Albertson et al v. Fremont County Idaho et al

Filing 119

MEMORANDUM DECISION AND ORDER granting in part and denying in part 80 Motion for Summary Judgment; granting in part and denying in part 88 Motion for Summary Judgment; denying 102 Motion to Strike ; denying 106 Motion to Strike. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JANINE C. ALBERTSON,
individually; BNA, a minor,
individually; and the ESTATE OF
JAMES L. ALBERTSON,

Case No. 4:09-cv-00598-CWD
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
FREMONT COUNTY, IDAHO, a
political subdivision; UNITED
STATES OF AMERICA, the
government of the United States of
America, MICHAEL T. BENSON,
individually; and DOES A through J,
fictitiously named,
Defendants.

INTRODUCTION
On February 1, 2009, James Albertson sustained fatal injuries while snowmobiling
on a groomed trail within in the Caribou-Targhee National Forest located in Fremont
County, Idaho. The accident occurred when Mr. Albertson drove onto the state highway
at an intersection in the trail, and collided with a passing mini van. Plaintiffs – Janine
Albertson (the deceased’s wife), BNA (the minor child of the deceased), and the Estate of
James Albertson – seek relief against Fremont County and the United States of America

MEMORANDUM DECISION AND ORDER - 1

(the “United States”) for wrongful death and negligence, alleging that the defendants
failed to maintain the snowmobile trail in a reasonably safe condition and, in particular,
failed to place or maintain traffic control signals and warning signs indicating hazardous
or dangerous conditions.
Before the Court are Fremont County’s Motion for Summary Judgment, (Dkt. 80),
and the United States’ Motion for Summary Judgment. (Dkt. 88.) Defendants argue,
among other things, that they are immune from suit under Idaho’s Recreational Use
Statute, which provides immunity to those who make their land available to the public for
recreational use without charge. Fremont County and the United States also have filed
motions to strike or disregard several exhibits that Plaintiffs submitted in opposition to
Defendants’ motions for summary judgment. (Dkt. 102, 106.)
The parties presented oral argument on the motions on October 20, 2011. At the
conclusion of the hearing, the Court ordered supplemental briefing on an issue raised by
the United States in its reply brief in support of its motion for summary judgment. All of
the issues now have been fully briefed and the motions are ripe for adjudication. Having
fully reviewed the motions, the parties’ memoranda and supplemental materials filed in
support of each party’s position, and for the reasons discussed below, both of Defendants’
motions for summary judgment will be granted as to Plaintiffs’ claims for negligence per
se and denied as to Plaintiffs’ claims for ordinary negligence. Defendants’ motions to
strike will be denied.
BACKGROUND
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The Caribou-Targhee National Forest, managed by the United States Forest
Service (the “Forest Service”), contains over 500 miles of groomed winter recreational
snowmobile trails. Prior to February 1, 2009, the date Mr. Albertson sustained his fatal
injuries, the Forest Service and Fremont County entered into various agreements
concerning the operation and maintenance of a winter trail system within the forest.
Plaintiffs claim that these agreements created duties on the part of the Forest
Service and Fremont County, and that Defendants breached their duties by failing to
maintain the snowmobile trails in accordance with the agreements. During the 2008-2009
winter season, and at the time of the accident in this case, the Forest Service, Fremont
County and the Idaho Department of Parks and Recreation were operating under a CostShare Agreement. (Dkt. 81 at 8.) The purpose of the Cost-Share Agreement was “to
document the cooperation among the parties for the groomed snowmobile trails program
within the boundaries of State Designated Snowmobile Areas #22a and 22b in Fremont
County.” (Id.) Pursuant to the Cost-Share Agreement, the Forest Service and Fremont
County mutually agreed to develop and implement an Annual Operating Plan and a Sign
Plan. (Id. at 11.)
The Cost-Share Agreement and the Annual Operating Plan assign various
responsibilities related to the operation and maintenance of the trail system. For instance,
the Annual Operating Plan provides that “The County Shall . . . [a]ssist the Forest Service
with trail maintenance, as necessary, to keep the snowmobile trails open and safe[,]” and
“[i]n cooperation with the Forest Service, [the County shall] mark trails, install sign[s] on
MEMORANDUM DECISION AND ORDER - 3

trails and trailheads as necessary and as designated in the attached Sign Plan.” (Dkt. 9813) (capitalization omitted). The Sign Plan, referenced in both the Cost-Share Agreement
and the Annual Operating Plan, lists the junctions along the trail system and sets forth the
type of signs required to be installed at each junction. (Dkt. 98-12.) The Annual
Operating Plan also requires the Sign Plan to be in compliance with the federal standards
set forth in a document entitled EM-7100-15, Standards for Forest Service Signs and
Posters. (Id.)
The parties, in their briefing, directed the Court to several other documents
concerning the installation of, and standards governing, signs along the snowmobile trail.
These documents relate to the alleged legal obligations of the Forest Service and Fremont
County and will be addressed in more detail below in the Court’s discussion of the
parties’ duties.
Pursuant to the Cost-Share Agreement, the costs of operating the groomed winter
trail program are shared among the County, the State of Idaho, and the Forest Service.
(Dkt. 81 at 8.) It is undisputed that non-resident and resident snowmobile owners are
charged mandatory registration fees for use of snowmobiles within the State of Idaho. See
Idaho Code §§ 67-7103 and 67-7104. The fees are collected by vendors and then remitted
to the Idaho Department of Parks and Recreation. Idaho Code § 67-7106. Snowmobile
owners can designate a county or snowmobile area to receive a portion of their
registration fee.
Under the Cost-Share Agreement, the Idaho Department of Parks and Recreation is
MEMORANDUM DECISION AND ORDER - 4

required to “disburse snowmobile registration funds to the County for use in the operation
and maintenance of the grooming program.” (Id.) Moreover, the Cost-Share Agreement
provides for the institution of a County Snowmobile Advisory Committee, which includes
representatives of the Forest Service, and advises “on the use and expenditures of funds
for the grooming program.” (Dkt. 81.)
Plaintiffs allege that the Forest Service “has in fact received a portion of the funds
disbursed to Fremont County to purchase traffic counters, print trail maps, pay for law
enforcement on the trails by the Forest Service and subsidize [the Forest Service’s] law
enforcement training.” (Pl.s’ Statement of Material Facts in Dispute with the United
States, Dkt. 98-2 at 3.) It is undisputed that Mr. Albertson paid a registration fee of
$32.50 on January 30, 2009, and designated an area within Fremont County as the use
area to receive a portion of his fee distributed under the above program.
Idaho State Highway 20 is the main thoroughfare for vehicular traffic through
Fremont County and, at various locations, crosses the groomed winter recreation
snowmobile trails located in the Caribou-Targhee National Forest. One of those crossings
is at Junction 57, where the Chick Creek trail crosses Highway 20 near Ponds Lodge,
Idaho. The Sign Plan called for three signs on each side of Highway 20 – a Stop sign, a
Stop Ahead sign, and an Intersection Ahead sign.
On the morning of February 1, 2009, a group of twelve recreational snowmobilers,
including James Albertson, were riding snowmobiles from West Yellowstone, Montana,
to Ponds Lodge. As Mr. Albertson traveled westbound on Chick Creek Trail approaching
MEMORANDUM DECISION AND ORDER - 5

Junction 57, he rode from the trail onto Highway 20 and collided with a passing van
driven by Michael Benson. The injuries sustained during the collision resulted in Mr.
Albertson’s death.
Following Mr. Albertson’s death, Plaintiffs filed an action against Fremont
County, the City of Island Park, and Michael Benson.1 (Dkt. 1.) The City of Island Park
was dismissed from the case, and Plaintiffs later sought, and were granted, leave to add
the United States as a defendant.2 (Dkt. 45.) In their Second Amended Complaint, (Dkt.
43), Plaintiffs allege that the Forest Service and Fremont County failed to operate and
maintain the snowmobile trail in a reasonably safe condition and that Mr. Albertson’s
death was the result of the Defendants’ negligence. Specifically, Plaintiffs allege that, of
the three signs required to be installed by the Sign Plan, only the Stop sign was present on
the day of the accident and it was obscured by a pine tree and could not be seen by
snowmobilers approaching the intersection. Plaintiffs further allege that two additional
warning signs (a Stop Ahead sign and an Intersection Ahead sign) should have been

1

The Court granted Mr. Benson’s motion for summary judgment and dismissed
Plaintiffs’ claims against him on July 27, 2011. (Dkt. 78.)
2

Plaintiffs initially sought leave to add the Forest Service as a defendant. (Dkt.
26.) The Forest Service thereafter filed a motion to dismiss based on the contention that
the United States (rather than the Forest Service or the Island ark Ranger District) was the
proper party under the Federal Tort Claims Act. (Dkt. 35.) Plaintiffs then sought leave to
amend their complaint to add the United States as a defendant. (Dkt. 38.) On December 2,
2010, the Court granted the Forest Service’s motion to dismiss and Plaintiffs’ motion to
amend. (Dkt. 45.) The United States is now the sole federal defendant in this case. (See
Second Amended Complaint and Demand for Jury Trial, Dkt. 43.)
MEMORANDUM DECISION AND ORDER - 6

installed in accordance with the Sign Plan, but that on the day of the accident neither was
present. Finally, Plaintiffs contend that Defendants’ failure to install and maintain the
appropriate signs on the trail in accordance with the Sign Plan (and other standards
governing the placement of signs on the trail) was exasperated by the fact that the trail
was laid out and groomed with a sharp right-hand turn immediately prior to the Stop sign.
Plaintiffs claim that the lay out of the trail created a dangerous condition, making it hard
for snowmobile operators to appreciate the danger of the approaching highway and
further obscuring the already obscured Stop sign at the intersection.
It is disputed whether some type of warning sign (other than the Stop sign at the
intersection) was properly posted at the time of the accident. Plaintiffs claim that no
warning sign was posted and the United States recognizes in its motion for summary
judgment that, “[s]hortly after the accident, Fremont County discovered that the stop
ahead sign that had been posed east of the highway crossing near Junction 57 was missing
or knocked down.” (Dkt. 88-1 at 4.) The United States’ motion for summary judgment
also states that “[n]o one knows who knocked the stop ahead sign down or when that sign
was knocked down.” (Id.) The parties have submitted a significant amount of deposition
testimony and other evidence in support of their positions concerning whether the
warning sign was (or was not) properly posted at the time of the accident. These facts, as
they relate to the disposition of the motions presently before the Court, will be addressed
below.
DISCUSSION
MEMORANDUM DECISION AND ORDER - 7

1.

Defendants’ Motions to Strike
In response to the motions for summary judgment filed by the United States and

Fremont County, Plaintiffs filed numerous exhibits in support of their position that
neither defendant is entitled to judgment as a matter of law. (Dkt. 98.) All of the exhibits
are attached to the declaration of Plaintiffs’ counsel, William L. Mauk. (Dkt. 98-3.)
Fremont County and the United States both move the Court, through separate motions, for
an order striking several of the exhibits attached to Mr. Mauk’s declaration. (Dkt. 102,
106.) Defendants argue that much of the testimony and many of the exhibits submitted
through Mr. Mauk’s declaration are either inadmissible or submitted in an inadmissible
form, and therefore should be stricken or disregarded by the Court when considering the
motions for summary judgment.3
Rule 56 of the Federal Rules of Civil Procedure requires that “affidavit[s] or
declaration[s] used to support or oppose a motion [for summary judgment] must be made

3

The Court notes that “the Federal Rules of Civil Procedure do not provide for a
motion to strike documents or portions of documents other than pleadings.” U.S. v. Crisp,
190 F.R.D. 546, 550 (E.D. Cal. 1999). Specifically, “a court may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). Put simply, “[a] motion to strike is limited to pleadings.” Crisp, 190
F.R.D. at 551 (citing Sidney Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.
1983). Pleadings are defined by Fed. R. Civ. P. 7(a). Exhibits attached to a declaration
filed in support of, or in opposition to, a motion for summary judgment are not pleadings.
See Aftergood v. Central Intelligence Agency, 355 F.Supp. 2d 557, 564 (D.D.C. 2005)
(“Thus, by the plain terms [of] Rule 12(f), the rule cannot be used to strike an affidavit.”).
In light of these rules, the motions to strike filed in this case will be construed as
objections to the materials filed by the Plaintiffs in support of their opposition to
Defendants’ motions for summary judgment.
MEMORANDUM DECISION AND ORDER - 8

on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4). Rule 56 also provides that “[a] party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible in
evidence.” Fed. R. Civ. P. 56(c)(2). Given the language of Rule 56(c), the Court of
Appeals for the Ninth Circuit repeatedly has held that unauthenticated documents cannot
be considered in opposition to a motion for summary judgment. See, e.g., Cristobal v.
Siegel, 26 F.3d 1488, 1494 (9th Cir. 1994). And, a statement in an attorney’s affidavit that
an exhibit is a “true and correct copy” has been held not to provide authentication where
the attorney lacked personal knowledge to authenticate the document. Beyene v. Coleman
Sec. Serv., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988).
Under Rule 56(e), if a party’s materials in support or opposition to summary
judgment fail to meet the requirements of Rule 56(c), the Court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials – including the
facts considered undisputed – show that the movant is entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e).
On October 7, 2011, the Court ordered expedited briefing on Defendants’ motions
to strike so that the motions to strike and the motions for summary judgment could be

MEMORANDUM DECISION AND ORDER - 9

argued by the parties, and considered by the Court, at the same time. (Dkt. 110.) In their
response to Defendants’ motions to strike, Plaintiffs filed supplemental materials, which
largely cured the evidentiary deficiencies asserted by Defendants. Based on Plaintiffs’
supplemental materials, the United States withdrew its objections to all but four of the
exhibits attached to Mr. Mauk’s declaration. Fremont County, on the other hand, has not
withdrawn its objections and argues that, even if the deficiencies have been cured, the
Court should nonetheless strike the exhibits because they were not properly filed in the
first instance.
The Court heard oral arguments on Defendants’ motions on October 20, 2011.
During the hearing, the United States and Fremont County conceded that the alleged
evidentiary defects related to the materials attached to Mr. Mauk’s declaration largely had
been cured. Having considered the parties’ arguments and materials submitted on the
motions, the Court finds that Plaintiffs’ supplemental materials cured most of the
evidentiary defects alleged by Fremont County and the United States in their motions to
strike. To the extent that the alleged defects have been cured, the Court will not accept
Fremont County’s invitation to strike Plaintiffs’ materials, which now meet the
requirements of Rule 56(c), on the basis that they were not properly filed in the first
instance. To the extent that Defendants maintain their objections to certain exhibits
attached to Mr. Mauk’s declaration (on grounds other than authentication or lack of

MEMORANDUM DECISION AND ORDER - 10

foundation, which have been cured), the challenged materials will be addressed below.4
A.

Expert Report of Kim Raap

In opposition to Defendants’ motions for summary judgment, Plaintiffs have
submitted an expert report prepared by Kim Raap. The report is attached to Plaintiffs’
counsel’s declaration as Exhibit A and filed with the Court on a compact disc. (Dkt. 98-3
at 3.) Fremont County and the United States both filed motions to strike the report on the
ground that it had not been properly authenticated. As indicated above, Plaintiffs have
filed supplemental materials laying the foundation for the expert report. (See Dkt. 110-4.)
Fremont County continues to oppose the Court’s consideration of the expert report
in connection with its motion for summary judgment, arguing that the Court should not
consider the report because Plaintiffs did not properly authenticate the document in the
first instance. As noted above, Rule 56(e) authorizes the Court to allow a party to cure
evidentiary deficiencies associated with materials filed in support or opposition to a
motion for summary judgment. Because Plaintiffs already have cured the evidentiary
deficiency associated with Mr. Raap’s report, the Court finds that it would not be

4

The United States originally objected to Exhibit 38 attached to Mr. Mauk’s
declaration. Exhibit 38 is a news article published in the Island Park News concerning
Mr. Albertson’s death and contains e-mail statements made by Fremont County Director
of Parks and Recreation Tamra Cikaitoga. (Dkt. 98-7.) The United States maintained its
objection to Exhibit 38, even after Plaintiffs filed their supplemental materials, with the
following qualification: “To the extent the Plaintiffs are limiting their use of this exhibit
to Ms. Cikaitoga’s own statements and e-mail messages, the United States has no
objection to this exhibit.” (Dkt. 113 at 7.) Plaintiffs made clear at the hearing on the
motions that their use of the exhibit is limited to Ms. Cikaitoga’s statements and the
United States withdrew its motion to strike that particular exhibit.
MEMORANDUM DECISION AND ORDER - 11

appropriate to disregard the exhibit in this case and Fremont County’s opposition to the
Court’s consideration of the exhibit is overruled.
Aside from the report’s alleged evidentiary deficiency, the United States objects to
Mr. Raap’s expert report on an additional ground. Specifically, the United States objects
to statements contained in the report related to the layout and design of the snowmobile
trail. Plaintiffs refer to Mr. Raap’s report in their opposition to Defendants’ motions for
summary judgment and state that one of the issues in this case, as explained by Mr. Raap,
involves a design defect in the trail system. Plaintiffs argue that this defect rendered the
trail unsafe.
The United States argues that the “design” of the snowmobile trail was not raised
in Plaintiffs’ complaint and therefore should not be considered by the Court. The gist of
the Unites States’ argument is that Plaintiffs did not plead negligent design in their
complaint, and that since the United States was not given notice of the “negligent design
claim,” Plaintiffs should not be allowed to raise the claim through Mr. Raap’s expert
report. Based on this argument, the United States “requests that the Court disregard, strike
and/or deem waived any and all ‘design allegations’ from the record and preclude Mr.
Raap from offering any opinions concerning the design, layout and/or alignment of any of
the trails on the Forest, including Chick Creek Trail.” (Dkt. 106 at 6.)
Like the United States, Fremont County argues that Plaintiffs may not raise this
issue because it was not properly pled in Plaintiffs’ complaint. Fremont County addresses
the issue in its reply brief in support of its motion for summary judgment. (Dkt. 105.) The
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County asks the Court to rule as a matter of law that Plaintiffs may not raise a negligence
claim based on the “design” of the trail.5
For the reasons set forth below, the Court finds that the statements contained in
Mr. Raap’s expert report concerning the layout of the snowmobile trail do not exceed the
scope of Plaintiffs’ complaint. The United States’ motion to strike portions of Mr. Raap’s
expert report, and Fremont County’s request for a ruling that Plaintiffs may not raise the
design issue, will therefore be denied.
Mr. Raap’s report includes a section entitled “Conditions Present On February 1,
2009 Which Contributed To Mr. Albertson’s Fatal Crash.” (Expert Report of Kim Raap at
25-33, Dkt. 99.) In that section, Mr. Raap identifies three factors that he believes
contributed to Mr. Albertson’s death: (1) “Trail design, layout, and alignment”; (2) Trail
signing, monitoring, and maintenance”; and (3) “Trail maintenance related to brushing
and clearing.” (Id. at 25-26.) Mr. Raap opines that the layout of the trail section at issue in
this case created an unsafe condition and contributed to Mr. Albertson’s accident. (Id. at
30.) Mr. Raap bases his conclusion on the fact that, due to the configuration of the trail,
snowmobile riders were required to make an “abrupt turn in the trail before being
confronted with the highway previously hidden from their view.” (Id.) Mr. Raap also
indicates that the turn in the trail made it difficult for riders approaching the highway to

5

For the purposes of this order, the Court will treat Fremont County’s argument
as an objection to the report and consider it along with the United States’ argument
concerning the layout of the trail.
MEMORANDUM DECISION AND ORDER - 13

see the Stop sign at the intersection. (Id.) According to Mr. Raap, “immediately after
negotiating the last bend in the approach route to the highway – riders must immediately
turn their snowmobile to the right to ‘square-up’ with the Stop sign and highway
crossing.” (Id.)
The Court finds that Mr. Raap’s opinions concerning the layout of the snowmobile
trail do not exceed the scope of the allegations contained in Plaintiffs’ complaint.
Plaintiffs generally contend that the intersection of Highway 20 and the Chick Creek Trail
constituted a dangerous condition that Defendants knew or should have known could
cause serious injury or death. Plaintiffs allege in their complaint that Defendants had the
“duty to operate and maintain the snowmobile trails in a reasonably safe condition, so as
to minimize, if not eliminate, all obvious or appreciated hazards or dangers presenting a
risk of death or serious injury.” (Pl.s’ Sec. Am. Compl. ¶ 61(a), Dkt. 43 at 12.) Plaintiffs’
complaint also alleges that Defendants had the duty “to regularly and systematically
inspect the public snowmobile trails . . . for unsafe, defective or dangerous conditions,
including missing, damaged or obstructed traffic control and warning signs and to
remove or remedy such conditions, or to adequately warn the traveling public of such
unsafe, defective and dangerous conditions.” (Id. at ¶ 61(e).) Similarly, Plaintiffs’
complaint alleges that “each of the governmental Defendants failed to develop,
implement and take measures and precautions necessary, proper and prudent to protect
Jimmy Albertson from the collision that caused his death.” (Id. at ¶ 63.)
The Court recognizes, and Plaintiffs concede, that their complaint focuses on
MEMORANDUM DECISION AND ORDER - 14

Defendants’ alleged failure to install and maintain the signs on Chick Creek Trail.
However, the allegations in Plaintiffs’ complaint are not limited to the signage issue.
Plaintiffs’ complaint refers to “unsafe, defective or dangerous conditions” and
Defendants’ duty to “remove or remedy such conditions.” The complaint also alleges that
Defendants had the “duty to operate and maintain the snowmobile trails in a reasonably
safe condition, so as to minimize, if not eliminate, all obvious or appreciated hazards.”
This is precisely what Mr. Raap states that the Defendants failed to do.
Plaintiffs claim that Mr. Albertson did not appreciate the danger of the
approaching highway and that his failure to appreciate the danger was caused by
Defendants’ failure to maintain the snowmobile trail in a reasonably safe condition.
Plaintiffs’ complaint focuses on Defendants’ alleged failure to properly install and
maintain the signs along Chick Creek Trail. The complaint also does, however, reference
the “turn” Mr. Albertson made before coming within view of the intersection and its close
proximity to the highway. (Pl.s’ Second Am. Compl. at ¶ 32.) The complaint also
references an accumulation of snow at the highway intersection and foliage obstructing
the view of the existing Stop sign. These factual allegations, in combination with the
duties alleged in the complaint as outlined above, adequately notified the Defendants for
the purposes of Rule 8 of the Federal Rule of Civil Procedure that the condition of the
trail – including its proximity and orientation to the highway – would be at issue.
The Court’s conclusion is further supported by the statements of the Forest Sign
Coordinator of the Caribou-Targhee National Forest, Tom Brown, who has testified that
MEMORANDUM DECISION AND ORDER - 15

the placement of signs along the snowmobile trail depends upon the “terrain features” of
the approach, sight distance, the visualization triangle, trees and brush. (Brown Dep.
84/15-85/13, Dkt. 98-43.) In other words, the placement of signs, which is undisputedly
the primary focus of Plaintiffs’ complaint, is directly related to the terrain features of the
trail, which the Court finds encompasses the layout of the trail.
B.

Photographs of Highway Crossing Sign

The United States and Fremont County both object to Exhibits B and C attached to
Mr. Mauk’s declaration. (Dkt. 98-26 and 98-27.) The exhibits are photographs that
Plaintiffs claim were produced by the Idaho Transportation Department in a companion
state court case involving Mr. Albertson’s accident. The photographs both show a yellow
“Highway Crossing Ahead” sign lying on the ground. Defendants initially objected to the
exhibits on the ground that they were not properly authenticated. In response, Plaintiffs
filed the supplemental affidavit of Farrell Wray, who purports to have taken the
photographs on July 14, 2009. (Dkt. 110-33.) Both Defendants continue to object to the
photographs and point out that they were not taken until months after the accident. (Dkt.
112 at 7; Dkt. 113 at 7.) Given that the photographs were taken months after the accident,
the United States objects to their relevance. Specifically, the United States argues that
Plaintiffs have not supplied the foundation to determine “wether these two photographs
accurately depict the sign that had been set in the ground adjacent to Chick Creek Trail
prior to February 1, 2009 (as opposed to the temporary sign that was placed in a
snowbank following the accident).” (Dkt. 113 at 7.)
MEMORANDUM DECISION AND ORDER - 16

Plaintiffs argued at the hearing on the motions to strike that the photographs are
relevant because they tend to corroborate the factual allegation that the warning sign was
buried under the snow at the time of the accident. Plaintiffs also assert that the
photographs impeach the deposition testimony of a Fremont County trail groomer, who
testified that he recalled seeing a “Stop Ahead” sign two days before the accident.
The Court finds that it is not necessary to address this evidentiary issue at this
time. The record contains other materials supporting Plaintiffs’ factual allegation that no
warning sign was posted on the day of the accident and the Court is not required to rely
upon the challenged photographs to find disputed material facts on this issue. If
Defendants wish to challenge the relevance of the photographs under Rule 401 of the
Federal Rules of Evidence, they may do so in a motion in limine.

C.

Deposition Excerpts of David Claycomb

Both Defendants ask the Court to strike excerpts from the deposition of David
Claycomb (a state of Idaho employee who was deposed in the pending state court
companion case) because neither of the defendants in this case are parties to the state
court action. In response, Plaintiffs direct the Court to Gulf USA Corporation v. Federal
Insurance Company, 259 F.3d 1049 (9th Cir. 2001), in which the Ninth Circuit stated:
Sworn deposition testimony may be used by or against a party
on summary judgment regardless of whether the testimony
was taken in a separate proceedings. Curnow v. Ridgecrest
Police, 952 F.2d 321, 324 (9th Cir. 1991). Such testimony is
considered to be an affidavit pursuant to Federal Rule of Civil
MEMORANDUM DECISION AND ORDER - 17

Procedure 56(c), and may be used against a party on summary
judgment as long as the proffered depositions were made on
personal knowledge and set forth facts that were admissible in
evidence.
259 F.3d at 1056.
The United States conceded the point and withdrew its objection. (Dkt. 113 at 2.)
Fremont County continues to argue, however, that the deposition testimony should be
stricken. (Dkt. 112 at 8.) The Court disagrees. As the United States points out, the dicta
cited by Plaintiffs from the Gulf USA case has been endorsed by the Ninth Circuit in a
later opinion. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 779 n.27 (9th Cir.
2002). Fremont County’s objection to the Court’s consideration of the deposition
testimony of David Claycomb will therefore be overruled.

2.

Defendants’ Motions for Summary Judgment
A.

Legal Standard

Fremont County and the United States, through separate motions, move the court
for an order granting summary judgment under Rule 56 of the Federal Rules of Civil
Procedure and seek the dismissal of all of Plaintiffs’ claims. (Dkt. Nos. 80 and 88.)
Summary judgment is appropriate when, viewing the facts in the light most favorable to
the nonmoving party, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the
initial burden of stating the basis for its motion and identifying those portions of the

MEMORANDUM DECISION AND ORDER - 18

record demonstrating the absence of genuine issues of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). “If the party moving for summary judgment meets
its initial burden of identifying for the court those portions of the material on file that it
believes demonstrates the absence of any genuine issues of material fact,” the burden of
production shifts and “the non moving party must set forth, by affidavit or as otherwise
provided in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’” T.W.
Electrical Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.
1987) (quoting Fed. R. Civ. P. 56(e)).

B.

Immunity under the Idaho Recreational Use Statute

Fremont County and the United States both argue that they are immune from
liability under Idaho’s Recreational Use Statute, I.C. § 36-1604.6 The Recreational Use
Statute (“RUS”) provides immunity to those who make their land available to the public
for recreational use without charge. The express purpose of the statute is to “encourage

6

The United States points out that, under the Federal Tort Clams Act, it may only
be held liable for tort claims “in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 2674. As stated by the United States
Supreme Court, “the test established by the Tort Claims Act for determining the United
States’ liability is whether a private person would be responsible for similar negligence
under the laws of the state where the acts occurred.” Rayonier, Inc. v. United States, 352
U.S. 315, 319 (1957).
MEMORANDUM DECISION AND ORDER - 19

owners of land to make land, airstrips and water areas available to the public without
charge for recreational purposes by limiting their liability toward persons entering thereon
for such purposes.” I.C. § 36-1604(a). The statute confers immunity if three conditions
are met: (1) the person or entity asserting immunity must be an “owner” within the
meaning of the statute; (2) the owner must have permitted the person to enter the property
“without charge”; and (3) the use of the property must be for recreational purposes. I.C. §
36-1604(d).7
There is no dispute that Mr. Albertson was using the land for recreational
purposes. The remaining questions are whether Fremont County and the United States are
“owners” of the land withing the meaning of the statute and whether Fremont County and
the United States “charged” Mr. Albertson for using the property.
(1)

7

Whether Fremont County and the United States are “owners”
within the meaning of the Idaho RUS

The applicable provision provides as follows:

(d) Owner Assumes No Liability. An owner of land or equipment who either
directly or indirectly invites or permits without charge any person to use such
property for recreational purposes does not thereby:
1. Extend any assurance that the premises are safe for any purpose.
2. Confer upon such person the legal status of an invitee or licensee to whom a
duty of care is owed.
3. Assume responsibility for or incur liability for any injury to person or property
caused by an act of omission of such persons.
I.C. § 36-1604(d).
MEMORANDUM DECISION AND ORDER - 20

The Idaho RUS defines “owner” as “the possessor of a fee interest, a tenant,
lessee, occupant or person in control of the premises.” I.C. § 36-1604(b)(3). There is no
real dispute in this case that the United States is an “owner” of the land in question within
the meaning of the statute.8 Plaintiffs challenge, however, the proposition that Fremont
County is an “owner” within the meaning of the statute.
Fremont County argues that it was both an occupant and one of the entities in
control of the premises, and was therefore an “owner” entitled to immunity under the
statute. In support of its position, Fremont County directs the Court to the Cost-Share
Agreement between the County and the Forest Service, which describes the parameters of
the County’s occupancy of the national forest and provides the County with control of the
snowmobile trails to establish an operate the trail system. The Cost-Share Agreement
provides that “[t]he County has an interest in maintaining groomed snowmobile trail
systems . . . [and] benefits by providing services to recreational users.” (Dkt. 81 at 8.) The
agreement further provides that the County shall “[a]ccept the responsibility for the
snowmobile trail grooming program in State Designated Areas #22a and 22b” and
“[g]room, utilizing trained personnel, all mutually agreed upon trails, including those on

8

In their response brief in opposition to Defendants’ motions for summary
judgment, Plaintiffs state that, “[p]resumably, the United States of America is the
possessor of a fee interest in the snowmobile trails in the [Caribou-Targhee National
Forest,]” but suggests that the United States has offered no proof of such ownership. (Dkt.
98 at 13.) The Court disagrees; as the United States points out, the record in this case,
including Plaintiffs’ Second Amended Complaint, makes clear that the snowmobile trail
at issue is located on federal land.
MEMORANDUM DECISION AND ORDER - 21

National Forest System lands.” (Id. at 9.) Based on these responsibilities, the County
argues that its presence in the forest, coupled with responsibilities concerning the
maintenance of the snowmobile trails, made it an occupant or entity in control of the
relevant land for the purpose of the Idaho RUS.
In response, Plaintiffs argue that “occupant” should be defined as a person or
entity with the authority to grant or deny access to the land for recreational purposes.
(Dkt. 98 at 11.) The County does not dispute that it lacks the authority to exclude people
from the national forest or the snowmobile trail system. (Dkt. 105 at 3.)
The Court finds Plaintiffs’ interpretation of “owner” more in line with the
language and purpose of the Idaho RUS. First, the purpose of the statute is to encourage
land owners to make their land available to the public. Here, the County admits that it
could neither grant admittance nor deny access to use of the snowmobile trails. In other
words, defining the County as an “owner” entitled to immunity would not further the
purpose of the statute because it was not the County’s decision to open the land to the
public.
Second, the definition in the statute suggests that, to be considered an “owner,” the
person or entity must have the authority to permit or exclude individuals from the land.
The statute defines “owner” as “the possessor of a fee interest, a tenant, lessee, occupant
or person in control of the premises.” I.C. § 36-1604(b)(3). Looking at the above
definition, the Court notes that possessors of fee interests, tenants, and lessees all
ordinarily have the power to exclude persons from the land within their possession.
MEMORANDUM DECISION AND ORDER - 22

Moreover, Black’s Law Dictionary defines “occupant” as “[o]ne who has possessory
rights in, or control over, certain property or premises.” Black’s Law Dictionary 1106
(7th ed.1999.) This too suggests the right to exclude and is in line with the other examples
of “owner” listed in the statute.
The only example of an “owner” that does not necessarily suggest the authority to
exclude is “person in control of the premises.” However, even assuming the term
“control” does not imply the authority to exclude, given the other examples listed in the
statute, the Court finds that, to be an “owner” within the meaning of the Idaho RUS, the
person or entity must have the authority to exclude the public from the premises. See
Nelson v. City of Rupert, 911 P.2d 1111, 1113 (Idaho 1996) (stating that, when a city
leased property from private land owner, they “stepp[ed] into the shoes of [the owner] as
one ‘in control of the premises”).9
In sum, the Court concludes that the United States is an “owner” within the
meaning of the Idaho RUS and that Fremont County is not. Because Fremont County is
not an “owner” within the meaning of the Idaho RUS, it is not entitled to immunity under
the statute. The Court must determine, however, whether the other conditions of

9

At the hearing on the motions, Fremont County raised the alternative argument
that, if it is not an “owner” within the meaning of the statute, it necessarily follows that it
should not be held to have any duties associated with maintenance of the trail system.
This argument is a non sequitur. As Plaintiffs point out, if a private contractor entered
into an agreement with the Forest Service to groom the trails, there would be no question
as to its status as a non-owner under the Idaho RUS but it might still be subject to liability
for negligent work.
MEMORANDUM DECISION AND ORDER - 23

immunity under the Idaho RUS are satisfied as to the United States. Those conditions are
discussed below.
(2)

Whether Mr. Albertson was permitted to use the snowmobile trails
“without charge”

To be entitled to immunity under the Idaho RUS, the owner must have permitted
the person to enter the property “without charge.” The United States and Fremont County
argue that they did not charge Mr. Albertson, or any other person, for admittance onto the
snowmobile trails. Because it already has been determined that Fremont County is not an
owner, regardless of whether Mr. Albertson was charged a fee to use the property, the
County cannot be shielded from liability by the RUS. The United States, however, must
establish that Mr. Albertson was not charged a fee to be entitled to immunity under the
statute. For the reasons set forth below, the Court finds that Mr. Albertson was not
charged a fee to enter the property.
It is undisputed that the Idaho Code requires every snowmobile to be numbered
before it is used anywhere in the state of Idaho. Idaho Code § 67-7102. The owner of the
snowmobile must file an application for a number and pay a fee of $31.00. Idaho Code §
67-7103. With regard to out-of-state snowmobilers, Idaho Code § 67-7104 provides that
“the owner of a nonresident, noncommercial snowmobile shall not be required to comply
with the registration requirements of the state of Idaho, but shall be required to obtain a
nonresident snowmobile user certificate.” Out-of-state snowmobilers must pay a $31.00
fee, and it is undisputed that Mr. Albertson paid such a fee in this case. It also is

MEMORANDUM DECISION AND ORDER - 24

undisputed that, at the time of these payments, the snowmobile owner designates the
specific county snowmobile program in Idaho that will receive at least 85% of the fee.
Plaintiffs ague that the numbering fee described above constitutes a “charge”
within the meaning of the Idaho RUS and that, because Mr. Albertson was “charged” to
use his snowmobile in the State of Idaho, the United States is not immune from liability
under the statute. The United States argues that the snowmobile registration fee does not
constitute a charge for purposes of the Recreational Use Statute.
The Recreational Use Statute does not define the term “charge.” However, Idaho
courts have addressed this issue. In Allen v. State, 36 P.3d 1275 (Idaho 2001), a father and
son went to an Idaho state park to fish. While fishing, the child fell into the lake and
impaled his leg on a steel fence post under the water. Id. at 1276. It was undisputed that
the father and son paid a two dollar vehicle entrance fee to use the park. Id. Regardless,
the state trial court held that the state was immune from liability under the Idaho RUS.
The Idaho Supreme Court reversed, holding that the two dollar entrance fee constituted a
charge within the meaning of the Recreational Use Statute and that the State could not,
therefore, assert immunity under that statute.
In Corey v. State, 703 P.2d 685 (Idaho 1985), a snowmobiler sued the state for
damages arising from a snowmobile accident that occurred on State ground. In that case
the snowmobiler was injured when he struck a cable strung across a path in an Idaho state
park. The plaintiff argued that the State was negligent in placing the cable across the path.
The issue before the Idaho Supreme Court in that case was whether the State’s conduct
MEMORANDUM DECISION AND ORDER - 25

was “intentional or wilful,” providing an exception to immunity under the Idaho RUS.
Although the Idaho Supreme Court did not address the issue of whether the plaintiff was
charged to use the park, the issue was addressed by the trial court. At the trial court level,
the plaintiff in Corey made the same argument asserted in this case – that the snowmobile
registration fee constituted a charge under the RUS. The trial court disagreed, and in a
Memorandum Opinion,10 the court stated:
[I]t is contended that the statutorily required $5.00
snowmobile numbering fee constitutes such a charge since a
part of such money is required to be paid to the State
Treasurer.
This argument is tenuous at best. It ignores the fact that the
scheme for numbering snowmobiles has nothing at all to do
with the land upon which such snowmobile might be
operated. . . . There can be no doubt that the legislature
intended the term “charge” to mean a consideration given in
return for the express and direct privilege of being allowed to
utilize the property, in money or other thing of value.
(Corey v State, Case No. 57158 (First Dist., Kootnai County, Mem. Opinion, May 23,
1984) attached to the Declaration of Blake Hall, Exhibit I, Dkt. 86-10.)
The United States directs the Court to other federal and state cases interpreting
state recreational use statutes like the one at issue in this case in which the courts have
held a “charge” must be for entry onto the land. See U.S. v. Howard, 181 F.3d 1064, 1068
(9th Cir. 1999) (applying Hawaii statute); Jones v. U.S., 693 F.2d 1299, 1300 (9th Cir.

10

The trial court’s opinion in the Corey case was submitted by Fremont County
and attached to the Affidavit of Blake Hall as Exhibit I. (Dkt. 86-10.)
MEMORANDUM DECISION AND ORDER - 26

1982) (fee charged by government concessionaire for use of an inner tube not a fee for
use of recreational facilities under Washington State recreational use statute); Zuk v. U.S.,
698 F. Supp. 1577 (S.D. Fla. 1988); Miller v. Weitzen, 35 Cal. Rptr. 3d 73 (Cal. Ct. App.
2005). These cases provide persuasive authority that the snowmobile registration fee
should not be considered a “charge” within the meaning of the Idaho RUS.
Plaintiffs argue that, because the registration fees are directed in part to specific
counties and are used by both the United States and Fremont County in connection with
maintaining the snowmobile trail system, the fees should be considered a “charge” within
the meaning of the statute. This argument is belied by the Idaho Supreme Court’s
statement in Allen v. State, in which the court stated that “[w]e find no provision in the
recreational use act . . . that conditions the landowner’s protection from liability upon the
use to which the landowner puts the money received from a recreational user . . . . The
fact that a portion of the fee charged may have been intended by the State for the upkeep
of the Park, its roads, or the parking lot, is irrelevant.” 36 P.3d at 1277.
In sum, the Court concludes that Mr. Albertson was not charged a fee to use the
snowmobile trail system in the Caribou-Targhee National Forest. Because the United
States has established all of the conditions for immunity contained in the Idaho RUS, it is
immune from liability under the statute unless, as discussed below, it engaged in wilful
and wanton conduct.
(3)

Wilful and Wanton Conduct Exception to Immunity

The Idaho Supreme Court has held that a landowner whose liability has been
MEMORANDUM DECISION AND ORDER - 27

limited by the Idaho RUS is only liable “for wilful or wanton conduct that causes the
injury of a person using the owner’s land for recreational purposes.” Jacobsen v. City of
Rathdrum, 115 Idaho 266, 269 (1988). The Court has concluded that the United States is
an “owner” that allowed Mr. Albertson to enter its land for recreational purposes without
charge. Therefore, the United States is entitled to immunity under the Idaho Recreational
Use Statute unless it engaged in wilful or wanton conduct.
In Jacobsen, the Idaho Supreme Court defined wilful and wanton conduct using
the 1985 version of Idaho Jury Instruction 225, which provided:
Wilful and wanton misconduct is present if the defendant
intentionally does or fails to do an act, knowing or having a
reason to know facts which would lead a reasonable man to
realize that his conduct not only creates unreasonable risk of
harm to another, but involves a high degree of probability that
such hard would result.
766 P.2d at 740. The court in Jacobsen also cited the following language with approval:
“The most critical element of wantonness is knowledge, and that element need not be
shown by direct evidence; rather, it may be made to appear by showing circumstances
from which the fact of knowledge is a legitimate inference.” Id. at 742 (quoting Johnson
v. Sunshine Mining Co., Inc., 684 P.2d 268, 275 (Idaho 1984)).
The United States argues that there is no evidence that it had actual knowledge of
any problems with the signs on the Chick Creek Trail or that it wilfully ignored or
consciously failed to address them. In support of its argument, the United States indicates
that, prior to Mr. Albertson’s accident, there were no complaints about the trail signage

MEMORANDUM DECISION AND ORDER - 28

and that there had been no previous injuries or deaths related to inadequate signage.
Plaintiffs argue that the evidence in the record is sufficient for a jury to draw the inference
that the United States acted wilfully and wantonly, and is not entitled to immunity under
the Idaho Recreational Use Statute.
Plaintiffs argue that the pine tree obscuring the stop sign in front of Highway 20
was obvious, and that the deliberate failure to remove the obstruction created an
unreasonable risk of harm. Plaintiffs also submit the expert opinion of Kim Raap that the
Defendants knew or should have known of the inherent risks and dangers where trails and
highways intersect. According to Mr. Raap’s report, Defendants “had reason to know and
should have realized that failure to properly and diligently install, monitor and maintain
proper signage at the intersection (and on the approach to the intersection) of Chick Creek
Snowmobile Trail and U.S. Highway 20 on and prior to February 1, 2009 would create a
highly dangerous situation with a high probability of serious injury or death to those who
use the trails.” (Raap Report, Dkt. 98-25.) Moreover, the Sign Coordinator for the
Caribou-Targhee National Forest, Tom Brown, testified in a deposition that “a crossing of
this nature with a highway would be considered a major hazard for the trail user.” (Dkt.
98-43 at 12.)
Plaintiffs also direct the Court to a statement by the Idaho Supreme Court that the
question of whether conduct is wilful or wanton is “a question of fact for the jury to
determine from all the evidence.” See O’Guin v. Bingham County, 72 P.2d 849, 854
(Idaho 2003).
MEMORANDUM DECISION AND ORDER - 29

The United States argues that an examination of the record reveals that
approximately twice a week during the snowmobile season prior to the accident, the trial
groomers employed by Fremont County monitored and groomed Chick Creek Trail, and
no problems were reported. The United States also indicates that Chick Creek Trail had
been groomed and safely operated for years prior to the accident. Moreover, Fremont
County notes that, the day before the accident, on January 31, 2009, there was an event
called the Coed Rally snowmobile race which was sponsored by the Island Park Chamber
of Commerce with part of the race route on Chick Creek trial passing through Junction
57. Based on this fact, and others contained in the record, the United States argues that
there is simply no evidence that it, or Fremont County, was on notice that there was a
problem with the signs on Chick Creek Trail.
Based upon the materials in the record, the Court finds that there are disputed
material facts concerning whether the United States knew or should have known that the
intersection of Chick Creek Trail and Highway 20 was unreasonably dangerous and
involved a high degree of probability that injury would result. Plaintiffs have presented
circumstantial evidence that the Highway Crossing Ahead sign had been knocked down
and buried under the snow well before the day of Mr. Albertson’s accident. Plaintiffs
have presented evidence that the Stop sign at the intersection was obscured by vegetation
and that the obstruction was, or should have been, apparent to those responsible for
maintaining the trail. Plaintiffs have presented deposition testimony indicating that the
Forest Service knew that the type of intersection involved in this case created a dangerous
MEMORANDUM DECISION AND ORDER - 30

hazard and an expert report supporting the argument that the Forest Service’s actions, or
omissions, were wilful and wanton. These disputed facts preclude summary judgment in
favor of the United States on the issue of whether its actions were wilful and wanton.
In sum, the Court concludes that Fremont County is not entitled to immunity under
the Idaho RUS and its motion for summary judgment will be denied on that issue. The
Court further concludes that the United States has satisfied all the conditions of the Idaho
RUS, but material disputed facts exist concerning whether the United States engaged in
wilful and wanton conduct. Thus, the United States motion for summary judgment on this
issue likewise will be denied.
C.

Plaintiffs’ Negligence Claims

Plaintiffs’ Second Amended Complaint asserts causes of action for negligence and
negligence per se against the United States and Fremont County. (Dkt. 43.) Plaintiffs’
First Cause of Action alleges that Fremont County was negligent per se for failing to
comply with the Manual on Uniform Traffic Control Devices (“MUTCD”). Plaintiffs’
Second and Third Causes of Action allege negligence per se against Fremont County and
the United States for their alleged failure to comply with the provisions of two documents
promulgated by the Forest Service: (1) the Forest Service Manual 7100; and (2) the
Standards for Forest Service Signs and Posters, EM-7100-15. Plaintiffs’ Fourth and Fifth
Causes of Action allege general negligence against Fremont County and the United States
– alleging that Fremont County and the United States “assumed further duties regarding
the installation, operation, inspection, maintenance and replacement of signage on and
MEMORANDUM DECISION AND ORDER - 31

adjacent to the groomed snowmobile trail system in the national Forest,” and that both
Defendants failed to exercise reasonable care in implementing these assumed duties.
Fremont County and the United States both move for summary judgment on all of
Plaintiffs’ negligence claims. After reviewing the applicable legal authorities, and for the
reasons set forth below, the Court finds that neither Defendant may be held liable for
negligence per se for failing to comply with the MUTCD or the above-mentioned federal
guidelines. Concerning the United States, it has not waived sovereign immunity as to the
federal guidelines; its liability is defined by state law as dictated by the Federal Tort
Claims Act, 28 U.S.C. § 1346. In this case, the Idaho RUS (and the case law interpreting
that statute) establishes a duty applicable to the United States and provides that the United
States will be immune from liability unless it engaged in wilful and wanton conduct.
As to Fremont County, Plaintiffs have not demonstrated that the County’s alleged
violations of the MUTCD or the federal signage polices may act as the basis for a claim
of negligence per se. While the MUTCD and the federal guidelines may very well set the
standard of care applicable to Fremont County’s alleged assumed duties, they do not
create legal duties in themselves which would subject the County to a finding of
negligence per se. Thus, Defendants’ motions for summary judgment on Plaintiffs’
negligence claims will be granted as to Plaintiffs’ negligence per se claims and denied as
to Plaintiffs’ general negligence claims.
(1)

Elements of Negligence and Negligence Per Se

To establish a claim for negligence under Idaho law, the plaintiff must demonstrate
MEMORANDUM DECISION AND ORDER - 32

the following four elements: “(1) a duty, recognized by law, requiring the defendant to
conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal
connection between the defendant’s conduct and the resulting injury; and (4) actual loss
or damage.” Obendorf v. Terra Hug Spray Co., Inc., 188 P.3d 834, 840 (Idaho 2008)
(citing O’Guin v. Bingham County, 122 P.3d 308, 311 (Idaho 2005)). Here, the parties’
arguments focus on the first element, and, in particular, the source of Defendants’ alleged
duties.
“[I]n Idaho, it is well established that statutes and administrative regulations may
define the applicable standard of care owed, and that violations of such statutes and
regulations may constitute negligence per se.” Sanchez v. Galey, 733 P.2d 1234, 1242
(Idaho 1986). “The effect of establishing negligence per se through violation of a statute
is to conclusively establish the first two elements of a cause of action in negligence.”
Slade v. Smith’s Management Corp., 808 P.2d 401, 408 (Idaho 1991). “Negligence per se
lessens the plaintiff’s burden only on the issue of the actor’s departure from the standard
of conduct required of a reasonable man.” Ahles v. Tabor, 34 P.3d 1076, 1078 (Idaho
2001) (internal quotation omitted). “Thus, the elements of duty and breach are taken away
from the jury.” Ahles, 34 P.3d at 1078 (internal quotation omitted).
“In order to replace a common law duty of care with a duty of care from a statute
or regulation, the following elements must be met: (1) the statute or regulation must
clearly define the required standard of conduct; (2) the statute or regulation must have
been intended to prevent the type of harm the defendant’s act or omission caused; (3) the
MEMORANDUM DECISION AND ORDER - 33

plaintiff must be a member of the class of persons the statute or regulation was designed
to protect; and (4) the violation must have been the proximate cause of the injury.”
O’Guin, 122 P.3d at 311. Because negligence per se establishes both duty and breach for
the purposes of the negligence analysis, the party asserting the claim must demonstrate
that the statute itself creates a legal duty applicable to the defendant.
Duties also may be voluntarily assumed. Udy v. Custer County, 34 P.3d 1069,
1072 (Idaho 2001) (“it is possible to create a duty where one previously did not exist.”).
“If one voluntarily undertakes to perform an act, having no prior duty to do so, the duty
arises to perform the act in a non-negligent manner.” Featherston v. Allstate Ins. Co., 875
P.2d 937, 940 (Idaho 1994).
(2)

Negligence claims against the United States

Plaintiffs allege that the United States failed to follow the standards contained in
various manuals applicable to the Forest Service and that this failure constituted
negligence per se. Specifically, Plaintiffs direct the Court to the Sign and Poster
Guidelines for the Forest Service, EM-7100-15 (“Sign and Poster Guidelines”), and
Forest Service Manual 7100 (“FSM 7100”).
FSM 7100 implements a sign and poster program throughout the national forests
with the objective of providing information “for the safety, enjoyment and convenience of
National Forest . . . visitors, users, cooperators and employees.” (Dkt. 98-21 at 2.) Both
manuals address “Trail Signing.” For instance, Section 5.7 of the Sign and Poster
Guidelines provides that, “[w]hen trails cross each other or roads, there is a potential for
MEMORANDUM DECISION AND ORDER - 34

accidents,” and “[w]hen roads and trails cross, MUTCD and Forest Service standards
shall be followed.” (Dkt. 98-20 at 15.) The Court need not go into detail concerning the
various standards contained in these manuals, but, the Court notes that the guidelines
contain both mandatory and permissive language and dictate compliance with the
MUTCD.
The United States argues that it cannot be held liable for violations of federal
manuals, polices, or regulations, including the documents that Plaintiffs claim were not
followed in this case. Specifically, the United States argues that, under the Federal Tort
Claims Act (“FTCA”), the United States has not waived sovereign immunity for tort
claims based on alleged violations of federal statutes, regulations or policies. In essence,
the United States argues that the Court lacks subject matter jurisdiction to consider
Plaintiffs’ negligence per se claim.11
Under the FTCA, the United States waives sovereign immunity “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). According to the Ninth Circuit “[t]o bring suit under the FTCA based on

11

The United States did not raise this argument in its Answer as an affirmative
defense or in its motion for summary judgment. It was raised for the first time in the
United States’ reply memorandum in support of its motion for summary judgment.
Plaintiffs objected to the argument at the hearing on the motions and the Court ordered
supplemental briefing on the issue of whether the Court may consider the argument. The
issue has been fully briefed, the Court has determined that the United States has not
waived the argument, and the Court will consider the argument as part of the United
States’ motion for summary judgment.
MEMORANDUM DECISION AND ORDER - 35

negligence per se, a duty must be identified, and this duty cannot spring from federal
law.” Delta Savings Bank v. U.S., 265 F.3d 1017, 1026 (9th Cir. 2001). “The duty must
arise from state statutory or decisional law, and must impose on the defendants a duty to
refrain from committing the sort of wrong alleged.” Id. Moreover, the Ninth Circuit has
made clear that federal statutes and regulations “only become[] pertinent in an FTCA
action when a state law duty is found to exist.” Delta Savings Bank, 265 F.3d at 1026
(internal quotations omitted).
The Court finds the Ninth Circuit precedent cited above dispositive of this issue.
Plaintiffs have failed to direct the Court to any duty arising under Idaho law mandating
compliance with the federal guidelines at issue in this case and, as discussed above, the
federal guidelines themselves cannot act as the source of the duty. Plaintiffs’ negligence
per se claim against the United States based upon the federal guidelines must be
dismissed.
This conclusion, however, does not require the dismissal of Plaintiffs’ general
negligence claims against the United States. The Idaho RUS implicitly recognizes the
common law duties associated with premises liability and alters those duties by providing
immunity to owners who allow persons onto their property for recreational purposes
without charge. As discussed in more detail above, this statutory immunity bars liability
unless the owner engaged in wilful and wanton conduct. The question of whether the
United States engaged in wilful and wanton conduct is one of fact that remains disputed
in this case. The federal guidelines may be relevant to whether the United States engaged
MEMORANDUM DECISION AND ORDER - 36

in wilful and wanton conduct, but the guidelines themselves do not act as a source of any
duty giving rise to a claim for negligence per se.
(2)

Negligence claims against Fremont County

Plaintiffs claim that Fremont County’s alleged failure to comply with the standards
set forth in the MUTCD and the federal signage policies referenced above constituted
negligence per se. Plaintiffs also raise a claim against Fremont County for ordinary
negligence. Concerning Plaintiffs’ negligence per se claim against Fremont County, for
the reasons set forth below, the Court finds that, while the MUTCD and the federal
signage policies may inform the standard of care relevant to the duty Fremont County
owed to Mr. Albertson, the regulations do not in themselves create a duty that would give
rise to negligence per se in this case. Plaintiffs’ negligence per se claim against Fremont
County therefore must be dismissed. Concerning Plaintiffs’ ordinary negligence claim
against the County, the Court finds that disputed material facts exist as to whether the
County assumed a duty owed to Mr. Albertson and as to whether the County breached
this duty. The existence of disputed material facts on these issues precludes summary
judgment in the County’s favor.
(a)

negligence per se

Plaintiffs’ First Cause of Action claims that Fremont County is liable for
negligence per se for failing to comply with the requirements of the MUTCD. The
MUTCD is published by the Federal Highway Administration and defines the standards
used by road managers nationwide to install and maintain traffic control devices on public
MEMORANDUM DECISION AND ORDER - 37

streets and highways. 23 C.F.R. 655.603. Idaho law requires the Idaho Transportation
Board to adopt and apply the MUTCD to all highways within the state. Idaho Code § 49201. Idaho law also requires all local units of government to adopt and apply the MUTCD
to traffic control devices upon highways under their jurisdiction. Idaho Code § 49-209.
Similarly, the federal regulations make the MUTCD applicable to all federal lands,
including the national forests. 23 C.F.R. 655.603. And the application of the MUTCD to
roads and trails on land administered by the Forest Service is acknowledged in the Forest
Service’s Signage Policies. Moreover, the Idaho Supreme Court has held that a violation
of a mandatory provision of the MUTCD may act as the basis for a claim of negligence
per se. Curtis v. Canyon Hwy Dist. No. 4, 831 P.2d 541, 552 (Idaho 1992).
Fremont County does not contest any of the above propositions, but argues that the
claim should fail as a matter of law. The Court agrees.
To establish a claim for negligence under Idaho law (regardless of whether the
claim is for general negligence or negligence per se), the plaintiff must demonstrate that a
duty existed, recognized by law, which required the defendant to conform to a certain
standard of conduct. Obendorf, 188 P.3d at 840. In the context of a claim for negligence
per se involving the violation of a statute or ordinance, the duty must arise via legislative
mandate. In other words, the statute or ordinance must require the defendant to comply
with the requirements of the statute or ordinance. The American Law Institute (“ALI”)
has explained that the rationale for the common law theory of negligence per se is
institutional comity. Restatement (Third) of Torts § 14 cmt. c (Tentative Draft No. 1,
MEMORANDUM DECISION AND ORDER - 38

2001). Indeed, “when the legislature has addressed the issue of what conduct is
appropriate, the judgment of the legislature, as the authoritative representative of the
community, takes precedence over the views of any one jury [or court.]” Id.
The key in this case, and the reason Plaintiffs’ claim for negligence per se against
Fremont County must be dismissed, is that the Idaho legislature has not mandated
Fremont County’s compliance with the standards set forth in the MUTCD with regards to
the snowmobile trails in the Caribou-Targhee National Forest. As the ALI explains, “[a]
statute [or other legislative enactment] that sets forth a norm that is seemingly pertinent in
evaluating an actor’s conduct may turn out not to be legally binding on the actor.”
Restatement (Third) of Torts § 14 (Tentative Draft No. 1, 2001). Moreover, the ALI
points out that, when one of the issues in a case is whether a duty exists – rather than the
usual negligence per se case, where duty is established by the statute itself – “the court
should give appropriate weight to th[e] statutory violation as one relevant factor in
determining whether [the defendant’s] no-duty position remains proper[,]” but, although
the statute or ordinance is relevant to the duty analysis, “the violation does not signify
duty per se.” Id.
Here, Plaintiffs have not directed the Court to any laws making the application of
the MUTDC on the snowmobile trails within Fremont County mandatory. Plaintiffs direct
the Court to Idaho Code § 49-201, which requires the Idaho Transportation Board to
adopt and apply the MUTCD to all highways within the state, and Idaho Code § 49-209,
which requires all local units of government to adopt and apply the MUTCD to traffic
MEMORANDUM DECISION AND ORDER - 39

control devices upon highways under their jurisdiction. Under these provisions, the
MUTCD applies to “highways.” “Highway” is defined in the Idaho Code as “the entire
width between the boundary lines of every way publicly maintained when any part is
open to the use of the public for vehicular travel, with jurisdiction extending to the
adjacent property line, including sidewalks, shoulders, berms and rights-of-way not
intended for motorized traffic.” Idaho Code § 49-109. Here, Plaintiffs allege that Fremont
County breached a duty by failing to properly maintain the snowmobile trail leading up to
the highway. In other words, the duty alleged by Plaintiffs does not directly correspond
with the duty set forth in the Idaho Code. This is not to say that Fremont County did not
assume a duty to maintain the approach to the highway or that the MUTCD does not
inform the relevant standard of care in this case. It does mean, however, that Plaintiffs
may not raise a claim for negligence per se based upon the MUTCD.
Based upon similar reasoning, the Court holds that Fremont County is entitled to
summary judgment on Plaintiffs’ negligence per se claims based upon the alleged failure
to comply with the standards set forth in the federal signage policies. Nothing in the
federal signage policies mandated Fremont County’s compliance with the standards set
forth in those guidelines. In the absence of a mandate to comply with a statute or
regulation there can be no claim for negligence per se for its violation. Again, this does
not mean that the federal signage policies may not inform the standard of care of a duty
assumed by the County to maintain the snowmobile trails in a reasonably safe condition,
but it does preclude a claim under the theory of negligence per se.
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(b)

ordinary negligence

In addition to their claims for negligence per se, Plaintiffs’ complaint alleges that
Fremont County “assumed further duties regarding the installation, operation, inspection,
maintenance and replacement of signange on and adjacent to the groomed snowmobile
trail system in the National Forest . . . protecting the safety of all who use the snowmobile
trail system, including Jimmy Albertson.” (Pl.s’ Second Am. Compl. ¶ 60) (emphasis
added).
Fremont County moves for summary judgment on Plaintiffs’ ordinary negligence
claim on three grounds: (1) it is immune under the Idaho RUS; (2) it is not the party
responsible for maintaining the signs and approach to the intersection where Mr.
Albertson sustained his fatal injuries; and (3) Mr. Albertson’s death was not foreseeable.
Concerning the first argument, the Court concluded above that Fremont County is not
entitled to immunity under the Idaho RUS because it is not an “owner” of the property
where Mr. Albertson was injured within the meaning of the statute. As to the second and
third arguments, for the reasons below, the Court concludes that Fremont County has not
demonstrated that it is entitled to judgment as a matter of law on Plaintiffs’ negligence
claim.
Fremont County argues that, under the Idaho Code, the Idaho Department of
Transportation (and by extension the State) is the entity responsible for placement of

MEMORANDUM DECISION AND ORDER - 41

signs, maintenance of signs, and maintenance of approaches to state highways.12 In
support of this argument, Fremont County directs the Court to the Idaho Supreme Court’s
opinion in Roberts v. Transportation Department, 827 P.2d 1178 (Idaho 1991). In that
case, the plaintiff brought an action against the Idaho Department of Transportation,
seeking to recover for injuries she suffered and for the death of her husband in a collision
at an intersection between a state highway and a county road. The trial court granted the
department’s motion for summary judgment, finding that it did not owe the duties the
plaintiff alleged had been breached. On appeal, the department argued that it was relieved
of any duty owed to the plaintiff when the county had accepted exclusive responsibility
for placing the necessary signs and performing the necessary maintenance on the roads
within the county’s jurisdiction. The Idaho Supreme Court disagreed, holding that, under
the Idaho Code, the department had an express statutory duty with respect to erecting and
maintaining signs at its highways’ intersections. The court stated that, where the state
“legislature enacts a statute requiring that an administrative agency carry out specific
functions, i.e., furnish, erect and maintain signs on side highways, that agency cannot
validly subvert the legislation by promulgating contradictory rules.” 827 P.2d at 1183.
Fremont County argues that the holding in Roberts “has definitively established
that the State is responsible for placement and maintenance of signs along State

12

See Idaho Code §§ 40-310 and 40-201 (charging the State with the specific
duties concerning the improvement and maintenance of state highways and highway
signs).
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Highways, and for maintenance of approaches to State Highways, even if the signs or
approaches are not located within the State highway right-of-way.” (Dkt. 80-2 at 14.) The
Court disagrees with Fremont County’s characterization of the holding in Roberts. In
Roberts, the Idaho Supreme Court held that the State cannot escape liability by passing
statutorily required duties on to another entity. Roberts does not stand for the proposition
that a county may not assume duties shared by the State. Whether Fremont County did
assume the alleged duties in this case is disputed.
Fremont County cites a Memorandum of Understanding from 1985 between the
Forest Service and the State of Idaho, which, among other things, provides that “the
STATE will install and maintain all traffic control (regulating and warning), guide,
information, route designation, and other traffic signing within right-of-way, including
necessary signs at intersections of FOREST SERVICE and other public road
intersections.” (Dkt. 98-22).
In response, Plaintiffs argue that, regardless of the State’s responsibilities, Fremont
County had assumed the duty to maintain and operate the snowmobile trail system within
its jurisdiction in a reasonably safe condition pursuant to various agreements made with
the Forest Service, including the Cost-Share Agreement and the Annual Operating Plan.
Both of the above documents assign certain responsibilities to Fremont County
concerning the operation and maintenance of the snowmobile trail system, including the
responsibilities to “[a]ssist the Forest Service with trail maintenance, as necessary, to
keep the snowmobile trails open and safe[,]” and to “mark trails, install sign[s] on trails
MEMORANDUM DECISION AND ORDER - 43

and trailheads as necessary and as designated in the attached Sign Plan.” (Dkt. 98-13.)
Plaintiffs have also submitted the deposition testimony from a Forest Service
employee stating that the “primary responsibility of signing the trails is Fremont
County’s.” (Davis Dep. 37:11, Dkt. 98-38 at 6.) Plaintiffs also cite discovery responses
from the Idaho Department of Transportation produced in connection with the state court
companion case and in which the State represents the following:
(1) ITD did not install the stop sign that was in place on the east side of U.S.
Highway 20;
(2) The stop sign was 24 inches in width and height, on an untreated port; and
installed at a height inconsistent with ITD sign standards and practices;
(3) The stop sign had a sticker in the left front surface, consistent with stop signs
used by the Forest Service and Fremont County;
(4) “The tree maintenance/trimming/removal was undertaken by employees of
Fremont County on the afternoon following the accident;”
(5) ITD had no involvement in the signage of the snowmobile trails and no
agreement concerning signage involving the Fremont County Snowmobile Program.
(Idaho Transportation Department’s Answers to Plaintiff’s First Set of Discovery
Requests, Dkt. 98-28.)
Based on the above, the Court finds that disputed material facts exist concerning
the issue of whether Fremont County assumed the responsibility to maintain the section of
the trail and signs leading up to Highway 20. The material disputed facts preclude
MEMORANDUM DECISION AND ORDER - 44

summary judgment on this issue.
Finally, concerning Fremont County’s argument that Mr. Albertson’s death was
not foreseeable, Plaintiffs have presented testimony from Tom Brown, the Sign
Coordinator for the Caribou-Targhee National Forest, stating that “a crossing of this
nature with a highway would be considered a major hazard for the trail user.” (Dkt. 98-43
at 12.) Plaintiffs have also presented deposition testimony from employees of the County
and the Forest Service acknowledging that trail signs become damaged for various
reasons and frequently need to be replaced. (Brown Dep. 127:20-128:10; Cikaitoga Dep.
207:20-209:19.) These facts preclude summary judgment on this issue.
ORDER
Based on the foregoing, the Court being otherwise fully advised in the premises,
IT IS HEREBY ORDERED that:
1.

Fremont County’s Motion for Summary Judgment (Dkt. 80) is GRANTED

IN PART AND DENIED IN PART. Fremont County’s motion is granted with respect to
Plaintiffs’ claim for negligence per se and denied as to Plaintiffs’ claim for ordinary
negligence.
2.

The United States of America’s Motion for Summary Judgment (Dkt. 88) is

GRANTED IN PART AND DENIED IN PART. The United States’ motion is granted as
to Plaintiffs’ claim for negligence per se and denied as to Plaintiffs’ claim for ordinary
negligence. The United States has satisfied all of the conditions for immunity under the
Idaho Recreational Use Statute, Idaho Code § 36-1604. However, such immunity is
MEMORANDUM DECISION AND ORDER - 45

subject to an exception, and the Court has determined that disputed material facts exist as
to the question of whether the United States engaged in wilful and wanton conduct, which
would preclude immunity under the Idaho Code, and Plaintiffs may present evidence
concerning that issue at trial.
3.

Fremont County’s Motion to Strike, (Dkt. 102), is DENIED.

4.

The United States’ Motion & Memorandum to Strike Portions of William

L. Mauk’s Declaration (Dkt. 106) is DENIED.
DATED: December 2, 2011

Honorable Candy W. Dale
Chief United States Magistrate Judge

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