Unpublished Disposition, 846 F.2d 1382 (9th Cir. 1988)

MEMORANDUM^** 

Malcolm appeals pro se the district court's judgment and dismissal following a bench trial of his Federal Tort Claims Act ("FTCA") lawsuit against the United States. We affirm.

Malcolm first contends that the district court erred by accepting all, and admitting into evidence part, of Exhibit 5 in violation of local court rules. Because Malcolm failed to present this issue first to the district court, we decline to address it. See Andersen v. Cumming, 827 F.2d 1303, 1305 (CA9 1987).

Malcolm next argues that the district court was unduly prejudiced by reading the contents of Exhibit 5, which included the results of an intoxilyzer test that were subsequently ruled inadmissible. A trial judge determines all preliminary questions of evidentiary admissibility, and is not ordinarily bound by the rules of evidence in making such preliminary determinations. FRE 104(a). Absent a showing to the contrary, a trial judge is not deemed to have been prejudiced by his exposure to otherwise inadmissible evidence. See Singleton v. United States, 381 F.2d 1, 4 (CA9), cert. denied, 389 U.S. 1024 (1967); Dedmore v. United States, 322 F.2d 938, 946 (CA9 1963). Cf., United States v. Colacurcio, 499 F.2d 1401, 1405 n. 4 (CA9 1974) (review of matters in camera in bench trial). There was no error on this point. Cf., Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1342 (CA9 1987) (evidentiary rulings reviewed for abuse of discretion and not to be reversed absent showing of prejudice), cert. denied, --- U.S. ----, 108 S. Ct. 785 (1988).

Finally, Malcolm contends that the district court incorrectly applied California's law of comparative negligence to the facts of his case. This contention is also without merit.

Under the FTCA, the liability of the United States is determined "in accordance with the law of the place where the [negligent] act or omission occurred." 28 U.S.C. § 1346(b). Taylor v. United States, 821 F.2d 1428, 1430 (CA9 1987), cert. denied, --- U.S. ----, 56 U.S.L.W. 3680 (U.S. Apr. 4, 1988) (No. 87-1010). Because it is undisputed that the accident occurred in California, California negligence law applies to the facts of this case. See Taylor, 821 F.2d at 1430.

Although the district court noted that the government had been negligent with respect to the presence and condition of the traffic island in question, the court emphasized that there was no connection between the government's negligence and the accident, which the court determined to have been solely the result of Malcolm's own negligence. Because the government's negligence did not constitute "a reasonably close causal connection" with Malcolm's injury, see Wylie v. Gresch, 191 Cal. App. 3d 412, 416, 236 Cal. Rptr. 552, 555 (1987), the district court did not err in finding that the United States was not liable for Malcolm's damages. See Budd v. Nixen, 6 Cal. 3d 195, 200, 491 P.2d 433, 436 (1971). Accord, Armstrong v. United States, 756 F.2d 1407, 1409 (CA9 1985) (proximate causation in FTCA negligence action is question of fact subject to clearly erroneous standard of review).

The decision of the district court is AFFIRMED.