Clark v. United States

• Decision Date: 25 September 2014
• Docket Number: 12–1176 MV/KBM.,Civ. Nos. 12–1160 MV/KBM
• Citation: 234 F.Supp.3d 1127
• Parties: Peter CLARK, Plaintiff, v. The UNITED STATES of America, Defendant. Consolidated for Briefing Purposes With Aileen O'Catherine, and Steven Silver, individually and as Parents and next friends of Noah Silver, a minor, Plaintiffs, v. The United States of America, Defendant.
• Court: U.S. District Court — District of New Mexico

234 F.Supp.3d 1127

Peter CLARK, Plaintiff,

v.The UNITED STATES of America, Defendant.

Consolidated for Briefing Purposes With

Aileen O'Catherine, and Steven Silver, individually and as Parents and next friends of Noah Silver, a minor, Plaintiffs,

v.The United States of America, Defendant.

Civ. Nos. 12–1160 MV/KBM

12–1176 MV/KBM.

United States District Court, D. New Mexico.

Signed Sept. 25, 2014.

Susan H. Widner, Richard J. Valle, Carter & Valle Law Firm, Albuquerque, NM, for Plaintiffs.

Ruth Fuess Keegan, U.S. Attorney's Office, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

MARTHA VAZQUEZ, District Judge.

THIS MATTER comes before the Court on Defendant's Motion and Memorandum to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6) or, in the Alternative, Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56 ("First Motion") [Doc. 26 in Civ. No. 12–1160; Doc. 23 in Civ. No. 12–1176], and the United States' Motion and Memorandum to Dismiss Plaintiffs' Complaints for Lack of Subject Matter Jurisdiction ("Second Motion") [Doc. 27 in Civ. No. 12–1160; Doc. 24 in Civ. No. 12–1176]. The Court, having considered the motions, briefs, relevant law and being otherwise fully informed, finds that Defendant's First Motion is not well-taken and will be denied, and Defendant's Second Motion is well-taken and will be granted.

BACKGROUND

The incidents that give rise to these two actions occurred at the Capulin Snow Play Area, located in the Sandia Mountains range and within the management area of the Cibola National Forest. Doc. 27–1 ¶ 3.¹ The Capulin Snow Play Area was constructed in direct response to numerous snow play and traffic injuries that had occurred along the highways, where members of the public found unofficial and unsafe sites to engage in snow play activities. Id. ¶¶ 4–10. The purpose of the area was to provide a safer alternative for snow play and to "reduce extensive use of roadsides for snowplay activities," which "is extremely dangerous and many serious accidents [had] occurred in the past." Doc. 27–3. The slope of the Capulin Snow Play Area followed the natural slope of the hill. Doc. 27–1 ¶ 21. The Forest Service decided to operate Capulin without supervision, due to limited funding, and it continued to be operated without supervision at all relevant times. Id. ¶ 22. Improvements made to the area in 1989 and the early 1990's did not alter the snow play slopes. Id. ¶ 32. Neither the slope of the snow play area nor the run out had been altered at the time of the events in question. Id. ¶ 34.

At all material times, the Forest Service posted at the entrance/pay station and made flyers available to the public notifying visitors that the area was operated with minimal supervision—to "participate at your own discretion and risk." Id. ¶ 37. Additionally, signs and flyers advised the public of safety rules, specifically directing the public to be aware of the elements of risk in snow play activities, observe signs and warnings, look around before starting down the hill, and maintain control in order to avoid people and objects. Id. ¶ 38. Signs also informed the public that it was the individual sledder's responsibility to avoid collisions. Id. ¶ 39.

The Forest Service visited the Capulin Snow Play Area on a daily basis when the facility was scheduled to be open to assess the amenities and observe the conditions of the slope. Id. ¶ 43. During the daily visit, the Forest Service cleared trash, removed or mitigated large human-made jumps and natural moguls, checked general snow conditions, and determined whether to open the area to the public for that day. Id. ¶ 44.

In October 2007, an Environmental Assessment was undertaken at Capulin. Doc. 38–17. The Assessment states that the sliding areas at Capulin were "too steep allowing to[o] much speed and create[d] ... unsafe ... and hazardous conditions for the public." Doc. 38–17. Although the Forest Service began planning to renovate Capulin as early as 2005, due to competing demands on Forest Service resources, renovation did not begin until May 2010. Doc. 27–1 ¶¶ 53, 56.

On January 31, 2010, Plaintiff Peter Clark sustained serious injuries to his back and ankle while sledding with his son at the Capulin Snow Play Area. Additionally, on December 27, 2009, Noah Silver, the 12 year-old child of Plaintiffs Aileen O'Catherine and Steven Silver, sustained spinal cord injuries

resulting in partial paralysis, a need for multiple surgeries, and other serious life changing injuries while sledding at the Capulin Snow Play Area. As a result of his injuries, Plaintiff Clark filed, under the Federal Tort Claims Act ("FTCA"), a Complaint for Personal Injury on November 12, 2012, alleging a negligence claim against the United States. Similarly, as a result of Noah's injuries, Plaintiffs O'Catherine and Silver filed, under the FTCA, a Complaint for Personal Injury and Loss of Consortium on November 15, 2012, alleging both a negligence claim and a claim for loss of consortium against the United States.

In their Complaints, Plaintiffs allege that the Forest Service breached its duty to exercise ordinary care such that the Capulin Snow Play Area was reasonably safe for public use and its duty to warn the public of hidden dangers. In support of those allegations, Plaintiffs specifically allege that the Capulin Snow Play Area was operated without supervision; the man-made pitch to the sled area allowed sleds to travel at an unsafe speed and contained insufficient "run out" to allow sleds to safely slow down and stop; and Forest Service employees knew that the public was violating the rules for use and occupancy of the area.

On July 31, 2013, the government filed its First Motion and its Second Motion, each of which Plaintiffs oppose. In the First Motion, the government argues that dismissal is warranted because: (1) Plaintiffs allege only violations of federal law, rather than state tort law, and such violations are not cognizable under the FTCA; and (2) to the extent Plaintiffs allege state tort law claims, those claims are foreclosed by the New Mexico Ski Safety Act. In the Second Motion, the government argues that Plaintiffs' claims fall within the "discretionary function" exception to the FTCA. Plaintiffs oppose both motions.

LEGAL STANDARD

I. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

"Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress." Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994) (citations omitted). Plaintiff bears the burden of establishing this Court's jurisdiction over its claims. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Before considering the merits of a case, the Court is responsible for ensuring that it has subject matter jurisdiction. Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir.1992).

Under Rule 12(b)(1), a party may assert by motion the defense of the Court's "lack of subject-matter jurisdiction." Fed.R.Civ.P. 12(b)(1). Motions to dismiss for lack of subject matter jurisdiction "take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which the subject matter jurisdiction is based." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002). On a facial attack, the Court considers the complaint's allegations to be true. Id. On the other hand, when the motion challenges the factual basis for an action, the Court "may not presume the truthfulness of the complaint's factual allegations." Campos v. Las Cruces Nursing Ctr., 828 F.Supp.2d 1256, 1265 (D.N.M. 2011) (citation omitted). Rather, the "court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. Reference to evidence outside the pleadings does not convert the motion to a summary judgment motion. Id.

II. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

Under Rule 12(b)(6), a Court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). When considering a 12(b)(6) motion, the Court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. Smith v. United States, 561 F.3d 1090, 1097 (10th Cir.2009), cert. denied, 558 U.S. 1148, 130 S.Ct. 1142, 175 L.Ed.2d 973 (2010).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A complaint "that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Accordingly, while the Court must take all of the factual allegations in the complaint as true, "a plaintiff armed with nothing more than conclusions" cannot survive a motion to dismiss. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

III. Rule 56 Motion for Summary Judgment

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a...