Estate of Harshman v. Jackson Hole Mountain Resort

• Decision Date: 29 April 2002
• Docket Number: No. 01-CV-0100-B.,01-CV-0100-B.
• Citation: 200 F.Supp.2d 1329
• Parties: ESTATE of Adam HARSHMAN, Rachel Harshman, Brooks Harshman and Lauren Harshman, Plaintiffs, v. JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming Corporation, United States of America, and Does 1 through 30, inclusive, Defendants.
• Court: U.S. District Court — District of Wyoming

200 F.Supp.2d 1329

ESTATE of Adam HARSHMAN, Rachel Harshman, Brooks Harshman and Lauren Harshman, Plaintiffs, v. JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming Corporation, United States of America, and Does 1 through 30, inclusive, Defendants.

No. 01-CV-0100-B.

United States District Court, D. Wyoming.

April 29, 2002.

COPYRIGHT MATERIAL OMITTED

Robert E. Schroth, Jackson, WY, for plaintiff.

James K. Lubing, Jackson, WY, Mikel L. Moore Christensen, Moore, Cockrell, Cummings & Axelberg, Kalispell, MT, for Jackson Hole Mountain Resort.

Carol A. Statkus, Assistant U.S. Attorney, Cheyenne, WY, for United States of America.

ORDER GRANTING DEFENDANT UNITED STATES' MOTION TO DISMISS AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BRIMMER, District Judge.

This case arises from the tragic death of Adam Harshman, who was fatally injured while snowboarding in a man-made terrain park at the Jackson Hole Mountain Resort. The matter is currently before the Court on the Defendant United States' Motion to Dismiss for lack of subject matter jurisdiction, and Defendants' Motion for Summary Judgment and Jackson Hole Mountain Resort Corporation's Alternative Motion for Summary Judgment. Upon reading the briefs, hearing oral argument, and being fully advised of the premises, the Court FINDS and ORDERS as follows:

Statement of Parties and Jurisdiction

Plaintiff Rachel Harshman is the duly appointed, qualified and acting Personal Representative of the Estate of Adam Harshman ("Decedent"). Rachel Harshman, the Decedent's Mother, is bringing this action in her capacity as Personal Representative of the Estate of Adam Harshman, and as an individual. Plaintiff Brooks Harshman is the Decedent's father, and Plaintiff Lauren Harshman is the Decedent's sister. The Decedent, Adam Harshman, was a sixteen year old boy who was fatally injured while snowboarding over a manmade jump in the terrain park at the Jackson Hole Mountain Resort.

Defendant Jackson Hole Mountain Resort Corporation ("JHMRC"), is a corporation duly organized and existing under the laws of the State of Wyoming. Defendant JHMRC operates the Jackson Hole Mountain Resort located at Teton Village, County of Teton, Wyoming. Defendant United States of America is the owner of the real property known as the Jackson Hole Ski Area located at Teton Village, County of Teton, Wyoming. Defendant JHMRC operates the Jackson Hole Mountain Resort pursuant to a Special Use Permit and Operating Plan between the United States Forest Service and the JHMRC. Defendant JHMRC pays a ski area permit rental charge pursuant to 16 U.S.C. § 497c(b), any applicable federal regulations, and the Special Use Permit to the United States in order to operate the ski area and resort on National Forest System land.

Plaintiff has brought this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). Yet, as will be discussed below, the Court FINDS that it lacks subject matter jurisdiction over Plaintiffs' claims against Defendant United States. However, the Court FINDS, and the parties at oral argument agreed, that in the interest of justice the Court shall maintain supplemental jurisdiction pursuant to 28 U.S.C. 1367 over the Plaintiffs' state law cause of action against Defendant JHMRC.

BACKGROUND

On February 28, 2000, sixteen year old Adam Harshman ("Decedent"), a life long resident of Jackson Hole, Wyoming, and holder of a season pass at the Jackson Hole Mountain Resort, was fatally injured while snowboarding over a jump in the man-made terrain park at the Jackson Hole Mountain Resort Ski Area. The fatal injury occurred when Decedent, after snowboarding off the twenty-five foot high man-made tabletop jump landed on his upper back and head.

The Terrain Park was a specially designated and roped-off area at Jackson Hole Mountain Resort, which contained manmade obstacles including the tabletop jump in question, and a half pipe for use by skiers and snowboarders. The Decedent had been snowboarding for a number of years prior to his fatal accident and had used the tabletop jump on a number of occasions, including the day prior to his fatal accident.

Plaintiffs claim that the employees of Defendant JHMRC charged with maintaining the terrain park, the park and pipe crew,¹ would inspect and test the jumps at the terrain park each morning for any changes in the jumps from the prior day, and test the jumps throughout the day. The park and pipe crew altered the tabletop jump the night before Decedent's fatal injury, and Plaintiffs argue that the park and pipe crew only performed one test of the tabletop jump the day of Decedent's tragic accident.²

Plaintiffs' Complaint lists four causes of action: Count One, Wrongful Death; Count Two, Premises Liability; Count Three, Complaint for Damages for Personal Injury Based on Negligence By Recreational User Against Owner of Real Property; and Count Four, Negligent Training and/or supervision. In support of Counts One, Two and Three, Plaintiffs allege that Defendants negligently maintained, controlled, managed, and operated the terrain park, in that Defendants knew or should have known the terrain park was at all times in a dangerous condition and constituted an unreasonable risk of harm, which Defendants failed to warn of.³ In support of Count Four, Negligent Training and/or Supervision, Plaintiffs allege that Defendants knew that Defendants Does 1 through 15 were neither qualified nor able to safely design, construct, operate, and maintain the terrain park.

Defendants argue that Decedent was an experienced snowboarder, who had been snowboarding since the age of ten, who was a member of the Jackson Hole Ski Club, and had held a season pass at both Jackson Hole Mountain Resort and Snow King for three or four years prior to the February 28, 2000 accident. Defendants claim that the terrain park was separated from the general ski area and that it was surrounded by a fence and gate with a sign warning those of the risks associated with the terrain park. Defendants also allege that at the time of the accident, there were no established standards on how to build a tabletop jump and that the operation and maintenance of this jump was left to the discretion of the park and pipe crew.

ANALYSIS

I. Defendant United States' Motion to Dismiss

Plaintiffs' claims against Defendant United States relate to the level of regulation of snowboarding and the level of regulation of the ski area permitee, Defendant JHMRC. Defendant United States argues that Plaintiffs' allegations must be dismissed for lack of subject matter jurisdiction, as the United States contends that the claims against it cannot be maintained under the FTCA's discretionary function exception, 28 U.S.C. § 2680(a). Defendant United States claims that it is protected by the discretionary function exception, in that allowing Defendant JHMRC to operate and determine the manner in which the ski area and terrain park will be operated, as well as the Defendant United States' level of involvement in the regulation of snowboarding at the ski area and terrain park, is purely a matter of judgement for the United States Forest Service ("USFS"). The United States further argues that the degree of regulation of snowboarding and choice to allow Defendant JHMRC to operate the ski area and terrain parks with limited oversight is a discretionary decision based on considerations of public policy, which the discretionary function exemption was intended to protect.

Plaintiffs argue that the United States does not qualify for the FTCA's discretionary function exception because the Government's decisions regarding the ski area are not based on the USFS's discretionary judgment. Plaintiff contends that the USFS's role in oversight, management, and regulation of snowboarding and the ski area permitee, Defendant JHMRC, is specifically prescribed by the Special Use Permit and the 1999-2000 Winter Operating Plan between the United States and JHMRC. Plaintiffs further claim that Defendant United States' decision regarding the oversight and regulation of snowboarding at the terrain park is not grounded upon considerations of public policy.

Subject Matter Jurisdiction 12(b)(1)

In challenging the existence of subject matter jurisdiction pursuant to Rule 12(b)(1), a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547 (10th Cir.2001) (citing Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995)). By allowing this, the Court does not presume the truthfulness of the complaint's factual allegations, "but has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. The Court may consider some extrinsic evidence in determining a 12(b)(1) motion under the FTCA without rendering the motion a motion for summary judgment. Thune v. United States, 872 F.Supp. 921, 923 (D.Wyo.1995).

Federal Tort Claims Act ("FTCA")

The FTCA, 28 U.S.C. § 1346(b), generally authorizes suits against the United States for damages:

[F]or injury or loss of property, or personal injury or death 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.⁴

This broad waiver of sovereign immunity is limited by a number of exceptions contained in the FTCA. The exception relevant to the present action is the discretionary function exception which in pertinent part provides that no liability shall lie for:

Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal...