Shansky v. U.S., 98-1658

• Citation: 164 F.3d 688
• Decision Date: 10 December 1998
• Docket Number: No. 98-1658,98-1658
• Parties: Nettie SHANSKY, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 688

164 F.3d 688

Nettie SHANSKY, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.

No. 98-1658.

United States Court of Appeals First Circuit.

Heard Dec. 10, 1998.

Decided Jan. 8, 1999.

Frank Verderame, with whom Laurence G. Tinsley, Jr. and Plattner Verderame, P.C. were on brief, for appellant.

Mary Elizabeth Carmody, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, GIBSON, ^* Senior Circuit Judge, and LIPEZ, Circuit Judge.

SELYA, Circuit Judge.

This appeal requires us to revisit the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, and, in particular, its discretionary function exception, 28 U.S.C. § 2680(a). We conclude that the district court applied the exception impeccably and appropriately granted summary judgment on that basis.

The facts, insofar as they pertain to the issues on appeal, are uncomplicated. Upon departing the Hubbell Trading Post, a national historic site in Ganado, Arizona, through the so-called "Northern Exit," plaintiff-appellant Nettie Shansky tripped over an antique wooden threshold and tumbled down a short flight of steps. She sustained serious personal injuries in the fall.

The Trading Post was originally built in the late 1800s. The National Park Service acquired it in 1967 and rehabilitated it three years later with a view toward preserving its authenticity. ¹ Shansky maintains that, when the Park Service refurbished the Trading Post, it should have installed a handrail at the Northern Exit. She brought an FTCA suit against the United States on this theory, and, although she did not amend her complaint, she later expanded her thesis to include an allegation that the Park Service also failed to post adequate warning signs at or near the Northern Exit. ²

The FTCA is a limited waiver of the federal government's sovereign immunity. Congress has prescribed a number of situations in which the waiver will not attach. See 28 U.S.C. § 2680. One relates to claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Invoking this discretionary function exception, the government sought brevis disposition. The district court obliged. Shansky then prosecuted this appeal. We review de novo the lower court's determination that the discretionary function exception controls. See Irving v. United States, 162 F.3d 154, 161 (1st Cir.1998) (en banc).

A familiar analytic framework governs the discretionary function inquiry. An inquiring court first must identify the conduct that allegedly caused the harm. See id. at 161-62. Here, Shansky spotlights the Park Service's decisionmaking during the Trading Post's rehabilitation in 1970 as the culpable conduct, claiming that the Park Service abjured obvious safety measures. The issue, then, is whether this conduct is of the nature and quality that Congress, in crafting the discretionary function exception, sought to shelter from tort liability. That issue encompasses two questions: Is the conduct itself discretionary? If so, is the discretion susceptible to policy-related judgments? See United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); Irving, 162 F.3d at 161-62.

Is the Conduct Discretionary?

Shansky endeavors to end the inquiry at the initial stage by showing that the Park Service had no discretion because existing policy mandated that it install handrails and warning signs when it refurbished the premises. She finds succor in a broadly worded expression of a general policy goal contained in the Park Service's operating manual to the effect that "[t]he saving of human life will take precedence over all other management actions." National Park Service, NPS-28: Cultural Resource Management Guidelines (Guidelines) 46 (July, 1994). ³ But this passage does not specifically prescribe that any particular safety measure be employed at any particular place or in any particular facility. To the contrary, it suggests that the Park Service and its functionaries will have to make discretionary judgments about how to apply concretely the aspirational goal embedded in the statement. Accord Tippett v. United States, 108 F.3d 1194, 1197 (10th Cir.1997). Statements made at this level of generality do not satisfy Gaubert 's and Berkovitz 's specific prescription requirement. Were the law otherwise, the discretionary function exception would be a dead letter.

The surrounding context in which the cited statement appears buttresses this conclusion. Shansky plucks the statement from the Guidelines' description of park stewardship--but the paragraph in which the words appear goes on to note that, even though the saving of human life is a priority, Park Service policy "recognize[s] that public use of park resources sometimes involves elements of risk" and also "recognize[s] the need for management actions to limit risk to acceptable levels, consistent with acceptable levels of impact on cultural resources." Guidelines at 46. Consequently, the Guidelines, read as a whole, reinforce the view that Park Service management has discretion to determine which risks are "acceptable," and thus to balance, at some level, concerns for human safety against concerns for preserving the original qualities of a cultural resource.

Shansky next argues, in a related vein, that the Park Service, at the expense of historic authenticity, took other steps to make the Trading Post safe (for example, it replaced uneven floorboards during the reconstruction); and that, having opted for safety in these respects, the Park Service was somehow obliged to do more with the Northern Exit. This argument lacks force. Shansky's reference to other safety devices proves nothing, because the Guidelines, which did not specifically require the Park Service to install handrails or warning signs at the Northern Exit (or at any other comparable place, for that matter), gave the Park Service discretion to make precisely the kind of judgments that Shansky now assails (balancing competing considerations and opting for safety over authenticity in some applications, but not in others).

The only other evidence of a mandatory policy that Shansky proffers is a Park Service official's response to a question posed at his deposition. The questioner asked the deponent whether he "would agree that the National Park Service policies and regulations required [the Park Service] to identify dangers to the public," and the deponent responded affirmatively. From this slender reed, Shansky tries to build an argument that the Park Service adopted a binding policy to install handrails and warning signs at the Northern Exit. Setting to one side the rampant ambiguities inherent in the question and answer, the argument fails because Shansky has shown merely a Park Service official's unsubstantiated recollection of an unidentified policy statement. Although a government official's testimony about the substance of a putative policy sometimes may assist a court's understanding of agency practice, see, e.g., Kelly v. United States, 924 F.2d 355, 360-61 (1st Cir.1991) (explaining that an agency official's testimony may be used to aid a court in deciphering ambiguous regulations and guidelines), testimony that purports to describe written policies and regulations is no substitute for the original text. See Valdez v. United States, 56 F.3d 1177, 1179-80 (9th Cir.1995); cf. Irving, 162 F.3d at 166 (explaining that if a witness' statements are offered to show an agency's policy, the witness must, at a minimum, reconcile his understanding with the agency's more formal expressions of policy).

For these reasons, we find that the challenged conduct is discretionary.

Is the Discretion Policy-Driven?

We turn next to the second half of the Gaubert test. On this score, Shansky asseverates that the Park Service's actions, even if discretionary, were not policy-driven. Because the law presumes that the exercise of official discretion implicates policy judgments, Shansky cannot prevail on this argument unless she demonstrates that the decision to forgo handrails and warning signs was not susceptible to policy analysis. See Gaubert, 499 U.S. at 325, 111 S.Ct. 1267; Irving, 162 F.3d at 167.

Shansky's effort to make the requisite showing emphasizes the actual decisionmaking that went into the 1970 retrofitting of the Trading Post. She insists that nobody in the Park Service perceived that the Northern Exit posed a danger and, thus, no one thought about installing handrails or warning signs. Shansky renewed this emphasis at oral argument, repeatedly asserting that the discretionary function defense should topple solely because Park Service officials "failed to consider" the safety issues of which she complains.

Although Shansky marshals some evidence to support her claim--the Park Service apparently did not explicitly consider the safety vel non of the Northern Exit in 1970--her fact-based exegesis is beside the point. The subjective intent of government officials is irrelevant to the discretionary function analysis. See Gaubert, 499 U.S. at 325, 111 S.Ct. 1267; Irving, 162 F.3d at 166. It is therefore of no practical consequence that Park Service officials failed to mull particular safety issues when they planned the Trading Post's rehabilitation. See Gotha v. United States, 115 F.3d 176, 180 (3d Cir.1997) ("The test is not whether the government actually considered each possible alternative in the universe of options, but whether the conduct was of the type associated with the exercise of official discretion.") (citations and internal quotation marks omitted); Kiehn v. United States, 984 F.2d...