Johnson v. U.S., Dept. of Interior

• Decision Date: 13 November 1991
• Docket Number: No. 90-8060,90-8060
• Citation: 949 F.2d 332
• Parties: Hugh B. JOHNSON, Jr., as Personal Representative of the Estate of Ben Johnson, Deceased, for and on Behalf of Hugh B. Johnson, Jr. and Laura C. Johnson, Beneficiaries, Plaintiff-Appellant, v. UNITED STATES of America, DEPARTMENT OF INTERIOR, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 332

949 F.2d 332

60 USLW 2356

Hugh B. JOHNSON, Jr., as Personal Representative of the

Estate of Ben Johnson, Deceased, for and on Behalf

of Hugh B. Johnson, Jr. and Laura C.

Johnson, Beneficiaries, Plaintiff-Appellant, v. UNITED STATES of America, DEPARTMENT OF INTERIOR, Defendant-Appellee.

No. 90-8060.

United States Court of Appeals, Tenth Circuit.

Nov. 13, 1991.

Rehearing Denied Jan. 1, 1992.

Stanley P. DeGory of Bonya and Douglass, Ind., Pa., for plaintiff-appellant.

Carol A. Statkus (Richard A. Stacy, U.S. Atty., with her on the brief), Asst. U.S. Atty., Cheyenne, Wyo., for defendant-appellee.

Before McKAY, Chief Judge, and BARRETT and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Plaintiff, Hugh B. Johnson, Jr., on behalf of Hugh B. Johnson, Jr. and Laura C. Johnson, appeals from the district court's final order granting summary judgment in favor of Defendant, the United States of America. Plaintiff brought this action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-80, for the wrongful death of decedent, Ben Johnson. Plaintiff sought to recover damages from the United States alleging the National Park Service was negligent in undertaking the rescue of decedent.

The district court concluded Plaintiff's claim could not stand because he failed to establish a legal duty imposed upon the National Park Service. In addition, the district court found Plaintiff failed to present evidence of a breach of duty or proximate cause sufficient to put those elements of negligence at issue.

We affirm the summary judgment in favor of the United States on different grounds from those of the district court. Reviewing the record de novo, we conclude the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a), applies to the undisputed facts of this case. Plaintiff's complaint must therefore be dismissed for lack of subject matter jurisdiction. See Zumwalt v. United States, 928 F.2d 951, 952 (10th Cir.1991).

I.

The material facts of this case are undisputed. On June 28, 1987, decedent, Ben Johnson, and three companions, Robin Macal, Daniel Feikin and David Wechner, hiked to the summit of Buck Mountain in Grand Teton National Park. ¹ Macal and Wechner had acquired the necessary climbing permit from the Jenny Lake Ranger Station the previous afternoon. The four climbers had varying degrees of experience. Wechner was the designated leader of the party. Johnson was the least experienced, with no technical climbing experience whatsoever. Johnson and his companions began their ascent at approximately 8:00 a.m. via Buck Mountain's east ridge, a nontechnical route. The four climbers reached the summit at different times between 9:00 and 10:30 a.m.

After gathering at the summit, the group descended in pairs, at different times, via the east face, a nontechnical route regarded as relatively easy. The two most experienced climbers, Macal and Wechner, descended first. They reached Timberline Lake at approximately 12:00 noon, the entire descent taking approximately fifteen minutes. Although Johnson and Feikin began their descent along the east face shortly thereafter, they soon strayed south, entering more difficult and technical terrain. Unable to find their way back to the easier route, Johnson and Feikin attempted to descend the southern route. At some point, however, Feikin resolved he could go no further and remained on a ledge where he was in visual contact with Macal and Wechner waiting at Timberline Lake. Johnson, on the other hand, decided to continue his descent. After leaving the summit, Johnson was in occasional voice contact, but never in visual contact with Macal and Wechner.

At approximately 2:30 p.m. Macal and Wechner decided to summon help from the Park Rangers. Macal ran from Timberline Lake to the trailhead where he retrieved his vehicle and drove to the Moose Visitor's Center. Arriving at the visitor's center at approximately 4:30 p.m., he approached Ranger James Springer and informed him that Johnson and Feikin were off course and stuck, but that he believed there was a ranger in the area. At this point Macal was unaware, and therefore unable to report, that at approximately 3:15 p.m. Johnson had fallen on a hard snowslope, crashed into rocks and sustained a serious head injury and lacerations. Upon receiving Macal's information, Springer made radio contact with Ranger Randy Harrington, who had been in the vicinity of Buck Mountain, to determine whether he knew of any climbers in distress. Ranger Harrington reported that he had encountered four climbers descending Buck Mountain and that they were walking through Death Canyon. After talking with Harrington, Ranger Springer told Macal he should return to Whitegrass Trailhead to wait for his companions.

Macal returned to the trailhead and remained in the area until approximately 8:45 p.m. when Wechner arrived from Timberline Lake. After Wechner reported he had not seen Johnson and that Feikin was still stranded on the ledge, Macal realized the communication between Rangers Springer and Harrington had been erroneous. ² Wechner and Macal then drove to the Moose Visitor's Center where they told Ranger Northrup about the previous miscommunication. They informed him Feikin had been on the same ledge for over four hours and Johnson had not been seen since earlier in the day. Both Wechner and Macal were still unaware that Johnson was injured. Northrup contacted Ranger Peter Armington, the Jenny Lake District search and rescue (SAR) coordinator.

Ranger Armington consulted with his SAR team ³ concerning a possible rescue effort. At approximately 9:30 p.m., Armington decided to send climbing rangers Harrington and Larsen to Buck Mountain to retrieve Feikin from the ledge and to look for Johnson. The rangers reached Feikin in the early morning hours, but were unable to locate Johnson. A helicopter search was initiated at first light, 6:15 a.m. Johnson's body was located approximately twenty minutes later in a melt pool near Timberline Lake. Johnson had died from hypothermia at approximately 10:30 p.m. the previous night.

Plaintiff alleges that Ben Johnson would not have died but for the Park Service's negligent failure to: (1) adequately regulate recreational climbing activity in Grand Teton National Park; (2) initiate a rescue effort after Macal's initial report; and (3) conduct a reasonable rescue effort after Macal's second report. In response to these allegations, Defendant filed a motion to dismiss, or, in the alternative, for summary judgment, asserting as a matter of law: (1) Plaintiff's action is jurisdictionally barred by the discretionary function exception to the FTCA, 28 U.S.C. 2680(a); and (2) the United States had no legal duty to rescue Ben Johnson. We review these issues de novo. Oberndorf v. City and County of Denver, 900 F.2d 1434, 1437 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). Because we conclude the discretionary function exception deprived the district court of jurisdiction, we do not address the propriety of the district court's summary judgment rulings regarding legal duty, breach of duty or proximate cause.

II.

The FTCA authorizes civil suits against the United States

for money damages ... for injury or loss of property, or personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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). This broad waiver of sovereign immunity is limited, however, by the discretionary function exception, which prohibits any claim against the United States "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." Id. § 2680(a) (emphasis added). The discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Application of this exception is therefore a threshold issue--a jurisdictional issue which precedes any negligence analysis. See Miller v. United States, 710 F.2d 656, 662 (10th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 316 (1983).

This circuit applies the principles set forth in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), to guide its application of the discretionary function exception. Zumwalt, 928 F.2d at 953; Boyd v. United States ex rel. U.S. Army, Corps of Eng'rs, 881 F.2d 895, 897 (10th Cir.1989). We first consider whether the challenged action "is a matter of choice for the acting employee." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. If a statute, regulation, or policy prescribes a specific course of conduct, then an employee must "adhere to the directive" and no discretion is involved. Id. If, however, the challenged action is discretionary, we must then determine whether it is of the kind Congress intended to shield through the exception. Id. The Court concluded that Congress intended to shield only those "governmental ... decisions based on considerations of public policy"--decisions " 'grounded in social, economic and political policy.' " Id. at 537, 108 S.Ct. at 1959 (quoting Varig, 467 U.S. at 814, 104 S.Ct. at 2765). Accordingly, the discretionary function exception will not bar a negligence claim if the government's "policy leaves no room for an official to exercise policy judgment...