695 F. App'x 378
10th Cir.2017Background
- Capulin Snow Play Area is a Forest Service–managed recreational sledding site created to provide a safer alternative to roadside sledding; it was operated with minimal/no supervision and visitors were warned to "play at your own risk."
- The Forest Service inspected the site daily when open, cleared trash and mitigated large jumps, but did not alter the natural slope or run-out; renovations were planned but delayed by funding until 2010.
- Two serious injuries occurred (Dec. 2009 and Jan. 2010); plaintiffs sued under the FTCA alleging negligence and inadequate warnings/supervision.
- The government moved to dismiss under Rule 12(b)(1) asserting the FTCA discretionary-function exception; district court granted dismissal for lack of subject-matter jurisdiction and denied reconsideration.
- On appeal the Tenth Circuit considered FSM provisions cited by plaintiffs, evaluated whether any FSM provision created a nondiscretionary (mandatory) duty causally connected to the injuries, and applied the Berkovitz/Gaubert two-part discretionary-function test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal preserved | Plaintiffs timely appealed denial of reconsideration; later docketing statement preserved appeal of underlying judgment | Government argued initial notices were defective | Court accepted docketing statement as amended notice; appellate jurisdiction proper |
| First prong of Berkovitz: Do FSM provisions mandate a specific course of action? | FSM directives (various 2300-series and verb‑use rules) create mandatory duties to correct hazards, close sites, or warn | FSM language is discretionary in substance; use of imperative/helping verbs alone does not eliminate discretion | Court held plaintiffs failed to identify a regulation prescribing a specific, nondiscretionary course of action; first prong not met for asserted duties (except inspection record requirement which was not causally linked) |
| Causation re: annual inspection requirement (FSM 2332.1) | Failure to perform/record annual inspections violated a mandatory duty that caused the injuries | Even if inspections were mandatory, plaintiffs did not show breach of that duty caused their injuries; remediation decisions remain discretionary | Court held inspection/recording requirement irrelevant because plaintiffs did not connect its breach causally to their injuries |
| Second prong of Berkovitz/Gaubert: Was the challenged decision grounded in policy? (duty-to-warn and degree of warnings) | Plaintiffs argued purpose of Capulin was safe sledding so specific prominent warnings were required | Government showed warnings were provided and the level/placement/content of warnings implicated resource allocation and preservation policies | Court held failure to provide more/bigger/specific warnings was a policy-based exercise of discretion and barred by the discretionary-function exception |
Key Cases Cited
- Berkovitz v. United States, 486 U.S. 531 (Sup. Ct. 1988) (two‑part test for discretionary‑function exception)
- United States v. Gaubert, 499 U.S. 315 (Sup. Ct. 1991) (presumption that discretionary regulatory schemes involve policy considerations)
- Esposito v. United States, 368 F.3d 1271 (10th Cir. 2004) (standard of review for Rule 12(b)(1) dismissals)
- Garcia v. United States Air Force, 533 F.3d 1170 (10th Cir. 2008) (application of Berkovitz two‑part test)
- Duke v. Dep’t of Agriculture, 131 F.3d 1407 (10th Cir. 1997) (failure to warn where broader policy not shown)
- Elder v. United States, 312 F.3d 1172 (10th Cir. 2002) (warning content/placement implicates park policy balancing)
- Zumwalt v. United States, 928 F.2d 951 (10th Cir. 1991) (absence of warnings as part of policy to maintain wilderness character)
- Franklin Savings Corp. v. United States, 180 F.3d 1124 (10th Cir. 1999) (breach of an allegedly mandatory directive must be the source of the harm to avoid discretionary‑function bar)