Diegelman v. United States

• Decision Date: 04 December 2012
• Docket Number: Case No. 2:10-CV-1152 TS
• Parties: CRISTINA ARDENE DIEGELMAN and DAVE DIEGELMAN, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Utah

CRISTINA ARDENE DIEGELMAN and DAVE DIEGELMAN, Plaintiffs,

v.UNITED STATES OF AMERICA, Defendant.

Case No. 2:10-CV-1152 TS

UNITED STATES COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

DATED December 4, 2012

MEMORANDUM DECISION AND

ORDER GRANTING AMENDED

MOTION TO DISMISS

This matter is before the Court on Defendant United States of America's Amended Motion to Dismiss. For the reasons discussed below, the Court will grant the Motion.

I. BACKGROUND

This action arises from a fall off of a bicycle ridden by Plaintiff Cristina Diegelman, as she was returning on the paved Pa'rus Trail headed towards the main west entrance to Zion National Park (the "Park" or "Zion") on the morning of August 29, 2009. The Pa'rus Trail generally follows the path of the North Fork of the Virgin River leading upstream from the two Park campgrounds just inside the Park's west entrance, and heads northeasterly to a terminus just past the road intersection at the Canyon Junction. The trail crosses the river several times in itsroughly two-mile stretch from the Canyon Junction south to its other terminus at the Watchman Campground.

The pedestrian truss bridges for the Pa'rus Trail include metal cover plates at both ends of each of the several bridges on the trail. Those metal plates cover and span the small gaps between the cement abutments at each end of the bridges and the rest of the bridge structure itself. The bridges also originally used wood lumber for decking material. In 2004, after about ten years of use, National Park Service ("NPS") officials at Zion decided that the wood decking should be replaced because it regularly swelled and contracted with the temperature and humidity extremes at the Park, causing the boards to warp and to be in need of frequent maintenance. In late 2004, the NPS ordered and installed new synthetic lumber on the bridges that would not swell and contract like the earlier wood decking.

On the morning of August 29, 2009, Ms. Diegelman and her husband had been riding their bikes in the Park, first up the Pa'rus Trail, and then returning towards the Park entrance. They first traveled over a bridge spanning Pine Creek and had just entered the second bridge (spanning the North Fork of the Virgin River) south of the canyon junction. Mr. Diegelman was about half way across the second bridge when he heard his wife crash and scream somewhere behind him. Ms. Diegelman had just turned right onto the second bridge from the paved trail when she fell.

As of late August, 2009, when the accident in this case occurred, the Pa'rus Trail did not have any warning signs along it other than a caution sign at either end of the trail that read: "CAUTION - SLOW DOWN - PEDESTRIAN TRAFFIC."¹

On April 8, 2011, Plaintiffs filed their Amended Complaint in this case, alleging that the metal cover plates on either end of the bridge were too slippery. Defendant filed its Amended Motion to Dismiss on August 31, 2012, arguing that the discretionary function exception to the Federal Tort Claims Act ("FTCA") deprives this Court of jurisdiction to hear the matter.

II. STANDARD OF REVIEW

Defendant has moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(1). Challenges under Rule 12(b)(1) take one of two forms: (1) facial attacks "challeng[ing] the sufficiency of the complaint, requiring the district court to accept the allegations in the complaint as true," and (2) factual attacks, "challeng[ing] the facts upon which subject matter jurisdiction depends."² When there is a factual attack, "the court must look beyond the complaint and has wide discretion to allow documentary and even testimonial evidence under Rule 12(b)(1)."³ Where, as here, resolving the jurisdictional claim does not require resolving an aspect of the substantive merits claim, a motion to dismiss is not converted into a motion under Rule 12(b)(6) or Rule 56.⁴

III. DISCUSSION

Plaintiffs claim that the United States was grossly negligent in the following particulars:

a. Design, maintenance and usage of the bridge and its component parts, which created an unreasonable and unsafe condition for bikers, including Plaintiff Cristina Diegelman;

b. Failure to warn of dangerous conditions;

c. Failure to take action to repair the dangerous conditions that Defendant was or should have been aware of.⁵

"To prevail, however, Plaintiffs must prove more than negligence. They must also first prove that their claims are not based upon actions immunized from liability under the [FTCA's] discretionary function exception, 28 U.S.C. § 2680(a)."⁶ Pursuant to the discretionary function exception, the FTCA's waiver of sovereign immunity does not apply to

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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.⁷

To determine whether the discretionary function exception applies, district courts apply the two-pronged test of Berkovitz v. United States.⁸ In Berkovitz, the Supreme Court explained:

In examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice. Thus, the discretionaryfunction exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect.⁹

If the Court determines that the conduct in question does involve discretion or judgment, the Court then must determine whether the judgment is

of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress' desire to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy.¹⁰

Furthermore, if the first prong is satisfied,

it must be presumed that the agent's acts are grounded in policy when exercising that discretion. For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime. The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.¹¹

A. DISCRETIONARY NATURE

In this case, Plaintiffs concede that the acts of the Park Service relevant to this action were discretionary in nature and were not compelled by any specific mandatory federal statute, regulation, or other directive. Therefore, the first of the two prongs of the Berkovitz test forapplying the discretionary function exception is satisfied and "it must be presumed that [the NPS's] acts are grounded in policy."¹²

B. GROUNDED IN POLICY

To prevail on the second prong and avoid dismissal, Plaintiffs "must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime."¹³

In this case, the policies of the regulatory regime include the NPS policies contained in the NPS Organic Act.¹⁴ In that Act, the NPS is charged with

promot[ing] and regulat[ing] the use . . . of national parks . . . by such means and measures as conform to the fundamental purpose of the said parks . . . which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.¹⁵

1. WARNING SIGNS

Defendant contends that the NPS's decision of whether and how to warn of danger on the Pa'rus Trail

involves social, economic, and political policy issues of the type that Congress intended to protect, including balancing the competing natural preservation purposes of park creation with providing access to park visitors, aestheticconsiderations, the notice and need for various types of warnings, their effectiveness, and practical concerns such as staffing and funding.¹⁶

Defendant cites to the Tenth Circuit's decision in Elder, to support this assertion.¹⁷

In Elder, a young boy who was trying to cross a stream near Middle Emerald Pools at Zion slipped and fell to his death. The boy's parents filed a lawsuit alleging that the NPS was negligent in failing to adequately warn of the danger and in failing to erect barriers that would have prevented the fall. The court found that decisions regarding signs and barriers were protected by the discretionary function exception because,"[f]or one thing, park officials must weigh the cost of safety measures against the additional safety that will be achieved. Even inexpensive signs may not be worth their cost."¹⁸ The court also stated that, "[m]ore importantly, in a national park whose purpose is to preserve nature and display its beauty to the public, any safety measure must be weighed against damage to natural resources and aesthetic values."¹⁹

Plaintiffs argue that Elder is distinguishable from the instant case because "[s]ome places...