Kim v. United States, No. 17-17432 (9th Cir. 2019)Annotate this Case
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.