Richard Jones v. United States

MEMORANDUM

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. §§ 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…