Kim v. United States, No. 17-17432 (9th Cir. 2019)
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Plaintiffs filed suit under the Federal Tort Claims Act (FTCA) after two boys were killed when a tree limb fell onto their tent in Yosemite National Park. The Ninth Circuit affirmed the dismissal of the fraudulent concealment claim, and reversed the dismissal of the negligence-based claims.
The panel held that, regardless of whether the FTCA's discretionary function exception might apply to some hypothetical decision not to inspect the campground, the panel must decide whether park officials are shielded from liability for their conduct in actually inspecting that area once they undertook to do so; once they undertook to inspect trees in the campground, park officials were required to do so in accordance with their established policies; and while it was unclear whether the families will succeed in showing that officials were actually negligent in evaluating the tree under the park's Seven-Point system, such evaluation was not exempt from the scope of the FTCA.
The panel also held that the discretionary function exception did not bar plaintiffs' claim that the government negligently failed to give park visitors any warning about the tree. In regard to the fraudulent concealment claim, the panel held that the district court did not err in dismissing the claim under the FTCA's misrepresentation exception.
Court Description: Federal Tort Claims Act. The panel affirmed the district court’s dismissal of the plaintiffs’ claim for fraudulent concealment, and reversed the dismissal of the negligence-based claims, in a Federal Tort Claims Act (“FTCA”) suit against federal officials for their failure to prevent the deaths of two boys who were killed when a tree limb fell onto their tent in Yosemite National Park. The FTCA’s discretionary function exception bars claims based upon the federal officials’ “exercise or performance or the failure to exercise or perform a discretionary function or duty.” 28 U.S.C. § 2680(a). The plaintiff families first argued that the district court erred in finding their negligence-based causes of action to be barred by the discretionary function exception to the FTCA. The panel held that regardless of whether the discretionary function exception might apply to some hypothetical decision not to inspect the campground, the panel had to decide whether Park officials were shielded from liability for their conduct in actually inspecting that area once they undertook to do so. The panel further held that once Park officials undertook to evaluate the danger of the trees in the campground, they were required to do so according to the technical criteria set forth in the Park’s official policies. Yosemite Park Directive No. 25 set forth the Park’s “Hazard KIM V. UNITED STATES 3 Tree Management” program that specified how park officials were to evaluate the risk imposed by trees they inspected. An appendix to the directive detailed a Seven- Point system for rating tree dangers. The panel held that the officials in evaluating the tree under their Seven-Point system were not exempt from the scope of the FTCA. The government contended that the even if it knew or should have known about the danger posed by the tree, the plaintiffs’ negligence-based claims were still barred because Park officials had significant discretion regarding what to do in response to that danger. The panel held that as with the Park’s duty to take some action to abate a high-risk tree, fulfilling the Park’s duty to inform visitors somehow about that risk did not involve considerations of public policy. Accordingly, the discretionary function exception to the FTCA did not bar the plaintiffs’ claim that the government negligently failed to give Park visitors any warning about the tree. Plaintiffs argued that the district court erred in dismissing their claim that Park officials fraudulently concealed information about the dangers posed by the tree in “order to continue charging camping fees” to visitors. The district court found that this fraudulent concealment claim was barred by the FTCA’s exception for claims “arising out of . . . misrepresentation [or] deceit.” 28 U.S.C. § 2680(h). The panel held that the fraudulent concealment claim here was not one that involved misrepresentations only collaterally. The panel concluded that the district court did not err in dismissing the claim under the FTCA’s misrepresentation exception. Judge Rawlinson concurred in part and dissented in part. Judge Rawlinson agreed with the majority that the district 4 KIM V. UNITED STATES court properly dismissed the fraudulent concealment claim, but disagreed with the majority’s conclusion that the district court erred in dismissing the negligence-based claims under the discretionary function exception to the FTCA. Judge Rawlinson wrote that the majority erred in concluding that the Hazard Tree Management program created a mandatory duty on the part of officials responsible for managing Yosemite National Park.
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