dissenting.

The majority misconstrues the standard of California Civil Code section 846, exposing landowners who make their property available to the public for recreational uses to liability from which the California legislature meant to exempt them. While the extensive and painful injuries suffered by the young man who is the principal plaintiff evoke compassion, allowing him to recover erodes statutory language and ties the hands of legislators who would stem the tide of tort liability engulfing every facet of modern life.

The majority acknowledges that liability here is governed by a standard higher than negligence, but it does not pause sufficiently to examine the full text and purpose of the statute it construes. Civil Code section 846 is designed to protect from liability property owners who open their land to the public for free recreational use. It consists of five paragraphs, almost all of them exculpatory in tone and meaning. 1 The first *453 paragraph states that, except as provided elsewhere in the section, “[a]n owner of any estate or any other interest in real property ... 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 such premises to persons entering for such purpose____” Cal.Civ.Code § 846 (West 1980). After defining recreational use to include a broad range of outdoor activities in paragraph two, paragraph three elaborates on the warranties a property owner does not make and on the liability he does not assume. Thus, a property owner who allows the public to use his land for recreational purposes “does not thereby ... extend any assurance that the premises are safe for such purpose[s] ... [or] assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted____” Id. The final paragraph provides: “Nothing in this section creates a duty of care or ground of liability for injury to person or property.” Id.

The only portion of section 846 exposing the landowner to liability is the fourth paragraph which provides, in the narrowest terms, that “[t]his section does not limit the liability which otherwise exists ... for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity____” Id. It is on the basis of this exception that the majority imposes liability on the United States for failure to fix a gate on a deserted mountain road in the middle of a million-acre national forest. This appears to be the quintessential case for invoking the protections of section 846.

I cannot interpret section 846, as does the majority, according to rigid formulas encrusted upon the statute by cases dealing with situations entirely different from this one. 2 I would interpret the section in light of its scope and purpose. In passing section 846, the California legislature sought to encourage landowners to open their gates so that the public could enjoy certain recreational uses free of charge. Simpson v. United States, 652 F.2d 831, 833 (9th Cir. 1981). These recreational uses, such as “fishing, hunting, camping, water sports, hiking, spelunking, [etc.]”, by their nature, call for large open areas that must be left in an unimproved or partially improved condition. Making large areas of open land entirely safe could be prohibitively expensive and might impair the land’s natural beauty, undermining its suitability for recreational uses. The legislature therefore gave landowners broad protection: It exempted them from liability for their own negligence, allowing liability only for willful or malicious conduct.

The majority concludes that the conduct of the United States here was “willful or malicious” because the construction of the gate violated safety regulations and because park employees were aware for over a year that the gate was bent about four inches toward the roadway. The court concludes that “the [remaining] safety margin of 9 inches is so inconsequential under these facts as to make it not only probable but certain that injury would follow.” Majority op at 451. I respectfully disagree. *454 In applying the standard of liability, the majority does not sufficiently consider the context in which the accident occurred, a context crucial to the purpose of section 846. The gatepost in question was positioned deep within the Stanislaus National Forest on a road with an average daily traffic of only 70 vehicles, a small portion of which was nighttime traffic. See Bains v. Western R.R., 56 Cal.App.3d 902 , 128 Cal.Rptr. 778 (1976) (no knowledge that injury was probable where traffic at railroad crossing was 187 cars per day). There was no evidence that the gatepost had caused any other injury in the eight years of its prior existence. See id. (one prior accident). Nor was there evidence of similar injury from a gatepost anywhere else in the huge forest.

That the gatepost violated safety regulations and that park rangers were aware it needed fixing adds up to no more than negligence. See Gard v. United States, 594 F.2d 1230 (9th Cir.), cert. denied, 444 U.S. 866 , 100 S.Ct. 138 , 62 L.Ed.2d 90 (1979) (violation of Nevada statute requiring mine owner to keep shaft in good repair was not sufficient to constitute of “willful or malicious failure to guard or warn”). Personnel guarding and maintaining large open areas are, of necessity, spread thin. Mistakes will happen, as they did in this case. But, in passing section 846, the legislature made a deliberate choice to have the public, not the landowner, bear the risk, even when those mistakes amount to negligence. We may not agree with that policy, but as judges, federal judges at that, we are not free to tamper with the state legislature’s considered decision.

In a different context, at a different time, but interpreting very similar statutory language, the California Supreme Court endorsed the following proposition: “ ‘It would be going a great way to say that the failure of the switch tender to throw the switch so that the train would go on the main line was wanton and malicious neglect. The only thing that can be said is that some one was careless____’” Donnelly v. Southern Pac. Co., 18 Cal.2d 863, 872 , 118 P.2d 465 (1941) (quoting Shelton v. Canadian N. Ry., 189 F. 153, 160 (8thCir.1911)). This pretty much sums up the situation here: Someone was careless and nothing more. Confronted with a tragic permanent injury to an innocent youngster, the court fits a square peg into a round hole, labeling careless conduct as “willful or malicious.” In so doing, the majority contributes to the erosion of language and concepts important to the law, undermining the legislature’s effort to limit landowners’ liability and providing fuel for the tort litigation explosion.

I respectfully dissent.

. The section provides:

. None of the cases upon which the majority relies come from the California Supreme Court. There is thus no definitive construction of section 846 to which we must defer. Our responsibility is to interpret state law as would the state’s highest court. Aydin Corp. v. Loral Corp., 718 F.2d 897, 904 (9th Cir. 1983). Interpretations by intermediate appellate courts are instructive, but they are not to be applied mechanically. 19 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4507, at 95 (1982); Williams, McCarthy, Kinley, Rudy & Picha v. Northwestern Natl Ins. Group, 750 F.2d 619 (7th Cir. 1984).