Valdez

ORDER RE DEFENDANT’S MOTION FOR DISMISSAL OR SUMMARY JUDGMENT

On September 14, 1993, this Court heard defendant’s Motion for Dismissal or Summary Judgment. Upon due consideration of the written and oral arguments of the parties and the record herein, the Motion for Dismissal is granted and the Motion for Summary Judgment is denied for the reasons set forth herein.

I. BACKGROUND

Plaintiff Felix Valdez (“Valdez”) sues defendant United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b) and 2671, et seq., to recover damages for injuries he sustained while hiking in Kings Canyon National Park (“Park”). The United States owns the Park, and the National Park Service (“NPS”) of the Department of the Interior operates it.

Plaintiff worked as a dishwasher and waiter for a concessionaire operating in the Park, where he also resided at the time of the accident. Plaintiffs employer paid for his admission into and use of the Park. On the afternoon of July 25,1991, plaintiff and three companions hiked along Sunset Trail to the pooling area at the base of Ella Falls in the Grant Grove subdistrict of the Park, drinking beer along the way. Rather than crossing the water fall or…