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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 THOMAS BOTELL, JENNIFER BOTELL, individually, and B.B. and K.B., minors, by and through their Guardian ad Litem, JENNIFER BOTELL, Plaintiffs, 11 v. 12 13 The UNITED STATES OF AMERICA, 14 Defendant. ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2:11-cv-01545-GEB-GGH ORDER 15 16 Defendant the United States of America seeks dismissal of 17 Plaintiffs’ wrongful death, negligence, and negligent infliction of 18 emotional 19 12(b)(1), arguing “[t]he Court lacks jurisdiction over this lawsuit 20 because the challenged actions are covered by the discretionary function 21 exception to the Federal Tort Claims Act (‘FTCA’).” (Def.’s Mot. 1:9- 22 11.) Plaintiffs oppose the motion. distress claims under Federal Rule of Civil Procedure 23 This action concerns a fatal and nonfatal accident occurring 24 on July 29, 2009, on Lassen Volcanic National Park’s Lassen Peak Trail 25 (“Trail”). (Compl. 3:24-4:10.) Plaintiffs allege Defendant’s failure to 26 maintain the Trail and failure to provide any warning regarding the 27 danger on the Trail involved with these accidents causes Defendant to be 28 liable for the fatality of Tommy Botell and the severe physical injury 1 1 to Plaintiff K.B. Id. 3:15-19, 4:2-5. 2 The FTCA waives sovereign immunity for tort claims arising out 3 of “the negligent or wrongful act or omission of any employee of the 4 Government while acting within the scope of his office or employment, 5 under circumstances where the United States, if a private person, would 6 be liable to the claimant in accordance with the law of the place where 7 the act or omission occurred.” 28 U.S.C. § 1346(b)(1) (2010). However, 8 the FTCA’s waiver of immunity is limited by many exceptions, including 9 the discretionary function exception, which provides immunity from suit 10 for “[a]ny claim . . . based upon the exercise or performance or the 11 failure to exercise or perform a discretionary function or duty on the 12 part of a federal agency or an employee of the Government, whether or 13 not the discretion involved be abused.” 28 U.S.C. § 2680(a). “The burden 14 of proving the applicability of the discretionary function exception is 15 on the [Defendant].” Marlys Bear Med. v. United States ex. rel. Sec’y of 16 Dep’t of Interior, 241 F.3d 1208, 1213 (9th Cir. 2001). 17 The Supreme Court implemented “a two-step analysis to determine 18 applicability of the [discretionary function] exception.” Terbush v. 19 United States, 516 F.3d 1125, 1129 (9th Cir. 2008). The first step 20 requires determining whether the challenged action “involve[s] an element 21 of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322 22 (1991). “The second [step] requires the court to determine whether the 23 discretion left to the government is the kind of discretion protected by 24 public policy, which is understood to include decisions grounded in 25 social, economic, or political policy.” Myers v. U.S., --- F.3d ----, 26 2011 WL 2816640, at *5 (9th Cir. 2011)(internal quotation marks omitted). 27 28 Defendant’s factual showing in support of its motion is premised on its asserted judgments or choices in its decisions concerning 2 1 how the Trail was to be maintained and how the public was to be warned 2 of any danger on the Trail. Defendant contends “there was no federal 3 statute, regulation, or policy that specifically prescribed how or when 4 the Trail’s rock walls should be maintained” or “how to warn of any 5 dangers that the Trail, including its rock retaining walls, may have 6 posed.” (Def.’s Mot. 10:17-20.) Even assuming, arguendo, that the issue 7 is only whether Defendant’s alleged failure to maintain the Trail or to 8 warn about any danger thereon was based on a discretionary decision, 9 Defendant has failed to meet its burden in showing that it made a 10 decision which “is of the kind that the discretionary function exception 11 was designed to shield.” Gaubert, 499 U.S. at 322. 12 Defendant supports its position that its decision concerning 13 maintenance of the Trail was grounded in policy by citing to information 14 in an Environmental Assessment that postdates the accidents, and to 15 averments in two declarations regarding funding considerations concerning 16 maintenance of the Trail that fail to state when the considerations were 17 pondered. Further, Defendant supports its position that its decision 18 concerning warning visitors about any dangers on the Trail was grounded 19 in policy by citing to an averment in a declaration concerning an issued 20 warning. However, the referenced averment fails to state whether the 21 warning was issued after or before the subject accidents. 22 Therefore, Defendant’s motion to dismiss for lack of subject 23 matter jurisdiction is DENIED. 24 Dated: October 17, 2011 25 26 27 GARLAND E. BURRELL, JR. United States District Judge 28 3

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