                                                                                  FILED
                            NOT FOR PUBLICATION                                   FEB 19 2013

                                                                            MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICHARD JONES; JILL JONES,                        No. 11-16609

              Plaintiffs - Appellants,            D.C. No. 1:08 cv-1137-AWI

  v.
                                                  MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Anthony W. Ishii, Senior District Judge, Presiding

                      Argued and Submitted December 4, 2012
                             San Francisco, California

Before:       D.W. NELSON, TASHIMA, and MURGUIA, Circuit Judges.

       Plaintiffs Richard and Jill Jones appeal from the district court’s order

dismissing their second amended complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). The district court held that Plaintiffs failed to state a claim

against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§§ 1346(b), 2671-2680. Under the FTCA, the government’s liability is measured

against the liability of a private party in the forum state where the wrong is alleged

to have occurred. 28 U.S.C. § 2674. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      Richard Jones was injured while working as a porter at the Wawona Hotel

and Annex (the “Wawona”), located in Yosemite National Park. Mr. Jones was

employed by DNC Parks & Resorts at Yosemite, Inc. (“DNC”), an independent

contractor that operated the Wawona pursuant to a Concession Contract with the

National Park Service. Mr. Jones suffered the injuries underlying this suit when he

fell from a 12-inch step leading into the Wawona’s boiler room.

      1.     Retained Control

      Plaintiffs assert that they do not allege a negligence claim under a theory of

“negligent exercise of retained control,” and that the Privette line of cases does not

apply here. Even had Plaintiffs based their negligence claim on this theory,

however, the claim would not survive the government’s motion to dismiss because

the National Park Service’s inaction in merely permitting the dangerous condition

to persist did not rise to the level of affirmative contribution necessary to sustain a

claim of negligent exercise of retained control. It is settled law that merely

permitting a dangerous condition to persist does not rise to the level of affirmative


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contribution necessary on the part of the hiring party to sustain a claim of negligent

exercise of retained control. See Hooker v. Dep’t of Transp., 38 P.3d 1081, 1091-

92 (Cal. 2002; Tverberg v. Fillner Constr., Inc., 136 Cal. Rptr. 3d 521, 527 (Ct.

App. 2012).

      2.      Premises Liability

      Plaintiffs’ allegations similarly do not support a claim of premises liability.

The district court did not err in holding that Plaintiffs failed to state a claim for

premises liability because they did not allege that DNC “[did] not know and could

not reasonably [have] ascertain[ed] the condition” of the unsafe step. Kinsman v.

Unocal Corp., 123 P.3d 931, 940 (Cal. 2005). Under these circumstances, the

district court properly dismissed Plaintiffs’ premises liability claim.

      AFFIRMED.




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