” and “a pastime, diversion, exercise, or other resource affording relaxation and enjoyment.’…Similarly, Roget’s International Thesaurus offers ‘refreshment’ and ‘amusement’ as synonyms for ‘recreation.’…The purpose of attending a graduation ceremony, while likely joyous, is not to enjoy oneself, play, or relax. Instead, a graduation marks an accomplishment. Its purpose is ceremonial or commemorative—not recreational. It therefore falls outside the scope of section 846 immunity.”

Oral Argument

At oral argument on Tuesday, May 14, in Pasadena, Ninth Circuit Judge Kim Wardlaw made clear that she did not regard attending a graduation as recreation because she would be attending her son’s commencement exercises that Friday and viewed it as a chore. She remarked:

“It’s not going to be refreshing for me; it’s going to be a lot of effort because it’s my son who’s graduating, so it’s a duty, an obligation. But it’s not something that’s going to cause me to relax after this whole week of court week.

“It’s going to be another obligation that I have to do.”

However, after a visiting jurist on the panel—Fifth Circuit Judge Kermit V. Lipez, sitting by designation—commented that the subjective view of a person entering private land as to whether the activity is recreational should be regarded as immaterial, Wardlaw indicated agreement.

Hurwitz’s Questioning

The third member of the panel was Ninth Circuit Judge Andrew Hurwitz. As is customary when he is on a panel, he did most of the talking at the proceeding.

A few seconds after Assistant U.S. Attorney Thais-Lyn Trayer began addressing the panel, Hurwitz queried:

“Do people really go to graduations for recreation?”

She began to answer, “I think they do, and certainly—,” but was cut off by his interjecting:

“ ‘Refreshments, drinks and spirits after work’ is what Miriam-Webster says.”

Thayer got out the word, “Well” before Hurwitz continued:

“ ‘Means of refreshment, diversion, a hobby.’ Really?”

Wardlaw repeated her observation that attending a graduation is a “duty,” and Trayer declared:

“Very much to the contrary, your honor, this is a celebration of an extraordinary accomplishment. The Marine Corps can mail the certificates to all these recruits.

“There’s actually no other purpose to be on the land other than recreational purposes. The entire week’s worth of events are meant to celebrate what these recruits have accomplished.”

Hypothetical Posed

Hurwitz, an Arizona Democrat appointed in 2012 by then-President Barack Obama, posed a hypothetical of his attending a presidential inauguration. He said:

“I may get pleasure from it because I voted for the president, I may not get pleasure from it because I’m unhappy. But is that recreation—is it a hobby?”

Trayer responded that California decisions say that the immunity “statute should be construed quite broadly.”

Hurwitz posed another hypothetical: that California authorities had constructed shoddy bleachers which collapsed, causing injuries. He asked:

“Immunity? Yes or no?”

Thayer said, “Your honor, to be clear, the United States welcomes—”

Hurwitz interrupted:

“The United States is a wonderful institution. The Marine Corps, God bless them. You don’t need to go through any of that.

“There’s no attack on them. This is a hypothetical.”

Trayer attempted to discuss the immunity statute. Hurwitz said:

“No, stop, for a second. As much as you don’t like my hypothetical, your answer to my question must be ‘Yes,’ under your interpretation of the statute, correct?”

She eventually agreed that under the hypothetical, immunity would apply, with Hurwitz remarking that her answer should have been “ ‘Yes,’ in the beginning.”

The case is Pangelinan v. United States, 17-56822.


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