Niva

concurring:

I concur in the judgment because the magistrate judge failed to take account of the opinion of Niva’s expert, which was otherwise credited, that the peril was hidden. This settles the issue for immunity purposes, but not for purposes of trial on the merits. A trier of fact could well conclude in light of all the evidence that the expert’s opinion is illogical given that the ditch had existed for quite some time yet no other incidents had occurred.

MEMORANDUM *

Eric Austin Niva argues that the district court clearly erred in concluding that the United States Bureau of Land Management (BLM) is entitled to recreational use immunity under Cal. Civil Code § 846 . According to Niva, the BLM had actual or constructive knowledge that injury was probable, rather than possible, as a result of the unfilled ditch on Clear Creek Road (CCR). We agree. Accordingly, we reverse the district court and remand for further proceedings consistent with this decision.

The district court treated the lack of prior accidents on the relevant stretch of CCR as close to dispositive, beginning and ending its discussion of the likelihood of injury with this point. Both our own and California’s precedents, however, make clear that the lack of prior accidents, while probative, is not the end of the matter. See, e.g., Termini v. United States, 963 F.2d 1264, 1269 (9th Cir.1992) (‘We ... reject the United States’ argument that it lacked constructive knowledge ... because no accidents had previously occurred there.”); Isaacs v. Huntington Mem’l Hosp., 38 Cal.3d 112, 125 , 211 Cal.Rptr. 356 , 695 P.2d 653 (1985) (criticizing rule of no liability until one…