FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES STEINLE, individually and No. 20-15419
as heir to Kathryn Steinle,
deceased; ELIZABETH SULLIVAN, D.C. No.
individually and as heir to 3:16-cv-02859-JCS
Kathryn Steinle, deceased,
Plaintiffs-Appellants,
ORDER AND
v. AMENDED
OPINION
UNITED STATES OF AMERICA,
Defendant-Appellee,
and
CITY AND COUNTY OF SAN
FRANCISCO, a government entity;
JUAN FRANCISCO LOPEZ-
SANCHEZ; ROSS MIRKARIMI,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, Magistrate Judge, Presiding
Argued and Submitted July 7, 2021
San Francisco, California
2 STEINLE V. UNITED STATES
Filed August 24, 2021
Amended November 8, 2021
Before: A. Wallace Tashima and Susan P. Graber, Circuit
Judges, and Kathryn H. Vratil,* District Judge.
Order;
Opinion by Judge Graber
SUMMARY**
Federal Tort Claims Act / California Tort Law
The panel filed a combined order and opinion, amending
the opinion filed on August 24, 2021, denying a petition for
rehearing, denying on behalf of the court a petition for
rehearing en banc, and affirming the district court’s summary
judgment in favor of the United States in plaintiffs’ Federal
Tort Claims Act (“FTCA”) action alleging that the negligence
of a Bureau of Land Management (“BLM”) ranger resulted in
the death of their daughter, Kathryn Steinle.
A gun was stolen from the ranger’s parked car. Four days
later, Ms. Steinle was shot and killed while walking on Pier
41 in San Francisco when Juan Francisco Lopez found the
pistol and fired it. Plaintiffs alleged that the ranger was
*
The Honorable Kathryn H. Vratil, United States District Judge for
the District of Kansas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
STEINLE V. UNITED STATES 3
negligent in failing to store or secure his firearm properly and
in leaving it loaded, in an unattended vehicle in an urban
location where the firearm could be stolen readily.
The panel affirmed the district court’s summary judgment
on the ground that the ranger’s conduct was not the proximate
cause of Ms. Steinle’s death. Applying California law, the
panel concluded that the connection between the ranger’s
storage of the pistol in his vehicle and Ms. Steinle’s death
was so remote that, as a matter of law, the ranger’s acts were
not the proximate or legal cause of the fatal incident. The
panel did not reach the question of whether the ranger owed
a duty of care to Ms. Steinle.
The panel rejected plaintiffs’ reliance on Hernandez v.
Jensen, 61 Cal. App. 5th 1056 (2021), in their petition for
panel rehearing and rehearing en banc. The panel held that
Hernandez was readily distinguishable from this case because
the facts were dramatically different. Here, the criminal and
negligent actions of at least two other people, over a period of
several days, intervened between the ranger’s storage of the
pistol and the death of Ms. Steinle. By contrast, in
Hernandez the negligent storage of the loaded rifle resulted
directly in that plaintiff’s injury.
4 STEINLE V. UNITED STATES
COUNSEL
Valerie T. McGinty (argued), Law Office of Valerie T.
McGinty, San Mateo, California; Frank M. Pitre and Donald
Magilligan, Cotchett Pitre & McCarthy LLP, Burlingame,
California; for Plaintiffs-Appellants.
Shiwon Choe (argued), Assistant United States Attorney;
Sara Winslow, Chief, Civil Division; David L. Anderson,
United States Attorney; United States Attorney’s Office, San
Francisco, California; for Defendant-Appellee.
Sharon Arkin, The Arkin Law Firm, Brookings, Oregon;
Jonathan Lowy, Robert Cross and Christa Nicols, BRADY,
Washington, D.C.; for Amicus Curiae BRADY.
STEINLE V. UNITED STATES 5
ORDER
The Opinion filed on August 24, 2021 is amended by the
Opinion filed concurrently with this Order.
The panel unanimously voted to deny the petition for
panel rehearing. Judge Graber voted to deny the petition for
rehearing en banc and Judges Tashima and Vratil so
recommended. The full court has been advised of the petition
for rehearing en banc, and no judge of the court has requested
a vote. Fed. R. App. P. 35. The petition for rehearing and
rehearing en banc, Docket No. 50, is DENIED. No further
petitions for panel rehearing or rehearing en banc will be
entertained.
OPINION
GRABER, Circuit Judge:
Plaintiffs James Steinle and Elizabeth Sullivan brought
the present action against Defendant the United States
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 1346. They allege that the negligence of Bureau of Land
Management (“BLM”) ranger John Woychowski resulted in
the death of their daughter, Kathryn Steinle.1 The district
court entered summary judgment in favor of Defendant,
concluding that Woychowski owed no duty to Ms. Steinle
and that Plaintiffs failed to establish proximate causation.
1
Plaintiffs brought additional claims against the City and County of
San Francisco, former San Francisco Sheriff Ross Mirkarimi, and Juan
Francico Lopez-Sanchez. We addressed those unrelated matters in Steinle
v. City & County of San Francisco, 919 F.3d 1154 (9th Cir. 2019).
6 STEINLE V. UNITED STATES
Reviewing de novo, King v. County of Los Angeles, 885 F.3d
548, 556 (9th Cir. 2018), we affirm on the ground that
Woychowski’s conduct was not the proximate cause of
Ms. Steinle’s death. We need not and do not reach the
question whether, under California law, Woychowski owed
a duty to Ms. Steinle.
FACTUAL AND PROCEDURAL HISTORY
In 2015, Woychowski worked as a law enforcement
ranger for the BLM, which is part of the United States
Department of the Interior. His duty station was in El Centro,
California. While traveling with his family in their personal
car, en route to Montana, the family stopped for the night in
San Francisco on June 27, 2015. Woychowski parked on the
street along the Embarcadero, a waterfront boulevard popular
with tourists, at about 9:30 p.m. The family walked to a
nearby restaurant. The family’s luggage and other
belongings, including two DVD screens attached to the back
of the seats, were visible to passersby. Among other things,
Woychowski left in the car a loaded, BLM-issued Sig Sauer
P239, in a holster, inside a backpack. The pistol did not have
the trigger lock on it that the BLM had issued to
Woychowski.
Just before 11 p.m., Woychowski and his family returned
to the car. They found the rear passenger windows smashed
and the backpack, along with some other property, gone.
Woychowski reported the theft to police immediately. The
backpack was recovered that night, but the pistol that had
been in it was not.
Four days after the theft, the fatal incident occurred. On
July 1, 2015, Ms. Steinle was walking with her father on
STEINLE V. UNITED STATES 7
Pier 14 near the Embarcadero, about half a mile from where
Woychowski had parked the family car. Juan Francisco
Lopez-Sanchez was sitting on a bench nearby. He found
Woychowski’s pistol, wrapped in a shirt or rag, near where he
was sitting. He bent over and picked up the wrapped pistol;
he fired it; and a bullet ricocheted off the ground, striking and
killing Ms. Steinle.2 It is not known who stole the pistol, how
many people possessed it in the four days between June 27
and July 1, who took the pistol out of the holster and wrapped
it in a shirt or rag (or why they did so), or how the pistol came
to be left near the bench where Lopez-Sanchez found it.
Plaintiffs sued under the FTCA, alleging that
Woychowski was negligent in failing to store or secure his
firearm properly and in leaving it, loaded, in an unattended
vehicle in an urban location where the firearm could be stolen
readily. The district court entered summary judgment in
favor of Defendant, ruling that Woychowski owed no duty to
Ms. Steinle under California law and that Woychowski’s
actions were not a proximate cause of her death. Plaintiffs
timely appeal.
DISCUSSION
Under the FTCA, the United States may be held liable for
“personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government . . . under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of
2
A jury acquitted Lopez-Sanchez, also known as Jose Ines Garcia
Zarate, of murder, manslaughter, and assault, and his conviction for being
a felon in possession of a firearm was overturned. People v. Garcia
Zarate, No. A153400, 2019 WL 4127299 (Cal. Ct. App. Aug. 30, 2019).
8 STEINLE V. UNITED STATES
the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1). Because the alleged negligence occurred in
California, we apply the tort law of California. Miller v.
United States, 945 F.2d 1464, 1466 (9th Cir. 1991) (per
curiam). And we review de novo the district court’s
interpretation of California tort law. Harbeson v. Parke
Davis, Inc., 746 F.2d 517, 521 (9th Cir. 1984).
In California, the “plaintiff in a negligence suit must
demonstrate a legal duty to use due care, a breach of such
legal duty, and the breach as the proximate or legal cause of
the resulting injury.” Vasilenko v. Grace Fam. Church,
3 Cal. 5th 1077, 1083 (2017) (internal quotation marks
omitted). As noted, we do not reach the question whether
Woychowski owed a duty of care to Ms. Steinle. The
required element of legal causation has two components:
“cause in fact and proximate cause.” S. Coast Framing, Inc.
v. Workers’ Comp. Appeals Bd., 61 Cal. 4th 291, 298 (2015).3
Although causation often presents a question of fact for the
jury, “where the facts are such that the only reasonable
conclusion is an absence of causation, the question is one of
law, not of fact.” State Dep’t of State Hosps. v. Super. Ct.,
61 Cal. 4th 339, 353 (2015) (internal quotation marks
omitted). Because the factual causes of an event may be
traced far into the past, the law imposes additional limitations
3
Plaintiffs appear to argue that they need only establish cause in fact.
That is incorrect. Indeed, the very case on which they rely reiterates the
familiar California requirement that, “[t]o prove causation, the plaintiff
must show: (1) that the defendant’s breach of duty was a cause in fact of
his or her injury; and (2) that the defendant’s breach was the proximate,
or legal, cause of the injury.” Union Pac. R.R. Co. v. Ameron Pole Prods.
LLC, 43 Cal. App. 5th 974, 980 (2019). In that case, the issue pertained
only to cause in fact. Id. at 981–86. Here, by contrast, the pivotal issue
is proximate cause.
STEINLE V. UNITED STATES 9
on liability. Those additional limitations relate not only to the
degree of connection between the conduct and the injury, but
also to public policy. Id. The doctrine can bar liability even
when the defendant’s conduct is a factual cause of harm,
depending on the manner in which the injury occurred or the
extent to which the ultimate harm is attenuated from the
breach of duty alleged. Id.; see also PPG Indus., Inc. v.
Transamerica Ins. Co., 20 Cal. 4th 310, 315 (1999) (“To
simply say . . . that the defendant’s conduct was a necessary
antecedent of the injury does not resolve the question of
whether the defendant should be liable.”).
We conclude that the connection between Woychowski’s
storage of the pistol in his vehicle and Ms. Steinle’s death is
so remote that, as a matter of law, Woychowski’s acts were
not the proximate or legal cause of the fatal incident. Several
events—many of which remain unknown—intervened after
Woychowski left the loaded pistol in his vehicle:
(1) someone broke into the locked vehicle; (2) someone stole
a seemingly innocuous backpack; (3) someone found a pistol
in that backpack; (4) someone removed the pistol from its
holster, then wrapped it in a cloth and abandoned or lost it a
half-mile away; (5) Lopez-Sanchez picked up the firearm,
four days later, and fired it, apparently aimlessly; and (6) the
bullet ricocheted off the ground and struck Ms. Steinle.
That “Rube Goldbergesque system of fortuitous
linkages,” Wawanesa Mut. Ins. Co. v. Matlock, 60 Cal. App.
4th 583, 588 (1997), is comparable to the facts in cases in
which California courts have held that proximate cause is
lacking as a matter of law. In Wawanesa, a minor bought two
packs of cigarettes and gave one to a slightly younger minor.
Id. at 585. The minors then trespassed onto a private storage
facility containing stacked telephone poles. Id. As the
10 STEINLE V. UNITED STATES
younger minor smoked, another minor ran into him, causing
him to drop the cigarette, which set fire to the poles. Id. The
company that owned the poles sued the cigarette-purchasing
minor for negligence. Id. at 586. As the Court of Appeal
explained, “the concatenation between [the minor’s] initial
act of giving [the friend] a packet of cigarettes and the later
fire is simply too attenuated to show the fire was reasonably
within the scope of the risk created by the initial act.” Id.
at 588 (emphasis omitted). There was “simply too much
fortuity in the chain.” Id. at 589.
The Court of Appeal similarly concluded that there was
no proximate causation in Shih v. Starbucks Corp., 53 Cal.
App. 5th 1063 (2020). A plaintiff sued Starbucks after she
spilled a cup of hot tea and suffered serious burns; she alleged
that the cup was defective. Id. at 1065. But other mishaps
led to the spill: the plaintiff walked to a table with the drink,
put the drink down, removed the lid, bent over the table,
pushed out her chair, lost her balance, grabbed the table to
avoid failing, and knocked her drink off the table. Id.
at 1070. The court explained why the ultimate injury was too
attenuated from the alleged negligence:
Shih argues that, “but for” the fact the cup
was “too hot and too full” to hold[,] . . . Shih
would not have “attempt[ed] to sip the water
from the cup” in the manner she did. Instead,
Shih presumably would have raised the cup to
her mouth, and therefore would not have
leaned forward, would not have moved the
chair out from under her, would not have lost
her balance, would not have grabbed the table,
and would not have knocked her cup off the
table and spilled hot tea on herself.
STEINLE V. UNITED STATES 11
But that’s a lot of “would not haves,” and
because of that the alleged defects in the drink
were too remotely connected with [Shih’s]
injuries to constitute their legal cause.
Id. at 1068–69 (citations omitted) (emphasis added).
Finally, in Modisette v. Apple, Inc., 30 Cal. App. 5th 136
(2018), a driver using Apple’s FaceTime application on his
iPhone hit the plaintiffs’ vehicle. Id. at 139. The plaintiffs
alleged that Apple had failed to implement a technology that
would have prevented iPhone owners from using FaceTime
while driving at highway speed. Id. at 140. Once again, “the
tenuous connection between Apple’s conduct and [plaintiffs’]
injuries bar[red] a finding of proximate causation.” Id.
at 152. In other words, “the gap between Apple’s design of
the iPhone and the [plaintiffs’] injuries is too great for the tort
system to hold Apple responsible.” Id. at 155 (emphasis
added).
Those three cases illustrate how and why California
courts consider a long chain of events relevant in determining
the presence or absence of proximate causation. A series of
quickly-sequenced mishaps broke the chain of causation
between the design of the Starbucks cup and the serious burns
suffered by the plaintiff. Shih, 53 Cal. App. 5th at 1070.
Similarly, a chain of unanticipated “but-for’s” meant that a
minor’s negligence did not proximately cause a fire that
damaged the plaintiff’s property. Wawanesa Mut., 60 Cal.
App. 4th at 588. And reckless driving superseded Apple’s
design of the iPhone in causing a car accident, even though
the driver had capitalized on his ability to use FaceTime
while on a highway. Modisette, 30 Cal. App. 5th at 139, 152.
Here, too, Ms. Steinle’s death has only a tenuous connection
12 STEINLE V. UNITED STATES
to Woychowski’s storage of the pistol; the criminal and
negligent actions of at least two other people intervened
between those two events.
In the specific context of stolen firearms, other
jurisdictions have approached the proximate-cause analysis
in a similar fashion. In Finocchio v. Mahler, 37 S.W.3d 300,
301 (Mo. Ct. App. 2000), a minor stole a firearm and
ammunition from his friend’s father. The father kept the
firearm and ammunition in a night stand. Id. The next day,
the minor recklessly discharged the firearm and killed a
young woman. Id. at 302. The woman’s mother sued,
arguing that the owner of the firearm was negligent in storing
the weapon in an unlocked drawer without a trigger lock or
other safety device. Id. The court concluded that the plaintiff
had failed to show that any negligence was the proximate
cause of the death. Id. The chain of causation, the court
reasoned, included criminal acts, which were “acts over
which the owner had no control.” Id. at 303–04.
Additionally, in Estate of Strever v. Cline, 278 Mont. 165,
169 (1996), a man left a firearm and ammunition in a bag in
his truck. Four minors opened the truck—it was
unlocked—and found the firearm. Id. One then shot and
killed another, accidentally. Id. The mother of the decedent
sued the owner of the firearm for negligence. Id. at 170. The
Montana Supreme Court concluded that there was no
proximate cause, explaining that “the series of intervening
acts which included two criminal acts and one grossly
negligent act was reasonably unforeseeable and, thereby, cut
off all liability on the part of [the weapon’s owner] for [the
decedent’s] unfortunate death.” Id. at 179.
STEINLE V. UNITED STATES 13
We also note that California courts have relied on the
Restatement (Third) of Torts for guidance in analyzing
proximate causation. See, e.g., Shih, 53 Cal. App. 5th
at 1069; Modisette, 30 Cal. App. 5th at 154. Intervening
criminal acts do not categorically bar liability. Restatement
(Third) of Torts, § 34 cmt. e. But whether an intervening act
is “unforeseeable, unusual, or highly culpable . . . may bear
on whether the harm is within the scope of the risk.” Id.
Here, at least one criminal act (the theft) and at least one
accident (the bullet ricocheting after Lopez-Sanchez
discharged the pistol) occurred after Woychowski left the
pistol in his vehicle. The chain of events resulted in harm
that was simply too attenuated from Woychowski’s initial act
for liability to be imposed.
Plaintiffs contend that tortious or criminal conduct by
third parties does not break causation where the third party’s
conduct was a foreseeable result of the defendant’s initial
negligence. But the cases that Plaintiffs cite do not support
their argument. Plaintiffs rely on two decisions involving
strict products liability, a doctrine that has no relevance here.
Bolger v. Amazon.com, LLC, 53 Cal. App. 5th 431 (2020);
Collins v. Navistar, Inc., 214 Cal. App. 4th 1486 (2013).
Shipp v. Western Engineering, Inc., 55 Cal. App. 5th 476
(2020), does not discuss proximate causation. Nor does
Truck Insurance Exchange v. AMCO Insurance Co., 56 Cal.
App. 5th 619 (2020). Finally, Plaintiffs cite Cordova v. City
of Los Angeles, 61 Cal. 4th 1099 (2015). But that decision
turned on interpretation of a statute establishing that a public
entity could be held liable for injury proximately caused by
a dangerous condition of its property, if the risk of injury was
reasonably foreseeable and the entity could have taken
corrective measures. Id. at 1102. No similar statute
facilitates the imposition of liability here. Plaintiffs otherwise
14 STEINLE V. UNITED STATES
fail to point to authority, and we have found none,
establishing that Woychowski’s conduct was the proximate
cause of the harm.
In their petition for panel rehearing and rehearing en banc,
Plaintiffs rely primarily on Hernandez v. Jensen, 61 Cal.
App. 5th 1056 (2021). Hernandez reiterated the requirement
of California tort law that a plaintiff establish “proximate
cause resulting in injury.” Id. at 1064. The plaintiff in
Hernandez was a home healthcare worker who suffered a
gunshot wound while working in the home of her patients, the
defendant’s elderly mother and father. Id. at 1061. The
plaintiff’s co-worker was removing an oxygen tank from the
bedroom closet, because defendant’s father was short of
breath, when an unsecured, loaded rifle fell out of the closet
and discharged. Id. at 1062. The plaintiff was bathing
defendant’s mother in the bedroom and was struck by a
bullet. Id. The court ruled that substantial evidence
supported the jury’s finding that the defendant’s negligence
was a substantial factor in causing the plaintiff’s harm. Id. at
1061, 1069. As to foreseeability, the court wrote: “It is
foreseeable that a home healthcare worker might accidentally
be shot in a home containing unsecured, loaded firearms.” Id.
at 1066. Hernandez also addressed the jury’s finding of
causation. The court concluded that substantial evidence
supported the finding because the defendant knew that her
father kept several firearms and that the plaintiff’s duties
required her to work throughout the house, but the defendant
failed to take steps to reduce the risk, such as securing the
firearms or warning of their presence. Id. at 1069.
Hernandez is readily distinguishable from the present
case because the facts were dramatically different. Here, as
we have noted, the criminal and negligent actions of at least
STEINLE V. UNITED STATES 15
two other people, over a period of several days, intervened
between Woychowski’s storage of the pistol and the death of
Ms. Steinle. By contrast, in Hernandez the negligent storage
of the loaded rifle resulted directly in the plaintiff’s injury.
In sum, we conclude that Woychowski’s storage of the
pistol was too tenuously connected to Ms. Steinle’s death for
the proximate cause element to be satisfied.
AFFIRMED.