Filed: Jun. 20, 2017
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 20, 2017 _ Elisabeth A. Shumaker Clerk of Court PETER CLARK, Plaintiff - Appellant, v. No. 15-2113 (D.C. No. 1:12-CV-01160-MV-KBM) UNITED STATES OF AMERICA, (D. N.M.) Defendant - Appellee. ––––––––––––––––––––––––––––––––– AILEEEN O’CATHERINE; STEVEN SILVER, individually and as parents and next friends of Noah Silver, a minor, Plaintiffs - Appellants, v. No. 15-2114 (D.C. No. 1:12-CV-0117
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 20, 2017 _ Elisabeth A. Shumaker Clerk of Court PETER CLARK, Plaintiff - Appellant, v. No. 15-2113 (D.C. No. 1:12-CV-01160-MV-KBM) UNITED STATES OF AMERICA, (D. N.M.) Defendant - Appellee. ––––––––––––––––––––––––––––––––– AILEEEN O’CATHERINE; STEVEN SILVER, individually and as parents and next friends of Noah Silver, a minor, Plaintiffs - Appellants, v. No. 15-2114 (D.C. No. 1:12-CV-01176..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 20, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
PETER CLARK,
Plaintiff - Appellant,
v. No. 15-2113
(D.C. No. 1:12-CV-01160-MV-KBM)
UNITED STATES OF AMERICA, (D. N.M.)
Defendant - Appellee.
–––––––––––––––––––––––––––––––––
AILEEEN O’CATHERINE; STEVEN
SILVER, individually and as parents and
next friends of Noah Silver, a minor,
Plaintiffs - Appellants,
v. No. 15-2114
(D.C. No. 1:12-CV-01176-MV-KBM)
UNITED STATES OF AMERICA, (D. N.M.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
_________________________________
In these consolidated cases, the Plaintiffs seek damages against the United
States under the Federal Tort Claims Act (FTCA) for serious injuries sustained while
sledding at the Capulin Snow Play Area, a recreational area managed by the United
States Forest Service within the Cibola National Forest. The Plaintiffs allege that the
Forest Service’s negligence caused their injuries. Concluding that the FTCA’s
discretionary-function exception applied, the district court granted the United States’
motion to dismiss their complaints for lack of subject-matter jurisdiction. The
Plaintiffs appeal, and we affirm.
BACKGROUND
The district court made the following pertinent factual findings:
The Capulin Snow Play Area was constructed in direct response to
numerous snow play and traffic injuries that had occurred along the
highways [in the Cibola National Forest], where members of the public
found unofficial and unsafe sites to engage in snow play activities. The
purpose of the area was to provide a safer alternative for snow play and to
reduce extensive use of roadsides for snowplay activities, which is
extremely dangerous and many serious accidents had occurred in the past.
The slope of the Capulin Snow Play Area followed the natural slope of the
hill. The Forest Service decided to operate Capulin without supervision,
due to limited funding, and it continued to be operated without supervision
at all relevant times. Improvements made to the area in 1989 and the early
1990’s did not alter the snow play slopes. Neither the slope of the snow
play area nor the run out had been altered at the time of the events in
question.
At all material times, the Forest Service posted at the entrance/pay
station and made flyers available to the public notifying visitors that the
area was operated with minimal supervision – to participate at [their] own
discretion and risk. Additionally, signs and flyers advised the public of
safety rules, specifically directing the public to be aware of the elements of
risk in snow play activities, observe signs and warnings, look around before
2
starting down the hill, and maintain control in order to avoid people and
objects. Signs also informed the public that it was the individual sledder’s
responsibility to avoid collisions.1
The Forest Service visited the Capulin Snow Play Area on a daily
basis when the facility was scheduled to be open to assess the amenities and
1
The Plaintiffs argue that “[t]he signage in this case merely read ‘No Snow
Patrol on Duty, Play at Your Own Risk,’” Aplt. Opening Br. at 25, and that “these
signs do not even remotely warn of the hazards present at the recreational area, nor
do they comply with the [Forest Service Manual] mandates,” id. at 33. In their
response to the United States’ motion to dismiss or for summary judgment, however,
the Plaintiffs admitted that the following signs were present:
First, there was “one sign in the parking lot adjacent to a path leading to the
sledding slopes and this sign stated, ‘No Snow Patrol on Duty. Play at your Own
Risk.’” Aplt. App., Vol. 2 at 172. The Plaintiffs claimed that at the time of Mr.
Clark’s accident, this sign was obscured by snow and jackets that had been hung on
the sign.
Second, there were two other signs that read as follows:
CAPULIN SNOWPLAY AREA
For your safety follow these rules
Slide on approved devices only
Allowed: innertubes, plastic discs & plastic sleds
Not allowed: Anything with metal or wood
For your safety no trains two people max per tube or toy
No glass containers on slopes
No alcohol on slopes
Do not make or use jumps
Keep pets on leash and under control
Be considerate of others
Look before you slide
Id.
In addition, it appears undisputed that “flyers were made available notifying
visitors that the area is operated with minimal supervision—to ‘participate at your
own discretion and risk.’”
Id., Vol. 1 at 63.
3
observe the conditions of the slope. During the daily visit, the Forest
Service cleared trash, removed or mitigated large human-made jumps and
natural moguls, checked general snow conditions, and determined whether
to open the area to the public for that day.
In October 2007, an Environmental Assessment was undertaken at
Capulin. The Assessment states that the sliding areas at Capulin were too
steep allowing too much speed and created unsafe and hazardous conditions
for the public. Although the Forest Service began planning to renovate
Capulin as early as 2005, due to competing demands on Forest Service
resources, renovation did not begin until May 2010.
On January 31, 2010, Plaintiff Peter Clark sustained serious injuries
to his back and ankle while sledding with his son at the Capulin Snow Play
Area. Additionally, on December 27, 2009, Noah Silver, the 12 year-old
child of Plaintiffs Aileen O’Catherine and Steven Silver, sustained spinal
cord injuries resulting in partial paralysis, a need for multiple surgeries, and
other serious life changing injuries while sledding at the Capulin Snow Play
Area. As a result of his injuries, Plaintiff Clark filed, under the Federal
Tort Claims Act (“FTCA”), a Complaint for Personal Injury on November
12, 2012, alleging a negligence claim against the United States. Similarly,
as a result of Noah’s injuries, Plaintiffs O’Catherine and Silver filed, under
the FTCA, a Complaint for Personal Injury and Loss of Consortium on
November 15, 2012, alleging both a negligence claim and a claim for loss
of consortium against the United States.
In their Complaints, Plaintiffs allege that the Forest Service breached
its duty to exercise ordinary care such that the Capulin Snow Play Area was
reasonably safe for public use and its duty to warn the public of hidden
dangers. In support of those allegations, Plaintiffs specifically allege that
the Capulin Snow Play Area was operated without supervision; the
man-made pitch to the sled area allowed sleds to travel at an unsafe speed
and contained insufficient “run out” to allow sleds to safely slow down and
stop; and Forest Service employees knew that the public was violating the
rules for use and occupancy of the area.
Aplt. App., Vol. 2 at 201-03 (brackets, ellipses, and internal quotation marks
omitted).
The United States filed a motion to dismiss the complaints or for summary
judgment on the merits of the Plaintiffs’ claims. Alternatively, it moved under
4
Fed. R. Civ. P. 12(b)(1) to dismiss the complaints for lack of subject-matter
jurisdiction. The district court denied the government’s merits motion but granted
the motion to dismiss for lack of subject-matter jurisdiction. The Plaintiffs then
moved for reconsideration, which the district court also denied.
DISCUSSION
1. Appellate Jurisdiction
On September 25, 2014, the district court entered its final judgment of
dismissal. On October 15, 2014, the Plaintiffs filed a timely “Motion for
Clarification and Motion for Reconsideration of Order Granting Summary Judgment,
For Relief From Judgment, or to Alter or Amend the Judgment” (Motion for
Reconsideration), seeking relief under Fed. R. Civ. P. 59 and 60. On June 29, 2015,
the district court denied the Motion for Reconsideration, which it treated as a motion
filed under Fed. R. Civ. P. 59(e). The Plaintiffs had 60 days from that date to appeal
from either the denial of their Motion for Reconsideration, the district court’s
underlying judgment, or both. See Fed. R. App. P. 4(a)(1)(B); 4(a)(4)(A)(v), (vi).
On July 30, 2015, the Plaintiffs timely filed their notices of appeal, within the
60-day time limit. But these notices designated only the district court’s order of June
29, 2015. Thus, the notices did not preserve an appeal from the district court’s
underlying judgment of September 25, 2014. See Fed. R. App. P. 3(c)(1)(B) (stating
notice of appeal must “designate the judgment, order, or part thereof being
appealed”).
5
But on August 13, 2015, still within the 60-day appellate window from the
district court’s order of June 29, 2015, the Plaintiffs filed docketing statements in this
court, giving notice under Fed. R. App. P. 3 that they intended to appeal from the
September 25 judgment. We will treat the docketing statements as the functional
equivalent of an amended notice of appeal. See B. Willis CPA, Inc. v. BNSF Ry.
Corp., 531 F.3d 1282, 1296 (10th Cir. 2008) (treating amended docketing statement
as functional equivalent of second notice of appeal); see also Ayala v. United States,
980 F.2d 1342, 1344 (10th Cir. 1992) (“We have recognized that a docketing
statement . . . filed within the period allotted for filing a notice of appeal may cure
defects in the notice of appeal.”). Thus, we conclude that we have jurisdiction to
review both the district court’s underlying judgment and the denial of the Plaintiffs’
motion for reconsideration.
2. Standards of Review
“We review the district court’s dismissal for lack of subject matter jurisdiction
de novo, and its findings of jurisdictional facts, if any, for clear error.” Esposito v.
United States, 368 F.3d 1271, 1273 (10th Cir. 2004). “Rule 12(b)(1) motions can
take the form of either a facial or a factual attack on the court’s subject matter
jurisdiction.” Ingram v. Faruque,
728 F.3d 1239, 1242 (10th Cir. 2013) (internal
quotation marks omitted). “Where the party challenging subject-matter jurisdiction
mounts a facial attack, the district court must accept the allegations in the complaint
as true.”
Id. (internal quotation marks omitted). “But if the challenging party brings
a factual attack by going beyond allegations contained in the complaint . . . , the court
6
has wide discretion to [consider materials outside the complaint] to resolve disputed
jurisdictional facts.” Id. (brackets, ellipsis, and internal quotation marks omitted).
Here, in reaching its decision, the district court considered materials outside the
pleadings, including affidavits and documents attached to the government’s motion.2
We have considered these materials as well in exercising our review.
We review a court’s decision regarding a Rule 59(e) motion to reconsider for
an abuse of discretion. Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).
2
Where a court considers materials outside the complaint to resolve a
Rule 12(b)(1) motion, its reference to such evidence ordinarily does not convert the
motion to one for summary judgment under Fed. R. Civ. P. 56. But an exception
arises where resolution of the jurisdictional question is intertwined with the merits of
the case. In such cases, a court considering evidence outside the pleadings is
required to convert a Rule 12(b)(1) motion to dismiss into a summary judgment
motion. Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000).
“We have stated, in a number of cases involving the discretionary function
exception to the FTCA, that the determination of whether the FTCA excepts the
government’s actions from its waiver of sovereign immunity involves both
jurisdictional and merits issues.” Id. (internal quotation marks omitted).
“Accordingly, [such a] case should [be] decided on summary judgment rather than as
a 12(b)(1) motion to dismiss.” Id.; see also Garcia v. United States Air Force,
533 F.3d 1170, 1176 (10th Cir. 2008) (treating motion to dismiss involving
discretionary function exception as summary judgment motion where jurisdictional
question was intertwined with merits of case).
Here, however, neither party argues that this case should have been resolved
under a summary-judgment analysis, or that we should apply the summary-judgment
standard of review. Nor does either party point to specific disputes of material fact
involving merits issues that require resolution under a summary-judgment analysis.
Accordingly, we need not consider whether the motion to dismiss should have been
converted to a motion for summary judgment. Cf. Lopez v. United States, 376 F.3d
1055, 1061 (10th Cir. 2004) (rejecting plaintiffs’ argument that district court should
have converted Rule 12(b)(1) motion into motion to dismiss or for summary
judgment, where specific factual disputes identified by plaintiffs were immaterial to
applicability of discretionary function exception, and where, even drawing all
inferences in plaintiffs’ favor, discretionary function exception applied).
7
3. The Discretionary Function Exception
The FTCA authorizes suits against the United States for damages that arise out
of
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).
“Excluded from this waiver of immunity are claims based on the performance
of ‘a discretionary function or duty on the part of a federal agency or an employee of
the Government.’” Garcia v. United States Air Force, 533 F.3d 1170, 1175
(10th Cir. 2008) (quoting 28 U.S.C. § 2680(a)). “This discretionary function
exception poses a jurisdictional prerequisite to suit, which the plaintiff must
ultimately meet as part of his overall burden to establish subject matter jurisdiction.”
Id. (internal quotation marks omitted).
“To determine whether conduct falls within the discretionary function
exception, we apply the two-part test set forth by the Supreme Court in Berkovitz
[ex rel. Berkovitz] v. United States, 486 U.S. 531, 536 . . . (1988).”
Id. at 1176. The
discretionary function exception applies only if both elements of the test are met.
See
id.
First, we ascertain the precise governmental conduct at issue and consider
whether that conduct was discretionary, meaning whether it was a matter of
judgment or choice for the acting employee. Conduct is not discretionary if
a federal statute, regulation, or policy specifically prescribes a course of
8
action for an employee to follow. In this event, the employee has no
rightful option but to adhere to the directive.
If the first element of the Berkovitz test is satisfied, we then consider
the second element—whether the decision in question is one requiring the
exercise of judgment based on considerations of public policy. In so doing,
we do not consider the employee’s subjective intent in exercising the
discretion conferred by statute or regulation, but on the nature of the actions
taken and on whether they are susceptible to policy analysis.
Id. (internal quotation marks omitted).
A. First Part of Berkovitz Test
Concerning the first part of the test, the Plaintiffs cite a number of sections of
the Forest Service Manual (FSM) which they contend created mandatory duties to
address the known hazardous conditions (i) by correcting the conditions, (ii) closing
the affected areas, or (iii) adequately warning about the hazards.3 The district court
3
These sections include the following:
2330.3 – Policy
The basic recreation policies set forth at FSM 2303 and the following
supplementary policies shall govern the development and administration of
sites and facilities. Where it is not possible to achieve the objectives to the
degree defined in this chapter, close sites and facilities to public use.
1. Use recreation opportunity spectrum guidelines . . . when developing
sites.
2. Develop sites and facilities that will provide recreation experiences
toward the primitive end of the spectrum. Do not provide urban class
facilities. . . .
3. Use the land and resource management planning process . . . to reach
decisions to develop recreation sites.
4. Develop sites and facilities to enhance natural resource-based activities
normally associated with a natural environment.
(continued)
9
5. Seriously consider the element of cost efficiency when developing and
operating sites and facilities.
6. Establish priorities for the development and management of sites in the
following order:
a. Ensure public health and safety.
b. Protect the natural environment of the site.
c. Manage and maintain sites and facilities to enhance users’
interaction with the natural resource.
d. Provide new developments that conform to the National Forest
System recreation role.
...
Aplt. App., Vol. 2 at 132-33.
2331.1 – Regulations and Orders
Clearly notify the public of the necessary conditions of occupancy and use
at each individual site. Signs must be positive in tone and explain the
reasons for the regulations.
Initiate firm action against those who knowingly, willfully, or persistently
violate the conditions of occupancy and use. . . . Establish prohibitions by
orders only where there is a demonstrated need and review them on an
annual basis.
Id. at 134.
Section 2331.5 – Site Closures
There are two types of site closures: permanent and temporary.
1. Monitor sites to determine whether it is desirable to continue
operation of the site or to close the site. As part of this monitoring,
consider:
a. The relationship of the site to other Forest Service sites. Are there
other sites nearby that could satisfactorily serve the need?
(continued)
10
b. The relationship of the site to other Federal, State, local, or private
sites. Could the private sector satisfactorily serve the need?
c. Other alternative recreation opportunities.
d. Total overall cost/benefit relationships. Although many variables
affect the costs of operating and maintaining sites, carefully consider
keeping sites open when cost per visitor-day exceeds $1.50.
2. Make every effort to stretch funds as far as possible to keep
needed sites and facilities open to public use. As part of this effort,
consider:
a. Temporary or seasonal closures.
b. The use of volunteer and other human resource programs to staff
and maintain sites.
c. User cooperation in keeping areas clean and sanitary. . . .
d. The users’ health and safety and level of resource damage.
3. Establish priorities under reduced funding levels by closing
lesser-used sites and those sites that have alternative facilities nearby first.
Also consider reducing service or closing the site during the lesser-used
portions of the week or season before full closure of the site.
4. When sites are closed temporarily, install signs explaining why
the site is closed and giving directions to the nearest available facilities.
5. Close the site or facility when conditions reach the point that
users’ health or safety is jeopardized or unacceptable resource damage is
occurring. . . .
Id. at 135-36.
Section 2332.1 – Public Safety
To the extent practicable, eliminate safety hazards from developed
recreation sites. Inspect each public recreation site annually before the
beginning of the managed-use season. Maintain a public record of the
inspections and corrective actions taken with a copy of the operation and
maintenance plan.
(continued)
11
determined that none of these guidelines created a mandatory duty because none of
them required that a snow play area be maintained in any particular way.
The Plaintiffs complain that in reaching this conclusion, the district court
ignored their argument that FSM 1110.3 and 1110.8 govern the interpretation of the
FSM and clarify that it prescribes mandatory duties. These sections read as follows:
When a directive is issued . . . it is the use of the helping verbs “must,”
“shall,” “ought,” “should,” or “may,” or the use of the imperative mood
(where “you” is understood) that determines the force and effect of the
direction . . . . Refer to FSM 1110.8 for guidance on the degree of
compliance and restriction imposed by helping verbs and imperative mood.
FSM 1110.3(3), Aplt. App., Vol. 2 at 151.
Directive authors must choose verbs carefully to ensure that the degree of
compliance is consistent with principles and guidelines for direction at
FSM 1111.1 and 1112.1.
Exhibit 01 explains the degree of compliance as conveyed by various
“helping verbs” as well as by use of the imperative mood.
FSM 1110.8, Aplt. App., Vol. 2 at 152.
Exhibit 01, referred to in FSM 1110.8, describes the mandatory or permissive
effect of various helping verbs used in the FSM, including “must, shall,” “should,
Immediately correct high-priority hazards that develop or are identified
during the operating season or close the site.
Id. at 137.
Section 2333.32 – Site Capacity
Ensure that the capacity of the site matches the desired recreation
opportunity spectrum class and the ability of the site to withstand use.
Id. at 138.
12
ought,” “may not,” “may only,” “may,” “will,” and “can.” Id. at 153. Additionally,
it provides the following guidance concerning the use of imperative verb forms:
Mood of Verb Degree of Compliance or Restriction
imperative Direction written with a verb in the imperative mood is
also mandatory. For example: “Ensure cost-efficient
delivery of services.” In this sentence, the missing
subject is understood to be “you” and the direction
(“ensure cost-efficient delivery of services”) is a direct
command meaning “you shall ensure.” The verb
“ensure”, is in the imperative mood. Where there are
multiple audiences of a directive (such as line officers
and staff officers), use of the imperative verb is
appropriate only if it applies to all segments of the
audience.”
Id.
These rules for the use of helping verbs and the imperative verb form are not
dispositive in determining whether the cited FSM sections specifically prescribe a
course of action for Forest Service employees to follow. This becomes clear when
we consider the example provided above in FSM 1110.8: to “[e]nsure cost-efficient
delivery of services.”
Id. at 153 (emphasis added). Though the imperative form of
the verb “to ensure” is deemed “mandatory” under section 1110.8, the phrase used
actually describes a discretionary duty under the FTCA. This is because the
language does not prescribe a specific course of action for employees to follow.
Instead, it requires the use of discretion to determine how to deliver services in a
cost-efficient manner.
13
Certainly, the Plaintiffs need to point to regulatory language that mandates a
course of action to avoid the first part of the discretionary-function exception. But
the mere use of verb forms that indicate mandatory action is insufficient as a matter
of law for us to infer a non-discretionary function. Where the regulatory language
“mandates” the consideration of alternatives, the weighing of factors, or the
application of policy priorities bounded by practical concerns, the language leaves to
the decisionmaker’s discretion how best to fulfill such “mandatory” priorities. A
regulatory requirement’s mere use of the imperative form of a verb does not take it
outside the exception.
Analyzing the particular sections of the FSM relied upon by the Plaintiffs, we
conclude, for the reasons stated by the district court, see Aplt. App., Vol. 2 at 214-22,
that the record reveals no regulation or policy that prescribes the Forest Service to
follow a specific course of action in maintaining and supervising the Capulin snow
play area. This is true even when we consider the use of verbs that imply mandatory
action, as explained in FSM 1110.3 and 1110.8.
But we see one specific duty prescribed in the FSM that requires further
specific discussion. Section 2332.1 requires that the Forest Service annually inspect
of its recreational sites, and maintain a public record of the inspections. The district
court analyzed this section as follows:
Section 2332.1 also directs the Forest Service to inspect annually its
recreation sites, before the beginning of the “managed use season,” and to
maintain a public record of those actions. Plaintiffs argue that these
directives are mandatory, and that the Forest Service failed to comply with
these directives. This argument, however, misses the point, as the conduct
14
alleged to be negligent and to have caused injury to Noah and Mr. Clark is
unrelated to its failure to conduct or maintain records of annual inspections.
Because any failure of the Forest Service to perform its mandatory duties
regarding annual inspections did not give rise to Plaintiffs’ claims, the
provisions of Section 2332.1 related to annual inspections is inapplicable to
the Court’s determination of the applicability of the discretionary function
exception.
Aplt. App., Vol. 2 at 221.
The Plaintiffs argue that the district court’s causation analysis was
inappropriate at this stage. They contend that a “focus on remoteness and
foreseeability is not relevant to this Court’s analysis under the discretionary function
exception.” Aplt. Opening Br. at 39. But this argument misperceives the district
court’s point.
To circumvent the discretionary function exception, the mandatory duty
alleged must be one whose breach bears a causal relationship to the Plaintiffs’
injuries, thereby giving rise to their cause of action against the government. See, e.g.,
Franklin Savings Corp. v. United States, 180 F.3d 1124, 1132-33 (10th Cir. 1999)
(stating FTCA complaint did not avoid discretionary function exception where,
assuming directive to prepare case memoranda weighing alternatives created
mandatory duty, complaint failed to “attribute any harm to the breach of a specific
mandate to draft memoranda, as opposed to a failure to perform the discretionary
function of weighing options”); cf.
Berkovitz, 486 U.S. at 537 (“[T]he discretionary
function exception insulates the Government from liability if the action challenged in
the case involves the permissible exercise of policy judgment.” (emphasis added)).
15
The Plaintiffs have not demonstrated that the Forest Service’s failure to
annually inspect or to maintain public records of those inspections caused their
injuries. Even if the inspections might have revealed dangerous conditions, as the
district court explained the Plaintiffs have identified only a discretionary duty or
function to determine specifically how to remediate those specific conditions and
thereby potentially avert their injuries. The district court therefore properly
concluded that the duty to perform and document annual inspections did not give rise
to a viable FTCA claim.
B. Second Part of Berkovitz Test
The existence of a regulation that allows a government employee discretion
“creates a strong presumption that a discretionary act authorized by the regulation
involves consideration of the same policies which led to the promulgation of the
regulations.” United States v. Gaubert, 499 U.S. 315, 324 (1991). In other words,
“[w]hen established governmental policy, as expressed or implied by statute,
regulation, or agency guidelines, allows a Government agent to exercise discretion, it
must be presumed that the agent’s acts are grounded in policy when exercising that
discretion.”
Id. As the district court explained, the presumption arose here and has
not been rebutted.
For substantially the reasons stated in its well-reasoned decision, see Aplt.
App., Vol. 2 at 222-27, we affirm the district court’s determination that the second
element of the discretionary function test has been satisfied. Only the Plaintiffs’
16
claim that the Forest Service had a duty to provide further warnings than it did
requires further discussion.
A number of our cases have held that the government’s justification for failing
to warn of known hazards in national parks, recreational areas, or wilderness areas
did not satisfy the second element of the discretionary-function test. See, e.g., Duke
v. Dep’t of Agriculture, 131 F.3d 1407, 1412 (10th Cir. 1997) (“At this stage the
government has not shown how failure to warn or protect from the danger of a
boulder rolling down the man-made slope implicated political, social, or economic
decisions of the sort that the exception was designed to protect.” (internal quotation
marks omitted)); Boyd v. United States,
881 F.2d 895, 898 (10th Cir. 1989) (“An
alleged failure to warn swimmers of dangerous conditions in a popular swimming
area does not implicate any social, economic, or political policy judgments with
which the discretionary function exception properly is concerned. The government’s
alleged omission in this case simply does not involve the exercise of such judgment.”
(internal quotation marks omitted)); Smith v. United States,
546 F.2d 872, 877
(10th Cir. 1976) (“A policy decision to designate certain areas as ‘undeveloped’ ones
may reasonably entail the omission of boardwalks, trails or footpaths and signs
marking such ways. [But] it does not follow that the Government, as a landowner, is
absolved of all duty under state law to erect safety devices or signs cautioning about
conditions which have been left undisturbed as a policy matter.”).
Other duty-to-warn cases, however, have found the second element satisfied.
See, e.g., Elder v. United States, 312 F.3d 1172, 1183 (10th Cir. 2002) (“The Middle
17
Emerald Pools is not a parking lot, but a scenic attraction. . . . Although some
warning signs may be necessary, their number, size, and even content must be
measured against the very purposes of a national park, which include to conserve the
scenery and provide for public enjoyment.” (internal quotation marks omitted));
Kiehn v. United States, 984 F.2d 1100, 1104-05 (10th Cir. 1993) (“[T]he decision not
to place additional warnings at the petroglyph site, whether explicit or implicit, was
part of the overall policy objective set forth in the [Park Service] Management
Policies of carefully using signs so as to minimize their intrusion upon the area’s
natural and historic setting. . . . The decision not to post warning signs in remote
areas of a national monument inherently requires a balancing of public policy
objectives, such as resource allocation, visitor safety and scenic preservation.”
(brackets and internal quotation marks omitted)); Johnson v. United States,
949 F.2d
332, 338 (10th Cir. 1991) (“[T]he Park Service’s decision not to place additional
warnings in the Teton Range, whether explicit or implicit, was part of the overall
policy decision to limit governmental regulation of climbing, educate climbers via
the permit system, and preserve the Park in accordance with the statutory directive. . .
. In the absence of facts indicating the failure to post additional warnings was a
distinct, nonpolicy decision, we conclude that Plaintiff’s failure to warn claim is
barred by the discretionary function exception.”); Zumwalt v. United States,
928 F.2d
951, 955 (10th Cir. 1991) (“[T]he absence of warning signs was part of the overall
policy decision to maintain the Trail in its wilderness state. . . . The Park Service, in
choosing to mark the Trail and place warnings in a corresponding pamphlet,
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undertook a balancing of social, economic, and political policies. Therefore, the
exercise of discretion in determining what safety measures to implement also is
shielded from judicial review by the discretionary function exception.”).
Examining these fact-specific cases, we discern three basic principles that have
guided our analysis:
If the decision not to give a warning flows from a broader policy
decision concerning design or maintenance, then the failure to warn may
be viewed as a policy-based exercise of discretion, see Johnson,
949 F.2d at 338;
Zumwalt, 928 F.2d at 955 (decision not to post warning
signs on trail was a “component of an overall policy decision” to “leave
the Trail in its wild state”); Weiss v. United States, 889 F.2d 937, 940
(10th Cir. 1989) (decision not to warn aviators about tramway cable was
part of discretionary policy choice not to treat objects less than 500 feet
above the ground as an obstruction to aviation).
Where the United States advances a policy of protecting the pristine
quality of a wilderness area it owns or administers as a justification for
failure to warn or to implement safety measures, this court will not
simply assume that this represents a valid policy judgment without
examining the factual context. Compare Duke, 131 F.3d at 1412
(government failed to show how failure to provide warning concerning
boulder rolling down man-made slope “implicated political, social, or
economic decisions of the sort that the exception was designed to
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protect.” (internal quotation marks omitted)) with Elder, 312 F.3d at
1183 (“The Middle Emerald Pools is not a parking lot, but a scenic
attraction.”).
Where the United States has provided some warnings, it is more
appropriate to view the failure to provide additional warnings as a
policy-based decision than in cases where the government has failed to
provide any warning at all. Compare, e.g., Zumwalt, 928 F.2d at 955
(“The Park Service, in choosing to mark the Trail and place warnings in
a corresponding pamphlet, undertook a balancing of social, economic,
and political policies.”) with Smith, 546 F.2d at 877 (“[W]e are
convinced that the Government’s decision, as a landowner, not to warn
of the known dangers or to provide safeguards cannot rationally be
deemed the exercise of a discretionary function.”).
The Plaintiffs focus their attention on the second consideration cited above,
contending that the purpose of the Capulin area is “not to preserve the natural beauty
of the area . . . but . . . to provide a safe recreational sledding area for the public.”
Aplt. Opening Br. at 32. The government disputes this, arguing that “Capulin is
classed as moderate to high in natural beauty” and that aesthetic factors involving
preservation of the environment played a part in its design. Aplee. Br. at 47. As the
government also observes, many of the hazards here, while in a sense man-made, are
also the sort visitors would face in an untouched natural setting if they used hillsides
for sledding, such as prevailed before the Capulin area was constructed.
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In our view, however, it is the third consideration that is dispositive here. The
Forest Service did not entirely fail to warn the public of known hazards associated
with Capulin. Instead, it chose to provide warnings through signs and flyers that
notified the public that Capulin was not supervised; that the public should use the
area at its own discretion and risk; and that sledders should be considerate of others
and should look before starting down the hill. The decision to provide this level of
warning was subject to policy-based considerations including allocation of resources
and maintaining the rustic nature of the Capulin snow play area.
The Plaintiffs argue for more specific warnings of specific hazards, placed on
more visible signs. They complain that
[t]he signs posted at Capulin . . . [lent] no warning as to the dangerous
nature of the slope caused by the too steep grade, improper maintenance,
and lack of supervision. The signs in no way alerted sledders that built-up
ramps, ice, or the degree of the slope could lead to sleds losing control.
They failed to warn that sledding at Capulin could lead to serious injury or
paralysis.
Aplt. Opening Br. at 26 (emphasis added).
Although it might be appropriate in certain settings to require the warnings the
Plaintiffs mention, the Forest Service was required to consider its limited resources
and its mission to provide recreational activities “in close harmony with the
surrounding environment.” FSM 2300(4), Aplee. Supp. App. at 88. Posting large
signs in unmistakable lettering enumerating specific deficiencies and hazards of the
snow play area and referring to “serious injury or paralysis” could reasonably have
been judged to detract from this objective. The United States has convincingly
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argued that the level of warnings provided involved a policy-based decision shielded
by the discretionary function exception.
CONCLUSION
We affirm the district court’s judgment and its order denying reconsideration
of that judgment.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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