Elder v. U.S., 01-4120.

• Decision Date: 03 December 2002
• Docket Number: No. 01-4120.,01-4120.
• Citation: 312 F.3d 1172
• Parties: Nancy ELDER and Jeffrey D. Eggertz, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

312 F.3d 1172

Nancy ELDER and Jeffrey D. Eggertz, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 01-4120.

United States Court of Appeals, Tenth Circuit.

December 3, 2002.

Kathryn Collard of the Law Firm of Kathryn Collard LC, Salt Lake City, Utah, for Plaintiffs-Appellants.

Jeffrey E. Nelson, Assistant United States Attorney (Paul M. Warner, United States Attorney, Carlie Christensen, Assistant United States Attorney, Salt Lake City, Utah, and G. Kevin Jones, Office of the Solicitor, United States Department of the Interior, of counsel, with him on the brief), for Defendant-Appellee.

Before HARTZ, ALDISERT,^* and PORFILIO, Circuit Judges.

HARTZ, Circuit Judge.

Plaintiffs Nancy Elder and Jeffrey D. Eggertz appeal from the district court's order granting summary judgment in favor of Defendant, the United States of America. Plaintiffs brought this action under the Federal Tort Claims Act (FTCA), 28 U.S.C §§ 1346(b) and 2671-2680, for the wrongful death of their 12-year-old son, Tyler Eggertz, who died when he slipped and fell over a ledge while crossing a stream at the Middle Emerald Pools at Zion National Park (Zion).

Plaintiffs allege that Zion employees were negligent in failing to protect visitors, by warnings or otherwise, from the danger of falling at the Middle Emerald Pools. The district court ruled that liability was foreclosed by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

The horrific accident at issue in this case occurred on March 28, 1997. Tyler Eggertz died while attempting to cross a small stream at the Middle Emerald Pools at Zion National Park. As he stepped into the stream, he slipped on slick algae growing on the streambed and fell down. Unable to rise, Tyler slid downstream approximately 15 feet, fell over a ledge, and plunged more than 100 feet onto rocks below.

The Emerald Pools is one of Zion's most-visited attractions, drawing approximately one-third of the park's more than two million annual visitors. The Emerald Pools attraction has three levels: the Lower, Middle, and Upper Emerald Pools. The Middle Emerald Pools is a smooth, relatively flat sandstone plateau that slopes downward toward an overhanging ledge. Two shallow, narrow streams flow over the plateau, down the sandstone surface, and off the plateau ledge, creating waterfalls which cascade onto rocks near the Lower Emerald Pools, more than 100 feet below. The stream that Tyler attempted to cross was less than four feet wide and only three to five inches deep. (A photograph of the Middle Emerald Pools as it appeared shortly after Tyler's death is attached as an appendix to this opinion.)

Prior to his fall, Tyler had been hiking with his family along the Emerald Pools trail, a popular trail leading to the three Emerald Pools. This trail begins just across the road from the main lodge at Zion. Near the Lower Emerald Pools, the trail splits into two branches which initially head in opposite directions. Both branches ascend toward the Middle Emerald Pools. The trail then continues higher to the Upper Emerald Pools.

At the Lower Emerald Pools, Tyler, his 15-year-old sister, and his 14-year-old cousin hiked ahead of their family, and proceeded up the right branch of the trail toward the Middle Emerald Pools. Along the trail to the Middle Emerald Pools, there were at least 14 signs that warned of various hazards and cautioned visitors to stay on the trail. Four signs read, "All three Emerald Pools and connecting creeks are closed to swimming, bathing and wading." Four other signs warned: "Stay on trail. Caution. Near the edge footing can be dangerous." Two signs read "Danger — Cliff. Slippery Sandstone. Unstable Rock Edge. Wet Rock Hazardous." Four signs indicated the path and direction of the trail. And off the trail, embedded in the sandstone near where Tyler tried to cross the stream, five signs read, "Danger beyond this point," although Plaintiffs dispute that Tyler was close enough to the ledge to see these particular signs at the time of the accident.

No signs specifically mentioned the danger of algae in the streams. Also, as the trail enters the sandstone plateau of the Middle Emerald Pools, no barriers or guardrails prevented visitors from leaving the trail and walking toward the ledge.

When the children reached the Middle Emerald Pools, they left the trail and sat on the sandstone plateau by one of the streams, approximately 15 feet from the ledge. It was near here that Tyler attempted to cross the stream, slipped on the algae growing on the sandstone streambed, and fell to his death.

Tyler's death was not the first at the Middle Emerald Pools. In 1968, 1983, and 1984, three other individuals had fallen to their deaths from the same area where Tyler died. A fourth person may also have died at the Middle Emerald Pools in 1972. Tyler's accident was nearly identical to the accidents that occurred in 1983 and 1984; in each case an individual slipped on algae while crossing a stream, and perished after sliding over the ledge onto the rocks below.

After each fatality at the Middle Emerald Pools, Zion's superintendent convened a board of inquiry to evaluate the circumstances of the accident and recommend potential safety improvements. The 1983 inquiry led Zion employees to add and change certain warning signs near the site of the accident. The 1984 inquiry induced discussions about a number of possible safety improvements at the Middle Emerald Pools, including augmenting existing warning signs to indicate that individuals had died in the area, and placing boulders along the trail edge to better delineate the trail across the sandstone. But apparently Zion officials did not implement any of these suggestions prior to Tyler's death.

In 1995 the safety committee undertook an analysis of safety issues relating to the Emerald Pools trail. The committee discussed whether signage at the Middle Emerald Pools was adequate, and considered the feasibility of installing a device, such as a cable "grab bar" or net, that could prevent a visitor who slipped in the stream from falling over the ledge. In addition, the committee considered whether "additional accident prevention work is needed" at the Emerald Pools area and identified two "action items": (1) "Reposition a few of the signs to more visible areas," and (2) "Consider natural barricades in some areas." The record does not reflect whether any of these suggestions was implemented prior to Tyler's death.

Following Tyler's death, Zion officials modified the signage along the Emerald Pools trail. For example, at the beginning of the Emerald Pools trail, Zion officials added a sign reading, "Please: watch your children-there are steep drop-offs. Swimming or wading in the pools is prohibited." In addition, Zion officials removed two of the "Danger beyond this point" signs that were embedded in the sandstone plateau of the Middle Emerald Pools, and installed a rope chain near the Middle Emerald Pools to better define the path of the trail in that area. Although unclear from the record, it is also possible that additional signs indicating the path and direction of the trail to the Middle Emerald Pools were installed, and that two of the signs prohibiting "swimming, bathing, and wading" in the Emerald Pools were moved to different locations on the trail.

II. ANALYSIS

The FTCA waives the federal government's sovereign immunity for "the negligent or wrongful act or omission" of a federal employee "acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). Plaintiffs allege that the government was negligent in (1) failing to warn of the algae hazard at the Middle Emerald Pools and (2) failing to provide adequate barriers, equipment, or supervision to prevent visitors from falling over the ledge at the Middle Emerald Pools.

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). See Aragon v. United States, 146 F.3d 819, 823 (10th Cir.1998) ("The discretionary function exception poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction.") (internal quotation marks omitted). This exception excludes from the FTCA's waiver of immunity those claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty" by a federal agency or government employee. 28 U.S.C. § 2680(a). The 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). Because the exception applies "whether or not the discretion involved [was] abused," 28 U.S.C. § 2680(a), it is irrelevant whether the government employees were negligent. Aragon, 146 F.3d at 822.

To determine whether the discretionary function exception applies to the challenged conduct, this circuit employs the two-pronged test of Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). See, e.g., Aragon, 146 F.3d at 823. We have summarized the test as follows:

The first step of the Berkovitz test requires this court to determine whether the challenged conduct "involves an element of judgment or choice," in which case it is discretionary and falls within the language of the exception, or whether it involves "a federal statute, regulation, or policy [that] specifically prescribes a course of action for an employee to follow," in which case the exception does not...