MEMORANDUM OPINION AND ORDER
C. LYNWOOD SMITH, Jr., District Judge.
Plaintiffs, Jason and Elizabeth LeCompte, commenced this action on February 5, 2103, asserting claims for negligence and wantonness against the United States of America for the death of their infant daughter, Bell Divine LeCompte, pursuant to the Federal Tort Claims Act of 1946, 28 U.S.C. § 2671 et seq.1 The case currently is before the court on defendant's motion for summary judgment.2 Upon consideration of the pleadings, briefs, and evidentiary submissions, the court concludes that the motion is due to be denied.
I. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").
II. BACKGROUND
For purposes of summary judgment, the following background facts are undisputed. Plaintiffs, Jason and Elizabeth LeCompte, were camping in a motor home with their six-month-old daughter, Bell Divine LeCompte, and other family members, in the Oak Grove Campground located at Sardis Lake in northern Mississippi on June 13, 2011. The Oak Grove Campground is owned, managed, and operated by the United States Army Corps of Engineers ("The Corps"). During the afternoon hours, an oak tree fell onto the motor home, killing Bell Divine LeCompte.3 Jason and Elizabeth LeCompte seek to hold the United States liable for their daughter's death based on the Corps' alleged negligence and wantonness in maintaining the campground.4
III. DISCUSSION
The United States makes three arguments in support of its motion for summary judgment. First, the government contends that plaintiffs' claims are barred by the discretionary function exception to the Federal Tort Claims Act. Second, the government argues that none of its employees breached any duties owed to plaintiffs. Third, the government asserts that plaintiffs' claims are barred by the Act of God defense. See Eli Investments, LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d 151, 156 (Miss. 2013) ("The Act of God defense is an affirmative defense to the element of causation. `No one is liable for an injury proximately caused by an act of God[.]'. ... An Act of God is an injury due exclusively to forces of nature, without human intervention, which could not have been prevented by the use of due care and reasonable foresight.") (citations omitted) (alteration in original).5
Upon a careful review of the entire file, the court readily concludes that there are genuine issues of material fact with regard to whether the United States breached a duty of care to plaintiffs, and whether plaintiffs' injuries were caused exclusively by forces of nature. The legal issue of whether the discretionary function exception applies will require more detailed discussion.
The Federal Tort Claims Act constitutes a limited waiver of the United States' sovereign immunity, allowing
civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).
The Act incorporates certain statutory exceptions, including the so-called "discretionary function exception." Pursuant to that exception, the Act will not apply to:
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a). The discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984).
The Eleventh Circuit follows a two-part test to determine whether the discretionary function exception applies.
We consider first whether the conduct involves "`an element of judgment or choice,'" OSI, Inc. [v. United States], 285 F.3d [947,] 950[ (11th Cir. 2002)] (quoting [United States v.] Gaubert, 499 U.S. [315,] 322, 111 S. Ct. [1267,] 1273 [(1991)]), which will be the case unless "`a federal statute, regulation, or policy specifically prescribes a course of action embodying a fixed or readily ascertainable standard.'" Hughes v. United States, 110 F.3d 765, 768 (11th Cir. 1997) (quoting Autery v. United States, 992 F.2d 1523, 1529 (11th Cir. 1993)). The conduct need not be "confined to the policy or planning level." Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275.
We then ask whether the judgment or choice is grounded in considerations of public policy, because the "purpose of the [discretionary function] exception is to `prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.'" Id. at 322-23, 111 S. Ct. at 1273-74 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L. Ed. 2d 660 (1984)). "When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a [g]overnment agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Id. at 324, 111 S. Ct. at 1274. Our inquiry does not focus either on the subjective intent of the government agent, id. at 325, 111 S. Ct. at 1275, or on whether the agent actually weighed policy considerations, OSI, Inc., 285 F.3d at 950-51, but "on the nature of the actions taken and on whether they are susceptible to policy analysis," Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275. To succeed, the [plaintiff] must establish "that the challenged actions are not the kind of [discretionary] conduct that can be said to be grounded in the policy of the regulatory regime." Id. Such conduct includes, for example, "dr[iving] an automobile on a mission connected with . . . official duties." Id. at 325 n. 7, 111 S. Ct. at 1275 n. 7.
Cranford v. United States, 466 F.3d 955, 958 (11th Cir. 2006) (alteration to case cites and third textual alteration supplied, other alterations in original).
Defendant asserts that all of the actions it took in maintaining the Oak Grove Campground were discretionary, because there were no violations of mandatory regulations or policies pursuant to which it lacked judgment or choice. See Autrey, 992 F.2d at 1526 ("We must first determine whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment or choice.") (citing Gaubert, 499 U.S. 315, 322). Stated affirmatively, the United States asserts that it always possessed judgment or choice, and that all applicable regulations and policies were permissive and discretionary. The evidence does not support that argument. For example, the Corps' "Public Use Area Safety" policy states:
All buildings, grounds and facilities are inspected on a daily basis by roving ranger patrol and monthly through a critical parts inspection. These inspections are for the purpose of locating any hazards that may pose a threat to life or property. Items to inspect that may constitute a safety hazard are: dead or fallen trees, broken fixtures or jagged edges in restroom facilities, pot holes or unsafe road conditions, assuring that signs, guardrails and fences that could result in injury [sic], check electrical boxes for exposed or frayed wiring, any dangerous conditions are reported to the assistant manager and corrective actions are immediately taken.6
The Corps employees at Sardis Lake actually added to that Safety policy by requiring that "Critical Parts Inspections," or "Critical Parts Inventories," be conducted twice each month during the "recreation season," which lasted from March 1 to October 31 of each year.7 Each Park Ranger was responsible for conducting "Critical Parts Inspections" in one or more assigned recreation areas at Sardis Lake.8 The "Critical Parts Inventory" required a detailed inspection of up to 31 elements of the assigned recreation area.9 The instructions for completing Critical Parts Inspections specifically state that, when inspecting "grounds," a Ranger should look at "trees," with the following instructions: "Limbs should be trimmed to no less than 7 1/2' from the ground. Dead limbs/trees should be removed."10
There is evidence that the Corps did not follow this policy. Prior to June 13, 2011, the date on which plaintiffs' daughter was killed, no Critical Parts Inspections had been performed for the Oak Grove Campground area since August 29, 2010, at the latest.11 Defendant does not dispute the Rangers' failure to conduct formal Critical Parts Inspections during this time period. Instead, defendant asserts that the failure to conduct the formal inspections is irrelevant, because Rangers "in fact inspected the Oak Grove campground daily, especially in the summertime, for any hazards that its employees on the ground could recognize."12 However, those daily inspections, or "Ranger Logs," were more casual and less detailed than the formal Critical Parts Inspections.13 Thus, as plaintiff asserts,
while it is undisputed that park rangers were likely in the Oak Grove campground on a daily basis and had the opportunity to note any hazards that they may have observed while performing their daily patrol, the rangers' mere presence in the campground does not constitute a proper critical parts inspection, as the critical parts inspection is part of the COE safety program, which requires a more thorough and in depth inspection than that which is performed during a ranger's daily patrol.14
At the very least, there are genuine issues of material fact with regard to whether the Critical Parts Inspection policy was mandatory or discretionary, and whether defendant followed that policy at the Oak Grove campground. Thus, this court cannot find, as a matter of law, that the discretionary function exception to the United States' waiver of sovereign immunity applies, and summary judgment cannot be granted in the United States' favor.
IV. CONCLUSION AND ORDER
In accordance with the foregoing, defendant's motion for summary judgment is DENIED. This case will be set for pretrial conference and trial by separate order.
