Donna Young v. United States, 2014 U.S. App. LEXIS 19980

Background

Donna Young fell ~12 feet into a snow cavity above a buried transformer near Mount Rainier’s Jackson Visitor Center (JVC) and suffered severe injuries; the transformer emitted heat that melted snow and created a hidden cavity.
The transformer was ~150 feet from the JVC in an accessible snowfield that the NPS did not develop or actively maintain; there were no warning signs at the transformer site.
Plaintiffs sued under the Federal Tort Claims Act (FTCA), alleging NPS negligently failed to warn of a latent hazard the agency knew of and created.
The government moved to dismiss under the FTCA’s discretionary function exception (28 U.S.C. § 2680(a)), arguing the no-warning decision was policy-driven (balancing safety, access, preservation).
The district court dismissed for lack of jurisdiction; the Ninth Circuit reversed, holding the no-warning decision was not the kind of policy-driven discretionary decision protected by the exception and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the FTCA discretionary function exception bars this suit	The NPS failed to warn of a specific, known, latent hazard it created; such a failure is not protected by the exception.	The decision not to post warnings is discretionary and grounded in NPS policy balancing safety, access, and preservation, so it is protected.	The Court held the exception does not apply because the alleged failure was to warn of a specific hazard the NPS knew of and created, not a policy-driven park-management judgment.
Proper characterization of the alleged wrongdoing for the Berkovitz test	Focus on NPS’s failure to warn of a known, agency-created hazard (narrow, specific act).	Characterize broadly as garden-variety NPS hazard-identification/maintenance decisions (policy-laden).	The Court adopted Plaintiffs’ narrower characterization—specific failure to warn of a known, created hazard—which controls the discretionary-function analysis.
Whether the decision was grounded in social, economic, or political policy (Berkovitz step two)	The decision to leave an obvious, agency-created hazard unmarked is not susceptible to higher-order policy analysis.	NPS points to Organic Act, Management Policies, and Director’s Order to show warning decisions implicate policy tradeoffs.	The Court found the cited policies do not reasonably cover a decision not to warn of a buried transformer next to the main visitor center; the decision was "totally divorced" from the asserted policy concerns.

Key Cases Cited

Berkovitz v. United States, 486 U.S. 531 (defines the two-step discretionary-function test)
Gaubert v. United States, 499 U.S. 315 (FTCA discretionary-function principles and deference)
Terbush v. United States, 516 F.3d 1125 (Ninth Circuit discussion of NPS balancing of access and preservation)
Whisnant v. United States, 400 F.3d 1177 (importance of particularizing alleged agency wrongdoing)
Summers v. United States, 905 F.2d 1212 (failure to post warning not protected where no record that nonposting reflected policy)
Sutton v. Earles, 26 F.3d 903 (agency failure not to warn of a known, agency-created hazard is not protected)
Childers v. United States, 40 F.3d 973 (NPS decisions about trail warnings implicate policy when linked to access/preservation)
Valdez v. United States, 56 F.3d 1177 (no-warning decisions about natural features linked to policy)
Blackburn v. United States, 100 F.3d 1426 (warning decisions tied to visitor enjoyment and preservation can be discretionary)
Oberson v. U.S. Dep’t of Agric., 514 F.3d 989 (government must show policy basis in record for the discretionary-function shield)