940 F.3d 484
9th Cir.2019Background
- In Aug. 2015 a large oak limb fell on a tent in Yosemite’s Upper Pines Campground, killing two boys; families sued the United States under the FTCA for wrongful death and negligent infliction of emotional distress.
- The families amended to add a fraudulent-concealment claim, alleging NPS knew the tree was dangerous and concealed that fact to keep campsites open.
- Yosemite Directive No. 25 requires use of a Seven‑Point hazard‑rating system for trees in developed areas and directs that trees rated "high" require some abatement/mitigation; the directive also calls for providing "reasonable public information" about known tree hazards.
- The district court dismissed the negligence claims under the FTCA discretionary‑function exception and dismissed the fraudulent‑concealment claim under the FTCA misrepresentation exception; plaintiffs appealed.
- The Ninth Circuit reversed dismissal of the negligence-based claims (failure to identify, to abate, and to warn) as not covered by the discretionary‑function exception, but affirmed dismissal of the fraudulent‑concealment claim under the misrepresentation exception; the case was remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discretionary‑function exception bars claims challenging failure to identify a hazardous tree | Kim: Tree evaluation was governed by Directive No. 25/Seven‑Point system (technical, mandatory), so identification is not discretionary | U.S.: Park officials have discretion in inspections and hazard‑rating decisions, so FTCA exception applies | Court: Applying the Seven‑Point system is technical (not policy); identification under the directive is not protected by the exception (reversed dismissal) |
| Whether the discretionary‑function exception bars claims challenging the failure to abate any known high‑risk tree (i.e., to do something) | Kim: Directive requires "some type" of abatement for high risks; doing nothing violates a mandatory duty | U.S.: Directive leaves wide policy discretion about how to abate, so decisions are protected | Court: While method of abatement is discretionary, the directive imposes a baseline duty to take some action; failure to act is not shielded by the exception (reversed dismissal) |
| Whether the discretionary‑function exception bars failure‑to‑warn claims about known tree hazards | Kim: Directive mandates providing reasonable public information about known hazards (safety, not policy) | U.S.: Decision to post warnings involves policy considerations and resource balancing | Court: Duty to inform visitors is mandatory and safety‑driven (not a policy decision) so the exception does not bar the failure‑to‑warn claim (reversed dismissal) |
| Whether the FTCA misrepresentation exception bars the fraudulent‑concealment claim | Kim: Misrepresentation exception should not bar personal‑injury recovery here (reliance on later cases) | U.S.: Fraudulent concealment is a species of misrepresentation/deceit and is absolutely barred by § 2680(h) | Court: Fraudulent‑concealment claim is a distinct misrepresentation cause of action and is barred by § 2680(h); dismissal affirmed |
Key Cases Cited
- Berkovitz v. United States, 486 U.S. 531 (framework for FTCA discretionary‑function exception)
- Terbush v. United States, 516 F.3d 1125 (burden on government; two‑step test application)
- Whisnant v. United States, 400 F.3d 1177 (professional/scientific judgments not typically policy)
- Kennewick Irrigation Dist. v. United States, 880 F.2d 1018 (technical/engineering choices not policy)
- Myers v. United States, 652 F.3d 1021 (once project undertaken, focus on nature of implementation)
- Chadd v. United States, 794 F.3d 1104 (discretion protects choices implicating policy)
- Navarette v. United States, 500 F.3d 914 (distinguishing whether to act vs how to act)
- Sutton v. Earles, 26 F.3d 903 (decision not to warn of a known hazard is not a policy decision)
- Faber v. United States, 56 F.3d 1122 (failure to warn concerns safety, not policy)
- Doe v. Holy See, 557 F.3d 1066 (misrepresentation exception applied in personal‑injury context)
- Lawrence v. United States, 340 F.3d 952 (similar application of misrepresentation exception)
- Green v. United States, 629 F.2d 581 (misrepresentation exception not limited to economic loss)
- Ramirez v. United States, 567 F.2d 854 (distinguishing ordinary negligence from distinct misrepresentation causes of action)
- Owyhee Grazing Ass’n v. Field, 637 F.2d 694 (absolute bar for fraud/misrepresentation claims under § 2680(h))
- Preston v. United States, 596 F.2d 232 (commercial‑transaction misrepresentation discussion)