In the case of Kim v. United States, 2019 U.S. App. LEXIS 30340 (9th Cir. 10/10/2019), the issue before the United States Court of Appeals for the Ninth Circuit was whether “the Federal Tort Claims Act bars a suit against federal officials for their failure to prevent the deaths of two boys who were killed when a tree limb fell onto their tent in Yosemite National Park.”

On August 14, 2015, Daniel and Grace Kim; their daughter, Hannah; their teenaged son, Dragon; and their son’s friend, Justin Lee, were camping in Campsite 29 of the Upper Pines Campground in Yosemite National Park. Around 5 a.m., a limb from a large oak tree overhanging the campsite broke and fell on the tent where the two boys were sleeping, killing them.

The Kims and Justin Lee’s parents (collectively, “the families”) sued the United States under the Federal Tort Claims Act (FTCA), alleging that National Park Service (NPS) officials were responsible for the accident. The families’ complaint alleged that NPS officials knew or should have known of the danger posed by the tree, but negligently failed to abate that danger and to warn campers about it.

In the federal district court, the federal government successfully moved to dismiss the complaint under the FTCA’s discretionary function exception. This law prohibits tort claims against the United States that are “based upon the government’s exercise or performance or the failure to exercise or perform a discretionary function or duty” (28 U.S.C. § 2680(a)).

After reviewing Yosemite’s policies regarding tree maintenance, the federal district court found that decisions regarding “how to evaluate and respond to tree hazards” were subject to the discretion of park officials. Accordingly, the federal district court dismissed the complaint on the basis these negligence claims were “barred by the discretionary function exception.” The families appealed.

Discretionary Function Exception
As cited by the federal appeals court, the FTCA discretionary function exception provides as follows:

The FTCA generally authorizes private parties to sue the United States for the tortious conduct of federal officials, but the discretionary function exception bars suit under the FTCA for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).

As noted by the court: “The point of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic and political policy.”

The federal appeals court would conduct a two-step evaluation in determining whether the FTCA discretionary function exception applied. In the first step, the court would determine whether “the challenged actions involve an element of judgment or choice.” In so doing, the federal appeals court acknowledged discretionary function exception would not apply if “a statute or policy directs mandatory and specific action.” As characterized by the court, “there can be no element of discretion when an employee has no rightful option but to adhere to the directive.”

If the government’s actions “do involve an element of judgment,” the court would conduct the second step to determine “whether that judgment is of the kind that the discretionary function exception was designed to shield, namely, only governmental actions and decisions based on considerations of public policy.” Further, the court noted: “The relevant choice must be susceptible to some consideration of social, economic or political policy.”

Tree Hazard Inspection Discretion
In this case, the families claimed the following actions by the government were “not subject to policy-based discretion of the sort covered by the exception”: (1) park officials’ alleged failure to identify the danger presented by the tree that collapsed and (2) their alleged failure to abate and to provide warnings about such danger.

In response, the NPS reiterated the finding of the federal district court that the negligence claims in this case failed, because “the discretionary function exception bars any claim based upon park officials’ alleged failure to discover a specific tree hazard in the park.” The government argued, “park officials maintain significant discretion over how best to inspect trees in Yosemite, and thus they cannot be held liable for failing to identify the danger posed by the tree in question.” Moreover, the government claimed, “park officials exercised considerable discretion over even whether to inspect the tree in question for hazards.” According to the government, applicable NPS park policies at Yosemite “do not require any particular trees to be inspected, but state only that surveys of trees should occur in developed areas of the park ‘on a regular periodic basis.’”

However, the federal appeals court found it was unnecessary to “decide whether the government is right about the nature of its supposed discretion over which areas to inspect,” because park officials actually had undertaken inspection of trees in the area where the accident occurred:

The government admits that in each of the two years prior to the accident the Upper Pines Campground was inspected, and hundreds of hazard trees were identified and abated, though those inspections did not identify the subject tree as hazardous.

Accordingly, having made the decision to inspect the campground, the issue before the appeals court was “whether park officials are shielded from liability for their conduct in actually inspecting that area once they undertook to do so.” In deciding this issue, “once the choice to pursue a project is made,” the court would look at “the nature of the actions in conducting the project, not the decision to undertake it.” In other words, the deciding is immune, but the doing is not. Once the decision is made to do something, it must be implemented in a non-negligent fashion.

In this instance, once park officials had decided to inspect a tree, the government argued “their determination of the extent of the hazard posed by such tree is shielded by the discretionary function exception.” Having undertaken tree inspection in the campground, the federal appeals court found that “park officials were required to do so in accordance with their established policies.”

Hazardous Tree Management Directive
The federal appeals court cited Yosemite Park Directive No. 25, which set forth the park’s “Hazard Tree Management” program. As noted by the court, this program specified “how park officials are to evaluate the risk posed by trees they inspect”:

Directive No. 25 states that Yosemite implements the ‘Seven-Point’ (Mills and Russell 1980) system, a professionally recognized, documented and quantified hazard tree rating system. An appendix to the directive details the Seven-Point system, under which each tree is assigned a “Total Hazard Rating” (ranging from two to seven) that combines a “Defect Rating” based on the tree’s potential for physical failure and a “Target Rating” based on the potential impact in the event of a failure.

The system provides specific criteria for how to rate each component based on the tree’s visible features and the nature of the surrounding area. Trees with a total rating of five or higher are considered “high” risks and, according to the directive, “will require some type of abatement/mitigation.”

The federal appeals court acknowledged that “park officials certainly had substantial discretion in choosing whether to adopt the Seven-Point system instead of some other method for evaluating trees.” However, once this decision was made in Directive No. 25 to adopt the Seven-Point system, the federal appeals court found “the implementation of such system cannot be said to turn on those same policy considerations that went into the choice to adopt the system.”

In particular, the court held that the decision made in Directive No. 25 “must now be followed” without regard for “the policy considerations that went into the choice to adopt the system”:

We have generally held that the design of a course of governmental action is shielded by the discretionary function exception, whereas the implementation of that course of action is not.

Technical Safety Considerations
In this case, the government argued the implementation of the rating system was shielded by the discretionary function exception because “the system itself requires officials to consider questions of public policy. The federal appeals court agreed that the implementation of a government policy would be shielded by the discretionary function exception, but only “where the implementation itself implicates policy concerns.” As characterized by the appeals court, the government’s argument erroneously conflated “policy considerations with technical considerations.” The appeals court noted that scientific and professional judgments concerning safety were “rarely considered to be susceptible to social, economic or political policy” within the scope of the discretionary function exception.

In the opinion of the federal appeals court, the park’s rating system required “scientific and professional judgment” related to safety. In particular, the court noted the system directed park officials to “assign certain hazard ratings based on a tree’s structural defects and its likelihood of damaging various park features.” While acknowledging “the system requires the careful — perhaps even difficult — application of specialized knowledge,” the court found the “only flexibility built into the rating system [was] to accommodate additional technical considerations.” As noted by the court, the rating system would only “allow officials to modify the standards to reflect variations in tree species and environmental factors.”

No Public Policy in Rating Trees
In the opinion of the court, the mere fact that experts may hold “opposing views as to what rating should have been assigned to the tree” would not establish that such technical analysis “somehow turns on questions of public policy”:

Even if the Seven-Point system requires officials to make difficult choices, it still does not ask them to make policy choices and it does not afford them an opportunity to rate a tree based on their social, economic or political views.

Accordingly, “once park officials undertook to evaluate the danger of the trees in the campground,” the federal appeals court held that the government officials “were required to do so according to the technical criteria set forth in the park’s official policies.”

The federal appeals court, therefore, concluded the federal government was not immune under the FTCA discretionary function exception. But the appeals court acknowledged, in a full trial in the federal district court, it was “unclear whether the families will succeed in showing that officials were actually negligent in evaluating the tree under the Seven-Point system.”

That being said, the court noted that the families’ complaint adequately had alleged the government’s negligent “failure to discover the danger presented by the tree.” This was evident in the fact that the park officials allegedly “knew of such danger, because the tree had similarly broken in the past and had begun to bow noticeably above the campsite in question.”

In response, the government argued the park officials lacked actual knowledge that the tree presented a hazard because records indicated “the tree in question was not selected for abatement during 2014 and 2015 surveys of the campground.” In dismissing the complaint, the appeals court noted that the district court had not provided the families with an opportunity to conduct pretrial discovery to determine what the park officials actually knew and whether they had “rated the subject tree as a high or very high hazard.”

No Discretion to Do Nothing
Assuming park officials “knew or should have known about the danger posed by the tree,” the government argued “the families’ negligence-based claims are still barred because park officials had significant discretion regarding what to do in response to that danger.”

“[While] park officials had discretion regarding what to do in response to the danger,” the families claimed that “applicable policies required officials to do something, including at least to warn campers.” In so doing, the families contended “the government’s failure to do anything at all to mitigate the risk was not subject to the sort of policy choices protected by the discretionary function exception.”

The federal appeals court agreed that “the extent and nature of park officials’ discretion over how to address hazardous trees is defined by Yosemite Directive No. 25.” Under the park’s Seven-Point system, the families had argued “the tree should have been rated a five or a six...a ‘high’ risk, according to Directive No. 25.” Moreover, pursuant to the directive, trees rated “high risk or above require a management action,” and “will require some type of abatement/mitigation.”

In the opinion of the federal appeals court, the directive did require “some type of mitigation,” listing “a wide range of specific mitigation efforts that NPS officials may undertake — from pruning or repairing the tree to removing it or closing the surrounding area.” Given the wide range of specific mitigation measures available to park officials under the required directive, the government argued that the park officials maintained significant policy-based discretion in deciding how best to handle the hazard posed by the tree.

The federal appeals court agreed that the discretionary function exception might indeed bar “a claim challenging the government’s choice of one mitigation approach over some other.” The court, however, found the government’s argument ignored the families’ claim that “park officials failed to satisfy their baseline duty to do something about the tree”:

Even if the directive gives officials broad leeway in deciding how to abate the danger posed by a high-risk tree, the directive still instructs that they do something toward that goal.

Given the requirements of Yosemite Directive No. 25 “to abate the hazard,” the federal appeals court held that a decision to do “nothing at all” would not be immune from liability under the FTCA discretionary function exception.

Warn of Known Dangers
The families further claimed “Park officials were negligent in failing to warn visitors that the tree was dangerous.” Based upon the following language in Directive No. 25, the federal appeals court found park officials had a duty to “warn visitors of known dangers”:

The park will provide reasonable public information about the known potential for risk of exposure in the park to hazard tree conditions. The intent is to make the public aware of potential tree hazards that are known to exist in developed areas within the park or sections of the park. This information/public outreach should be on a level commensurate with other public safety information.

In response to the families’ failure-to-warn claim, the federal appeals court further found “the government has not identified even a single policy-based consideration that might stop park officials from notifying visitors about known tree hazards.” Instead, as described by the court, the government had simply asserted a conclusory statement “without elaboration, that the decision whether to post a warning is subject to policy considerations.” The court, however, noted that the support for the government’s statement was “a provision in Directive No. 25, which states that, prior to taking any action to abate tree hazards, a review of resource issues should be made considering the various environmental laws and the resources potentially impacted.”

In the opinion of the court, this statement reflected environmental management of park resources and had “nothing to do with posting warnings.” As characterized by the court, this statement “specifically applies to the government’s consideration of how best to abate the hazard itself, for example, by pruning or repairing trees or closing endangered areas of the park.” Moreover, the court noted this statement directives followed a separate instruction to “provide reasonable public information about hazardous tree conditions.”

Accordingly, in the opinion of the federal appeals court, “fulfilling the park’s duty to inform visitors somehow about that risk does not involve considerations of public policy”:

A decision not to warn of a specific, known hazard for which the acting agency is responsible is not the kind of broader social, economic or political policy decision that the discretionary function exception is intended to protect....A failure to warn involves considerations of safety, not public policy.

As a result, the federal appeals court held: “the discretionary function exception does not bar the families’ claim that the government negligently failed to give park visitors any warning about the tree.”

Going Back to Trial
Having found that the discretionary function exception did not apply to the duty of park officials “to take some action to abate a high-risk tree,” the federal appeals court reversed the district court’s dismissal of the families’ negligence-based claims and remanded (i.e., sent back) this case to the federal district court to conduct further proceedings. On remand, the federal district court would conduct a trial to determine whether park officials “knew or should have known of the danger posed by the tree, but negligently failed to abate that danger and to warn campers about it.”

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism at George Mason University. Webpage with link to law review articles archive (1982 to present).