                                                                           FILED
                               NOT FOR PUBLICATION                          MAR 23 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT


JEANINE SPENCE,                          )     No. 09-15774
                                         )
      Plaintiff – Appellant,             )     D.C. No. 1:07-CV-00676-LJO-DLB
                                         )
      v.                                 )     MEMORANDUM *
                                         )
UNITED STATES OF AMERICA,                )
                                         )
      Defendant – Appellee.              )
                                         )

                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                               Submitted March 10, 2010 **
                                San Francisco, California

Before:      FERNANDEZ, GRABER, and McKEOWN, Circuit Judges.

      Jeanine Spence appeals the district court’s grant of summary judgment to the

United States in her action under the Federal Tort Claims Act (FTCA). See 28

U.S.C. § 2674. We affirm.

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
       (1)   The district court determined that California’s primary assumption of

the risk doctrine barred Spence’s claim. We agree. Under California law, because

Spence was injured due to a risk inherent in the sport she was engaging in, she is

deemed to have assumed the risk of the injuries she suffered therefrom. See

Knight v. Jewett, 3 Cal. 4th 296, 315–16, 834 P.2d 696, 708, 11 Cal. Rptr. 2d 2, 14

(1992) (plurality opinion); Connelly v. Mammoth Mountain Ski Area, 39 Cal. App.

4th 8, 11–12, 45 Cal. Rptr. 2d 855, 857–58 (1995). In that regard, there can be

little doubt that road hazards are inherent in the sport of organized, long-distance

bike riding. See Moser v. Ratinoff, 105 Cal. App. 4th 1211, 1219–21, 130 Cal.

Rptr. 2d 198, 203–05 (2003); see also Buchan v. U.S. Cycling Fed’n, Inc., 227 Cal.

App. 3d 134, 148, 277 Cal. Rptr. 887, 895 (1991). Spence encountered a road

hazard, took a bad fall, and was injured, but her claim is barred under California

law.

       Moreover, Spence has not shown that the United States violated some

particular legal duty to her when it failed to make the road in question safer for her

purposes. See W. Radio Servs. Co., Inc. v. Espy, 79 F.3d 896, 900–01 (9th Cir.

1996); see also Cheong v. Antablin, 16 Cal. 4th 1063, 1069–70, 946 P.2d 817,

820–21, 68 Cal. Rptr. 2d 859, 862–63 (1997) (where enactment shows no clear

intent to modify assumption of risk principles, they continue to apply); Distefano


                                           2
v. Forester, 85 Cal. App. 4th 1249, 1274, 102 Cal. Rptr. 2d 813, 831 (2001)

(same).

      (2)    The district court also determined that the United States was immune

from suit pursuant to California Civil Code section 846 (recreational use

immunity). Again, we agree. Despite Spence’s argument to the contrary, the

United States is treated as a private person for FTCA purposes. See Ravell v.

United States, 22 F.3d 960, 961 (9th Cir. 1994). In addition, Spence was using the

property for a recreational purpose, and the fact that she was proceeding along a

paved road is of no significance. See Mattice v. U.S. Dep’t of Interior, 969 F.2d

818, 821 (9th Cir. 1992); Hubbard v. Brown, 50 Cal. 3d 189, 192, 197, 785 P.2d

1183, 1184, 1187, 266 Cal. Rptr. 491, 492, 495 (1990). The evidence will not bear

an interpretation that the United States was guilty of willful or malicious conduct.

See Mattice, 969 F.2d at 822. The existence of the hazard was not hidden; in fact,

paint had even been applied to make it more obvious. Moreover, on this record it

cannot be said that the hazard presented a probability of injury to cyclists engaged

in the sport at hand.1 Finally, while the receipt of compensation by the United




      1
         The absence of known incidents over many, many years is not dispositive,
but it is a relevant consideration. See Lostritto v. S. Pac. Transp. Co., 73 Cal. App.
3d 737, 745, 140 Cal. Rptr. 905, 909 (1977).

                                          3
States would have obviated the immunity,2 the evidence will not support a

determination that the United States directly or indirectly charged an entrance fee

for use of the road in question.3

      (3)      Because either of the above bases bars this action, we need not, and do

not, determine whether the release signed by Spence would also bar this action.

      AFFIRMED.4




      2
          See Cal. Civ. Code § 846.
      3
       See Miller v. Weitzen, 133 Cal. App. 4th 732, 739–40, 35 Cal. Rptr. 3d 73,
78–79 (2005) (discussing consideration exception); Johnson v. Unocal Corp., 21
Cal. App. 4th 310, 316–17, 26 Cal. Rptr. 2d 148, 152–53 (1993) (same); Moore v.
City of Torrance, 101 Cal. App. 3d 66, 72, 166 Cal. Rptr. 192, 196 (1979) (same),
disapproved on other grounds in Delta Farms Reclamation Dist. No. 2028 v.
Superior Court, 33 Cal. 3d 699, 710, 660 P.2d 1168, 1175, 190 Cal. Rptr. 494, 501
(1983).
      4
        We have not overlooked the miscellaneous procedural issues raised by
Spence, but have determined that if there were errors, they would not affect the
result.

                                           4
