Pacheco

dissenting:

No judge comes lightly to a tragic case like this one. But the gravity of a case does not change the nature of our duty. I respectfully, and cheerlessly, dissent.

In my view, the state-law question whether Defendants had a duty to warn Plaintiff and his family of the conditions in the ocean off Pfeiffer Beach is controlled by the decision of the California Court of Appeal in Swann v. Olivier, 22 Cal.App.4th 1324 , 28 Cal.Rptr.2d 23 (1994). The plaintiff in Sivann was injured in the surf while attending a beach party. He brought an action alleging that the owner of the beach had failed to warn him of riptides and other hazardous ocean conditions. See id. at 23-24. The court explained that the decisive factor in the case was the “relatively straightforward” one of “where the injury took place and whether the defendants had any duty to warn of hazards in that area.” Id. at 25. After noting the general rule under California law that a landowner “cannot be liable” for “injuries, that occur on property outside one’s ownership, possession or control,” the Swann court held that a beachfront landowner “has no duty to warn of dangers beyond his or her own property when the…

Regardless whether under California law anyone may be responsible for this tragedy, it is absolutely clear that the slightest bit of care, thought, trouble, and expense by the defendants could have saved the lives of the three victims: eleven-year-old Ivy Pacheco and her mother and grandmother, both of whom tried in vain to rescue Ivy from the ocean. The district judge allowed defendants’ motion to dismiss plaintiffs complaint with prejudice based on an interpretation of California law, but admitted at the hearing on the motion to dismiss that the case troubled him as it does us. Because the case was dismissed pursuant to Fed.R.Civ.P. 12(b)(6), we must take the complaint allegations of material fact as true and construe them in the light most favorable to the nonmoving party, here the appellant David Pacheco. Westinghouse Elec. Corp. v. Newman & Holtzinger, P.C., 992 F.2d 932, 934 (9th Cir.1993).

I. BACKGROUND

In April 1997, Mary Pacheco, age 38; her daughter, Ivy; her eight-year-old son, Trevor; and Mrs. Pacheco’s mother, Judith Rombold, age 63, residents of Kansas, drove to Pfeiffer Beach Day Use Area (“Beach”), a public recreational area which is part of the Los Padres…