Botell v. USA

Filing 18

ORDER signed by Judge Garland E. Burrell, Jr. on 10/17/2011 DENYING defendant's #11 Motion to Dismiss for Lack of Jurisdiction. (Marciel, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS BOTELL, JENNIFER BOTELL,
individually, and B.B. and K.B.,
minors, by and through their
Guardian ad Litem, JENNIFER
BOTELL,
Plaintiffs,

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v.

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The UNITED STATES OF AMERICA,

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Defendant.
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2:11-cv-01545-GEB-GGH
ORDER

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Defendant the United States of America seeks dismissal of

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Plaintiffs’ wrongful death, negligence, and negligent infliction of

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emotional

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12(b)(1), arguing “[t]he Court lacks jurisdiction over this lawsuit

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because the challenged actions are covered by the discretionary function

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exception to the Federal Tort Claims Act (‘FTCA’).” (Def.’s Mot. 1:9-

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11.) Plaintiffs oppose the motion.

distress

claims

under

Federal

Rule

of

Civil

Procedure

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This action concerns a fatal and nonfatal accident occurring

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on July 29, 2009, on Lassen Volcanic National Park’s Lassen Peak Trail

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(“Trail”). (Compl. 3:24-4:10.) Plaintiffs allege Defendant’s failure to

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maintain the Trail and failure to provide any warning regarding the

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danger on the Trail involved with these accidents causes Defendant to be

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liable for the fatality of Tommy Botell and the severe physical injury

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to Plaintiff K.B. Id. 3:15-19, 4:2-5.

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The FTCA waives sovereign immunity for tort claims arising out

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of “the negligent or wrongful act or omission of any employee of the

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Government while acting within the scope of his office or employment,

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under circumstances where the United States, if a private person, would

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be liable to the claimant in accordance with the law of the place where

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the act or omission occurred.” 28 U.S.C. § 1346(b)(1) (2010). However,

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the FTCA’s waiver of immunity is limited by many exceptions, including

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the discretionary function exception, which provides immunity from suit

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for “[a]ny claim . . . based upon the exercise or performance or the

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failure to exercise or perform a discretionary function or duty on the

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part of a federal agency or an employee of the Government, whether or

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not the discretion involved be abused.” 28 U.S.C. § 2680(a). “The burden

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of proving the applicability of the discretionary function exception is

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on the [Defendant].” Marlys Bear Med. v. United States ex. rel. Sec’y of

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Dep’t of Interior, 241 F.3d 1208, 1213 (9th Cir. 2001).

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The Supreme Court implemented “a two-step analysis to determine

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applicability of the [discretionary function] exception.” Terbush v.

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United States, 516 F.3d 1125, 1129 (9th Cir. 2008). The first step

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requires determining whether the challenged action “involve[s] an element

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of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322

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(1991). “The second [step] requires the court to determine whether the

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discretion left to the government is the kind of discretion protected by

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public policy, which is understood to include decisions grounded in

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social, economic, or political policy.” Myers v. U.S., --- F.3d ----,

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2011 WL 2816640, at *5 (9th Cir. 2011)(internal quotation marks omitted).

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Defendant’s

factual

showing

in

support

of

its

motion

is

premised on its asserted judgments or choices in its decisions concerning
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how the Trail was to be maintained and how the public was to be warned

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of any danger on the Trail. Defendant contends “there was no federal

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statute, regulation, or policy that specifically prescribed how or when

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the Trail’s rock walls should be maintained” or “how to warn of any

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dangers that the Trail, including its rock retaining walls, may have

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posed.” (Def.’s Mot. 10:17-20.) Even assuming, arguendo, that the issue

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is only whether Defendant’s alleged failure to maintain the Trail or to

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warn about any danger thereon was based on a discretionary decision,

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Defendant has failed to meet its burden in showing that it made a

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decision which “is of the kind that the discretionary function exception

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was designed to shield.” Gaubert, 499 U.S. at 322.

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Defendant supports its position that its decision concerning

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maintenance of the Trail was grounded in policy by citing to information

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in an Environmental Assessment that postdates the accidents, and to

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averments in two declarations regarding funding considerations concerning

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maintenance of the Trail that fail to state when the considerations were

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pondered. Further, Defendant supports its position that its decision

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concerning warning visitors about any dangers on the Trail was grounded

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in policy by citing to an averment in a declaration concerning an issued

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warning. However, the referenced averment fails to state whether the

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warning was issued after or before the subject accidents.

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Therefore, Defendant’s motion to dismiss for lack of subject

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matter jurisdiction is DENIED.

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Dated:

October 17, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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