George v. United States
735 F. Supp. 1524, 1990 WL 55783, 1990 U.S. Dist. LEXIS 5181 (1990)
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Rule of Law:
The discretionary function exception to the Federal Tort Claims Act does not shield the government from liability for failure to warn of or remove a known, hidden danger in a designated public recreation area, as such a failure is an operational-level decision rather than a protected policy judgment.
Facts:
- The United States Forest Service owned and operated the Open Pond Recreation Area in Conecuh National Forest, which included a designated swimming area for the public.
- Forest Service officials had actual knowledge of the presence of a large, 11-to-12-foot alligator in the Open Pond area.
- In the seven weeks preceding the attack, officials received at least six reports from park users and employees about a large alligator exhibiting aggressive behavior or a lack of fear towards humans, such as following boats and people along the bank.
- The Forest Service was also aware that another swimmer had been attacked by an alligator in the same designated swimming area in 1981.
- Despite suggestions from lower-level employees to post warning signs or trap the alligator, senior Forest Service officials decided to take no immediate action other than monitoring the situation.
- On July 26, 1986, while swimming in the designated area, Kermit H. George was attacked by the large alligator, which severed his right arm at the shoulder.
Procedural Posture:
- Kermit H. George and Janet H. George filed a civil action against the United States of America in the U.S. District Court for the Middle District of Alabama under the Federal Tort Claims Act.
- The United States moved for summary judgment, arguing the claim was barred by the discretionary function exception and the Alabama Recreational Use Statute.
- The district court denied the government's motion for summary judgment.
- The parties agreed to bifurcate the proceedings, holding a trial on the issue of liability before addressing the issue of damages.
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Issue:
Does the discretionary function exception to the Federal Tort Claims Act shield the government from liability for failing to warn of or remove a known dangerous alligator from a designated swimming area in a national forest?
Opinions:
Majority - Varner, District Judge
No. The discretionary function exception does not shield the government from liability because once the government created a designated swimming area and had actual knowledge of a specific, hidden danger, the decision to do nothing was not a permissible policy choice. Applying the two-part test from Berkovitz v. United States, the court first found that while Forest Service officials had a choice, their own regulations required them, at a minimum, to post signs about known hazards, which they failed to do. Second, even if a choice existed, it was not the kind of judgment grounded in social, economic, or political policy that Congress intended to protect. The decision was an operational failure to address a known, life-threatening hazard, not a high-level policy determination. The court distinguished this from cases involving open and obvious dangers, emphasizing that once the government undertakes to provide a service like a swimming area, it is obligated to use due care, particularly against hidden dangers known to its employees.
Analysis:
This decision significantly clarifies the boundary between protected policy-level discretion and unprotected operational-level negligence under the Federal Tort Claims Act. It establishes that the government cannot invoke the discretionary function exception to shield itself from liability when it has actual knowledge of a specific, non-obvious, and serious danger on property it has opened for public recreation. The ruling curtails the government's ability to claim that general policies, such as preserving the natural state of a park, justify inaction in the face of a known threat to human life. This case sets a precedent that holds government agencies accountable for day-to-day safety management and the duty to warn, influencing how public lands are managed where natural hazards and human activity intersect.
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