894 F2d 325 Summers v. United States

894 F.2d 325

Kendra SUMMERS, a minor, and Frederick J. Summers, guardian
ad litem, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 87-15048.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Aug. 16, 1989.
Decided Jan. 18, 1990.
As Amended June 26, 1990.

Arnold I. Berschler, San Francisco, Cal. and Les Scher, Garberville, Cal., for plaintiff-appellant.

Stephen L. Schirle, Asst. U.S. Atty., San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, Chief Judge, and PREGERSON and REINHARDT, Circuit Judges.

GOODWIN, Chief Judge:


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1

Kendra Summers appeals a judgment in favor of the United States in her action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2671 et seq., to recover for an injury to her foot which occurred at Rodeo Beach, part of a park operated by the National Park Service.

2

The district court erred in finding her action barred under the discretionary function exception to the FTCA, 28 U.S.C. Sec. 1346(b).

3

Kendra's injury occurred on August 9, 1984, during a visit to Rodeo Beach, part of the Golden Gate National Recreation Area (GGNRA). Kendra, then four and one-half years old, was walking with her family when they came upon a sign showing a symbol of logs aflame and an arrow pointing to the nearby beach. Upon reaching the beach, Kendra received her parents' permission to take off her shoes and started to walk ahead. She then attempted to balance herself upon a rock which was part of a fire ring, but lost her balance and burned her foot on hot embers within the fire ring.

4

At the time of Kendra's injury, Rodeo Beach was subject to Park Service and Department of Interior regulations concerning visitor safety. The purpose of the regulations, adopted pursuant to 16 U.S.C. Sec. 1, was to protect visitors from recognized natural and man-made hazards within the park boundaries. The safety program included a manual entitled "Safety and Environmental Health Management Program" which mandated annual inspections for facilities under Interior Department auspices. The manual stated that whenever a safety inspector found unsafe conditions or practices which posed an imminent risk of serious harm or death to the public he or she was required to take steps to abate the danger as soon as possible.

5

The safety program also included Park Service safety guidelines which the GGNRA implemented under its "Safety Management Program". The GGNRA program included two levels of safety committees: Level 1 committees were assigned for each operational area of the GGNRA and were responsible for identifying and dealing with hazards within their areas. The Level 2 Committee dealt with problems beyond the competence of the Level 1 committees and with broad policy issues. The Level 2 Committee implemented a park-wide program to identify and address class A hazards (those involving imminent threats to the public) and class B hazards (serious threats to the public) through annual inspections and ranger observations. The GGNRA also formed a park-wide sign committee which reviewed sign proposals and revisions by the field staff and safety manager. When a warning sign was deemed necessary in response to an identified hazard, the sign committee decided on the wording, size, coloring, and placement of the sign. The GGNRA followed the Park Service policy of trying to keep signs to a minimum and generally installed them only where they were necessary to warn the public of an imminent danger.

6

For some time prior to Kendra's injury, fires were permitted at any location on Rodeo Beach. In response to concerns about alcohol abuse and vandalism by teenagers who built fires on remote areas of the beach, the Park Service changed its policy to confine beach fires to three fire rings located close to and easily observable from the road. After the installation of the fire rings, the rangers noticed that some visitors continued to build fires outside the fire rings and posted the sign warning that fires were permitted only in the fire rings.

7

Kendra's father, Frederick Summers, filed this action as guardian ad litem for Kendra against the United States. During the bench trial the government moved for a directed verdict on the grounds that (1) it was immune under the FTCA's discretionary function exception and (2) Kendra had made no showing of a willful failure to guard or warn. The court granted the government's motion on the first ground, holding that the Park Service's failure to warn of the risk of stepping on hot coals fell within the discretionary function exception.


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8

In accordance with the Supreme Court's decision in Berkovitz by Berkovitz v. United States, 486 U.S. 531, 535, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988), this court utilizes a two-step test to determine whether the FTCA discretionary function exception applies in a given case. See Kennewick Irrigation District v. United States, 880 F.2d 1018, 1025 (9th Cir.1989). We must consider first whether the challenged action is a matter of choice for the acting employees: "[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz, 108 S.Ct. at 1958. If the challenged conduct does involve an element of judgment, the second step is to determine whether that judgment "is of a kind that the discretionary function was designed to shield." Id. at 1959. To be shielded the judgment must be grounded in social, economic, or political policy. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984).

9

A. PRESCRIPTIVE STATUTE, REGULATION, OR POLICY

10

Under the GGNRA safety program as well as the Interior Department guidelines, corrective action by park officials is mandated as soon as a hazard is identified as posing a risk of serious injury to the public. A failure to address an identified danger is inconsistent with regulations and therefore would not be covered under the FTCA's discretionary function exception to liability.

11

Kendra's first contention is that the district court erred in finding that the risk of serious injury to barefoot visitors from stepping on hot coals left within fire rings had not been identified as a hazard at the time the Park Service decided to install the fire rings on Rodeo Beach. Her claim is based upon Ranger Robert Cheung's admission at trial that the danger of injury to barefoot visitors from beach fire remnants had been identified by Park Service officials as a serious hazard prior to the installation of the fire ring sign. Cheung, however, corrected this testimony later in the trial and stated that the Park Service had no such awareness of the danger from hot coals before it implemented its fire-ring policy. In addition, the chairman of the GGNRA Level 2 Safety Committee, Brian O'Neill, testified that no one on the staff had ever identified the issue of coals on Rodeo Beach as a safety hazard and it was uncontested that prior to Kendra's accident there had been no reports of injury from other beach visitors stepping on hot coals.

12

In light of Cheung's corrected testimony, along with the other evidence adduced by the Park Service at trial, we find no clear error in the district court's determination that Park Service rangers had not identified the risk of stepping on hot coals as a serious safety hazard prior to Kendra's injury.

B. POLICY JUDGMENT

13

Having determined that the Park Service's failure to warn of the potential danger of stepping on hot coals did not contravene a prescriptive federal statute, regulation, or policy, we must consider next whether the omission reflects the exercise of judgment grounded in social, economic, or political policy. See Arizona Maintenance Co. v. United States, 864 F.2d 1497, 1504 (9th Cir.1989); Seyler v. United States, 832 F.2d 120, 123 (9th Cir.1987).

14

The government claims that Park Service decisions regarding the placement and particulars of park signs fall within the broad discretionary authority delegated to the Park Service by Congress to carry out the Park Service's dual mission of promoting public use of the national parks while preserving them for the enjoyment of future generations. 16 U.S.C. Sec. 1. The government characterizes the Park Service sign policy as an exercise of discretionary judgment balancing the demands of the dual mission: The Service limits park signs to the minimum number and size necessary for adequate warning and guidance to the public in order to conserve the scenery of the parks for future visitors.

15

It is possible that a selection by the GGNRA sign committee of a sign for the fire-ring area which reflected a thoughtful compromise between the need to warn the public of all the associated dangers (including danger to barefoot visitors from hot coals) and the relevant aesthetic considerations would be immune from attack under the discretionary function exception of the FTCA. But that selection process is not presented here.

16

If the Park Service's own assertions are to be believed, it failed altogether to consider the danger to barefoot visitors from hot coals at the time it designed the fire-ring sign. The omission of a warning that might have prevented Kendra's injury was therefore inadvertent--not the product of a choice "rooted in social, economic, or political policy." Arizona Maintenance Co., 864 F.2d at 1504. As we have noted previously, "where the challenged governmental activity involves safety considerations under an established policy rather than the balancing of competing public policy considerations, the rationale for the exception falls away and the United States will be held responsible for the negligence of its employees." ARA Leisure Services v. United States, 831 F.2d 193, 195 (9th Cir.1987), quoting Aslakson v. United States, 790 F.2d 688, 693 (8th Cir.1986).

17

The district court found that consideration of the dangers presented by beach fire remnants to barefoot visitors played no part in the formulation of the changed Park Service policy on fire rings. We hold that the failure to recognize and incorporate consideration of this danger in the development of the new policy is not insulated from review under the discretionary function exception of the FTCA.

18

We express no opinion on whether negligence on the part of the Park Service was proved, nor upon the causal relationship between the conduct of the Park Service, of the parents, and the injury to the child. See Lindgren v. United States, 665 F.2d 978, 983 (9th Cir.1982). We vacate the judgment and remand for consideration of the negligence and causation questions, free from the erroneous grant of discretionary immunity to the Park Service.

19

VACATED AND REMANDED.