Clark v. United States
695 F. App'x 378 (2017)
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Rule of Law:
The Federal Tort Claims Act's discretionary function exception applies when governmental conduct involves an element of judgment or choice and that judgment is susceptible to policy analysis, even if agency guidelines use seemingly mandatory language but the underlying action still requires the exercise of discretion in weighing policy objectives, resource allocation, or aesthetic considerations, particularly regarding the nature and extent of warnings in a recreational area.
Facts:
- The Capulin Snow Play Area was constructed to provide a safer alternative for snow play and reduce dangerous roadside activities within the Cibola National Forest.
- The area's slope followed the natural hill, and neither the slope nor the run-out was altered at the time of the incidents.
- Due to limited funding, the Forest Service decided to operate and continuously operated Capulin without supervision.
- Signs and flyers at Capulin notified visitors that the area was minimally supervised, to participate at their own discretion and risk, and advised general safety rules such as being aware of risks and looking around before sliding.
- The Forest Service visited Capulin daily when open, clearing trash, mitigating jumps/moguls, checking snow conditions, and deciding whether to open.
- An October 2007 Environmental Assessment concluded that Capulin's sliding areas were too steep, allowing excessive speed, and creating unsafe conditions.
- Despite planning renovations as early as 2005, renovation work did not begin until May 2010 due due to competing demands on Forest Service resources.
- On December 27, 2009, Noah Silver sustained spinal cord injuries while sledding at the Capulin Snow Play Area.
- On January 31, 2010, Peter Clark sustained back and ankle injuries while sledding at the Capulin Snow Play Area.
Procedural Posture:
- Peter Clark filed a Complaint for Personal Injury against the United States under the Federal Tort Claims Act (FTCA) in U.S. District Court for the District of New Mexico on November 12, 2012.
- Aileen O’Catherine and Steven Silver filed a Complaint for Personal Injury and Loss of Consortium against the United States under the FTCA in U.S. District Court for the District of New Mexico on November 15, 2012.
- The United States filed a motion to dismiss the complaints or for summary judgment on the merits, and alternatively, a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction.
- The district court denied the government’s merits motion but granted its motion to dismiss for lack of subject-matter jurisdiction, concluding the FTCA’s discretionary-function exception applied.
- The Plaintiffs then moved for reconsideration, which the district court denied on June 29, 2015.
- The Plaintiffs filed timely notices of appeal to the Tenth Circuit Court of Appeals, and later filed docketing statements that functioned as amended notices to also appeal the underlying judgment.
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Issue:
Does the Federal Tort Claims Act's discretionary function exception apply to the United States Forest Service's decisions regarding the design, maintenance, supervision, and warning signs at a recreational snow play area, thereby barring negligence claims for injuries sustained there?
Opinions:
Majority - Gregory A. Phillips
Yes, the Federal Tort Claims Act's discretionary function exception applies to the United States Forest Service's actions and inactions concerning the Capulin Snow Play Area, including its decisions on design, maintenance, supervision, and warnings, thus barring the negligence claims. The court applied the two-part Berkovitz test. First, it determined that the Forest Service's conduct was discretionary, finding that none of the cited Forest Service Manual (FSM) sections created a mandatory duty prescribing a specific course of action for maintaining or supervising the snow play area. The court clarified that while FSM 1110.3 and 1110.8 describe mandatory verb usage, a regulatory requirement using imperative verbs does not remove discretion if it still requires the decision-maker to weigh alternatives, factors, or policy priorities bounded by practical concerns (e.g., "ensure cost-efficient delivery of services"). The court acknowledged FSM 2332.1's mandatory duty to inspect annually and maintain records, but found it inapplicable because the plaintiffs failed to demonstrate a causal relationship between any breach of this duty and their injuries; even if dangerous conditions were revealed, the subsequent decision on how to remediate them would still be discretionary. Second, the court determined that the decisions were susceptible to policy analysis, noting the strong presumption from United States v. Gaubert that discretionary acts authorized by regulation involve policy considerations. Regarding the warnings, the court found it dispositive that the Forest Service did not entirely fail to warn but chose to provide warnings through signs and flyers advising of minimal supervision, risk, and general safety rules. The decision regarding the level of warning provided was subject to policy-based considerations, including resource allocation and maintaining the rustic nature of the Capulin snow play area, and avoiding enumeration of every specific hazard (like “serious injury or paralysis”) was a policy choice to avoid detracting from the area’s objective of providing recreation "in close harmony with the surrounding environment."
Analysis:
This case significantly clarifies the application of the FTCA's discretionary function exception in the context of government-managed recreational areas. It establishes that even agency directives using 'mandatory' language may not strip the government of discretion if the underlying action requires policy judgment, resource allocation, or a balancing of objectives. The ruling provides crucial guidance on the extent to which decisions about warnings in recreational settings are shielded, particularly when some warnings are already provided and the government can articulate a policy basis for the chosen level of warning. This makes it more challenging for plaintiffs to successfully bring negligence claims against the government for injuries sustained in such areas, reinforcing the broad protection afforded by the exception.
