LeCompte et al v. United States of America, The

Filing 35

MEMORANDUM OPINION and ORDER that the 25 MOTION for Summary Judgment is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/21/2014. (AHI )

FILED
2014 Oct-22 AM 08:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JASON and ELIZABETH
LECOMPTE, as parents of BELL
DIVINE LECOMPTE, a deceased
minor,
Plaintiffs,
vs.
THE UNITED STATES OF
AMERICA,
Defendant.

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Civil Action No. 5:13-cv-0249-CLS

MEMORANDUM OPINION AND ORDER
Plaintiffs, Jason and Elizabeth LeCompte, commenced this action on February
5, 2103, asserting claims for negligence and wantonness against the United States of
America for the death of their infant daughter, Bell Divine LeCompte, pursuant to the
Federal Tort Claims Act of 1946, 28 U.S.C. § 2671 et seq.1 The case currently is
before the court on defendant’s motion for summary judgment.2 Upon consideration
of the pleadings, briefs, and evidentiary submissions, the court concludes that the
motion is due to be denied.
I. SUMMARY JUDGMENT STANDARD

1

See doc. no. 1 (Complaint).

2

Doc. no. 25.

Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is
only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.

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Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).
II. BACKGROUND
For purposes of summary judgment, the following background facts are
undisputed. Plaintiffs, Jason and Elizabeth LeCompte, were camping in a motor
home with their six-month-old daughter, Bell Divine LeCompte, and other family
members, in the Oak Grove Campground located at Sardis Lake in northern
Mississippi on June 13, 2011. The Oak Grove Campground is owned, managed, and
operated by the United States Army Corps of Engineers (“The Corps”). During the
afternoon hours, an oak tree fell onto the motor home, killing Bell Divine LeCompte.3
3

See doc. no. 28 (plaintiffs’ brief), at 16, Proposed Undisputed Fact Nos. 1 (“The Oak Grove
Campground is a Class A Campground that is owned, managed and operated by the [Corps of
Engineers] at Sardis Lake.”) (alteration supplied), 3 (“On June 6, 2011, the plaintiffs, along with
their six-month-old baby girl, Bell LeCompte, and various other family members, arrived at Sardis
Lake and parked their motor home on the asphalt pad located at site 49 in the Oak Grove
campground.”), 5 (“On the afternoon of June 13, 2011, . . . a massive oak tree fell on the family’s
camper.”). See also doc. no. 30 (defendant’s reply brief), at 4 (characterizing plaintiffs’ proposed
facts 1-5 as “mostly background facts that are incomplete and thus irrelevant to the issues raised in
Defendant’s motion,” but not disputing any of those facts).
Even though the events leading to this lawsuit occurred in Mississippi, the case was filed in
the Northern District of Alabama because both plaintiffs reside within that district. See 28 U.S.C.
§ 1391(e)(1) (“A civil action in which a defendant is an officer or employee of the United States or
any agency thereof acting in his official capacity or under color of legal authority, or an agency of
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Jason and Elizabeth LeCompte seek to hold the United States liable for their
daughter’s death based on the Corps’ alleged negligence and wantonness in
maintaining the campground.4
the United States, or the United States, may, except as otherwise provided by law, be brought in any
judicial district in which . . . (C) the plaintiff resides if no real property is involved in the action.”);
see also doc. no. 1 (Complaint) ¶ 5 (“JASON LECOMPTE is a . . . resident citizen of Trinity, in
Morgan County, Alabama.”) (emphasis in original), ¶ 6 (“ELIZABETH LECOMPTE is a . . .
resident citizen of Trinity, in Morgan County, Alabama.”) (emphasis in original).
4

Specifically, plaintiffs assert that The Corps was negligent and/or wanton when it:

(A)

Failed to remove the rotten tree from Campsite No. G-49, although the U.S.
Army Corps of Engineers knew, or in the exercise of reasonable care should
have known, that this tree was likely to fall without warning at any time;

(B)

Failed to remove the rotten tree from Campsite No. G-49, when the U.S.
Army Corps of Engineers knew, or in the exercise of reasonable care should
have known, that this tree, if it were to fall, would fall onto the only
designated parking area in Campsite No. G-49;

(C)

Permitted the Plaintiffs to be assigned to Campsite No. G-40, when the U.S.
Army Corps of Engineers knew, or in the reasonable care should have known,
that Campsite No. G-49 was dangerous and unfit for occupancy while the
rotten tree remained standing;

(D)

Failed to warn the Plaintiffs of the danger presented by the rotten tree in or
near Campsite No. G-49;

(E)

Failed to close Campsite No. G-49 until it no longer contained the dangerous
condition created by the tree; . . .

(F)

Failed to make Campsite G-49 reasonably safe for its intended use[;]

(G)

Failed to identify the hazards of the decaying tree[;]

(H)

Failed to gather information about the hazardous trees under its control[;]

(I)

Failed to follow policies designed to identify and remove hazardous trees[;]

(J)

Failed to hear or acknowledge warnings regarding the hazardous trees[;]
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III. DISCUSSION
The United States makes three arguments in support of its motion for summary
judgment. First, the government contends that plaintiffs’ claims are barred by the
discretionary function exception to the Federal Tort Claims Act. Second, the
government argues that none of its employees breached any duties owed to plaintiffs.
Third, the government asserts that plaintiffs’ claims are barred by the Act of God
defense. See Eli Investments, LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d
151, 156 (Miss. 2013) (“The Act of God defense is an affirmative defense to the
element of causation. ‘No one is liable for an injury proximately caused by an act of
God[.]’ . . . . An Act of God is an injury due exclusively to forces of nature, without
human intervention, which could not have been prevented by the use of due care and
reasonable foresight.”) (citations omitted) (alteration in original).5

(K)

Neglected or refused to receive warnings or information concerning
hazardous decaying trees.

Complaint ¶¶ 25, 31 (redaction and alterations supplied).
5

The United States’ liability under the Federal Tort Claims Act is determined by applying
the laws of the state where the alleged injury occurred. See 28 U.S.C. § 1346(b)(1) (“Subject to the
provisions of chapter 171 of this title, the district courts, together with the United States District
Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have
exclusive jurisdiction of civil actions on claims against the United States, for money damages,
accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.”). Because plaintiffs’ alleged injuries occurred in Mississippi, Mississippi
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Upon a careful review of the entire file, the court readily concludes that there
are genuine issues of material fact with regard to whether the United States breached
a duty of care to plaintiffs, and whether plaintiffs’ injuries were caused exclusively
by forces of nature. The legal issue of whether the discretionary function exception
applies will require more detailed discussion.
The Federal Tort Claims Act constitutes a limited waiver of the United States’
sovereign immunity, allowing
civil actions on claims against the United States, for money damages,
accruing on and after January 1, 1945, for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).
The Act incorporates certain statutory exceptions, including the so-called
“discretionary function exception.” Pursuant to that exception, the Act will not apply
to:
Any claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be
law applies.
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abused.
28 U.S.C. § 2680(a). The discretionary function exception “marks the boundary
between Congress’ willingness to impose tort liability upon the United States and its
desire to protect certain governmental activities from exposure to suit by private
individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797, 808 (1984).
The Eleventh Circuit follows a two-part test to determine whether the
discretionary function exception applies.
We consider first whether the conduct involves “‘an element of
judgment or choice,’” OSI, Inc.[ v. United States], 285 F.3d [947,] 950[
(11th Cir. 2002)] (quoting [United States v. ]Gaubert, 499 U.S. [315,]
322, 111 S. Ct. [1267,] 1273[ (1991)]), which will be the case unless “‘a
federal statute, regulation, or policy specifically prescribes a course of
action embodying a fixed or readily ascertainable standard.’” Hughes
v. United States, 110 F.3d 765, 768 (11th Cir. 1997) (quoting Autery v.
United States, 992 F.2d 1523, 1529 (11th Cir. 1993)). The conduct need
not be “confined to the policy or planning level.” Gaubert, 499 U.S. at
325, 111 S. Ct. at 1275.
We then ask whether the judgment or choice is grounded in
considerations of public policy, because the “purpose of the
[discretionary function] exception is to ‘prevent judicial
“second-guessing” of legislative and administrative decisions grounded
in social, economic, and political policy through the medium of an
action in tort.’” Id. at 322-23, 111 S. Ct. at 1273-74 (quoting United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 814, 104 S. Ct. 2755, 2765, 81 L. Ed. 2d 660 (1984)).
“When established governmental policy, as expressed or implied by
statute, regulation, or agency guidelines, allows a [g]overnment agent to
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exercise discretion, it must be presumed that the agent’s acts are
grounded in policy when exercising that discretion.” Id. at 324, 111 S.
Ct. at 1274. Our inquiry does not focus either on the subjective intent
of the government agent, id. at 325, 111 S. Ct. at 1275, or on whether
the agent actually weighed policy considerations, OSI, Inc., 285 F.3d at
950-51, but “on the nature of the actions taken and on whether they are
susceptible to policy analysis,” Gaubert, 499 U.S. at 325, 111 S. Ct. at
1275. To succeed, the [plaintiff] must establish “that the challenged
actions are not the kind of [discretionary] conduct that can be said to be
grounded in the policy of the regulatory regime.” Id. Such conduct
includes, for example, “dr[iving] an automobile on a mission connected
with . . . official duties.” Id. at 325 n. 7, 111 S. Ct. at 1275 n. 7.
Cranford v. United States, 466 F.3d 955, 958 (11th Cir. 2006) (alteration to case cites
and third textual alteration supplied, other alterations in original).
Defendant asserts that all of the actions it took in maintaining the Oak Grove
Campground were discretionary, because there were no violations of mandatory
regulations or policies pursuant to which it lacked judgment or choice. See Autrey,
992 F.2d at 1526 (“We must first determine whether the challenged act or omission
violated a mandatory regulation or policy that allowed no judgment or choice.”)
(citing Gaubert, 499 U.S. 315, 322). Stated affirmatively, the United States asserts
that it always possessed judgment or choice, and that all applicable regulations and
policies were permissive and discretionary. The evidence does not support that
argument. For example, the Corps’ “Public Use Area Safety” policy states:

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All buildings, grounds and facilities are inspected on a daily basis
by roving ranger patrol and monthly through a critical parts inspection.
These inspections are for the purpose of locating any hazards that may
pose a threat to life or property. Items to inspect that may constitute a
safety hazard are: dead or fallen trees, broken fixtures or jagged edges
in restroom facilities, pot holes or unsafe road conditions, assuring that
signs, guardrails and fences that could result in injury [sic], check
electrical boxes for exposed or frayed wiring, any dangerous conditions
are reported to the assistant manager and corrective actions are
immediately taken.6
The Corps employees at Sardis Lake actually added to that Safety policy by
requiring that “Critical Parts Inspections,” or “Critical Parts Inventories,” be
conducted twice each month during the “recreation season,” which lasted from March
1 to October 31 of each year.7 Each Park Ranger was responsible for conducting
“Critical Parts Inspections” in one or more assigned recreation areas at Sardis Lake.8
The “Critical Parts Inventory” required a detailed inspection of up to 31 elements of
the assigned recreation area.9

The instructions for completing Critical Parts

6

Plaintiffs’ evidentiary submission, Tab E, at LeCompte_021009 (Public Use Area Safety)
(alteration and emphasis supplied).
7

Id. at LeCompte_022636 (Ranger SOP) (“During the recreation season, Critical Parts are
due to George Harris on the 15th and 30th of each month. . . . During the non-recreation season,
Critical Parts are due to George Harris no later than the 15th of each month.”). See also id. at
LeCompte_13493 (Critical Parts Inspections) (“Assigned Inspector will conduct inspections
according to frequency chart. Note any deficiency on inspection form and turn in to Area Ranger.”);
id. at LeCompte_v_US_011664 (Critical Parts Frequency chart) (stating that Critical Parts
Inventories should be conducted bi-monthly between March 1 and October 31, and monthly between
November 1 and February 28).
8

See id. at LeCompte_13493 (Critical Parts Inspections assignment chart).

9

See id. at LeCompte_v_US_011743 (Critical Parts Reporting Sheet) (listing all of the items
to be inspected, including, when applicable, roads, parking lots, lights, circuit breaker box, trash
cans, picnic tables, grills, fire rings, service tables, lantern hangers, outdoor showers, water
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Inspections specifically state that, when inspecting “grounds,” a Ranger should look
at “trees,” with the following instructions: “Limbs should be trimmed to no less than
7 1/2’ from the ground. Dead limbs/trees should be removed.”10
There is evidence that the Corps did not follow this policy. Prior to June 13,
2011, the date on which plaintiffs’ daughter was killed, no Critical Parts Inspections
had been performed for the Oak Grove Campground area since August 29, 2010, at
the latest.11 Defendant does not dispute the Rangers’ failure to conduct formal
Critical Parts Inspections during this time period. Instead, defendant asserts that the
failure to conduct the formal inspections is irrelevant, because Rangers “in fact
inspected the Oak Grove campground daily, especially in the summertime, for any

hydrant/fountain, fences, walkways, playground equipment, beaches, signs, bulletin boards, park
benches/swings, barricades, boat ramps, comfort stations (restrooms), fee booths, fish cleaning
stations, picnic shelters, trails, amphitheater, fishing tournament facilities, basketball courts, sewage
treatment plants, and paved camping pads).
10

Id. at LeCompte_v_US_011665.

11

See plaintiffs’ evidentiary submission, at Exhibit O (Critical Parts Inspection forms for Oak
Grove); see also defendant’s evidentiary submission, Tab 7 (Deposition of Kyle Donlevy), at 17-22.
Although this is how plaintiffs characterize the evidence in their brief, this statement actually
construes the evidence in the light most favorable to defendant. The last formal Critical Parts
Inspection form for the Oak Grove Campground was submitted on March 13, 2010, more than five
months earlier than the date stated by plaintiffs. Id. at LeCompte_13472-LeCompte_13473. Kyle
Donlevy, the Ranger in charge of inspecting the Oak Grove area, then sent an e-mail to his
supervisor, Robert Staten, on August 29, 2010, with the subject line “Critical Parts.” Donlevy stated
that, at Oak Grove, “Several dead trees need to be cut, they have been marked already though just
thought it might be a good idea to try and get them cut before Labor Day.” Id. at LeCompte_13455.
The court is considering that August 29, 2010 e-mail as the last Critical Parts Inspection form
submitted prior to the June 13, 2011 incident, even though such a characterization is charitable. In
any event, it is undisputed that the Critical Parts Inspection forms had not been submitted for at least
ten months before June 13, 2011 — a considerable amount of time.
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hazards that its employees on the ground could recognize.”12 However, those daily
inspections, or “Ranger Logs,” were more casual and less detailed than the formal
Critical Parts Inspections.13 Thus, as plaintiff asserts,
while it is undisputed that park rangers were likely in the Oak Grove
campground on a daily basis and had the opportunity to note any
hazards that they may have observed while performing their daily patrol,
the rangers’ mere presence in the campground does not constitute a
proper critical parts inspection, as the critical parts inspection is part of
the COE safety program, which requires a more thorough and in depth
inspection than that which is performed during a ranger’s daily patrol.14
At the very least, there are genuine issues of material fact with regard to
whether the Critical Parts Inspection policy was mandatory or discretionary, and
whether defendant followed that policy at the Oak Grove campground. Thus, this
court cannot find, as a matter of law, that the discretionary function exception to the
United States’ waiver of sovereign immunity applies, and summary judgment cannot
be granted in the United States’ favor.
IV. CONCLUSION AND ORDER
In accordance with the foregoing, defendant’s motion for summary judgment
is DENIED. This case will be set for pretrial conference and trial by separate order.

12

Doc. no. 30 (defendant’s reply brief), at 8.

13

Defendant’s evidentiary submission, Tab 3 (Deposition of Alton Pollan), at 67-71, 270-73.

14

Doc. no. 28 (plaintiffs’ response brief), at 24.
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DONE this 21st day of October, 2014.

______________________________
United States District Judge

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