Faber v. U.S.

Citation56 F.3d 1122
Decision Date06 June 1995
Docket NumberNo. 94-16096,94-16096
PartiesEverett Todd FABER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Gary S. Grynkewich, Linden, Chapa & Fields, Tucson, AZ, for the plaintiff-appellant.

Eugene R. Bracamonte, Asst. U.S. Atty., Tucson, AZ, for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: FLOYD R. GIBSON, * HUG, and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

Everett Todd Faber sued the United States in tort for its failure to warn of the existence of diving hazards in a national park. The district court granted summary judgment in favor of the United States on the basis that the discretionary function exception to the Federal Tort Claims Act ("FTCA") rendered the court without subject matter jurisdiction to adjudicate Faber's claim. Faber appealed. We vacate the judgement of the district court and remand the case for consideration of Faber's tort claim.


Faber's injury occurred at the Tanque Verde Falls ("the Falls"), located in the Coronado National Forest near Tucson, Arizona. On April 14, 1991, Faber dove approximately twenty feet from a rock ledge at the top of the Falls into a pool. During the dive, Faber struck his head and suffered severe injuries. Faber was rendered a quadriplegic. Because the Tanque Verde Falls are part of a national forest, they are managed by the United States Forest Service. At the time of Faber's accident, there were four warning signs located at the top of the Falls which warned generally of danger and natural hazards and specifically of flash flooding and slippery rocks. 1 The four signs had been in place since at least 1985.

Prior to Faber's accident in 1991, several "site management plans" were promulgated for the Falls. In May 1986, a "Site Management Plan for Tanque Verde Falls" was promulgated, which included graphs of the number, times, and nature of accidents occurring at the Falls. The graphs showed that seven percent of the accidents were diving accidents and that a large percentage of the victims were young adults. In June, 1986, a "Tanque Verde Falls Management Plan" was promulgated which stated that "[t]he need to re-evaluate the present management at Tanque Verde Falls has arisen due to accidents and the increase of resource damage." The management plan mandated the following action:

Intensify the management for the area by constructing parking lots, trails, and helispots. Also, develop a sign plan, formulate an on-going media program to inform the public, and provide a presence at the Falls to verbally warn the public, enforce the laws, and record use patterns.

No new signs had been added to the upper Falls area between 1985 and 1991. At the time of Faber's accident, there were no written, verbal, or other warnings which specifically mentioned the hazards associated with diving from the Falls.

Faber filed this action against the United States in 1993. The United States moved for summary judgment on the ground that it was immune from suit under the FTCA's discretionary function exception. The district court granted summary judgment, holding that it lacked subject matter jurisdiction, because "[t]he decision involved a discretionary choice concerning whether to warn against specific dangers or to inform generally of features of the region" and "the Forest Service's discretionary decision involved social, economic, and political considerations." Faber now appeals.


Although the plaintiff bears the initial burden of proving subject matter jurisdiction under the FTCA, "the United States bears the ultimate burden of proving the applicability of the discretionary function exception." Prescott v. United States, 973 F.2d 696, 701-02 (9th Cir.1992). We review de novo both the district court's grant of summary judgment as well as its determination of subject matter jurisdiction. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994) (summary judgment); Nike, Inc. v. Comercial Iberica De Exclusivas Deportivas, 20 F.3d 987, 990 (9th Cir.1994) (subject matter jurisdiction).


The Federal Tort Claims Act waives the federal government's sovereign immunity when its employees are negligent within the scope of their employment. One of the main purposes of the FTCA is to establish consistency between the liability incurred by individuals and by the government for the commission of tortious acts. Hence, the government can be sued "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. Sec. 1346(b).

Consistent with this purpose, the FTCA is limited by a number of exceptions including the discretionary function exception, which bars a 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 agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. Sec. 2680(a). The discretionary function exception restores the government's immunity in situations where its employees are carrying out governmental or "regulatory" duties. See 138 Cong.Rec. S13982-01, *S14010 (daily ed. Sept. 18, 1992). Accordingly, if the government can prove that the actions taken by its employees consisted of the unique functions and responsibilities of the government, then the government cannot be held liable under the FTCA even if a private individual would be held liable. See H.R.Rep. No. 1015, 101st Cong.2nd Sess. 134 (1991) ("The purpose of the discretionary function exception is to protect the ability of the government to proceed with decisionmaking in carrying out its unique and vital functions without 'second-guessing' by the courts as to the appropriateness of its policy choices"); United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2764-65, 81 L.Ed.2d 660 (1984). However, in cases where the government is alleged to have committed negligence in the performance of a function such as that performed by a private citizen, rather than in the fulfillment of a broad policy-making duty, the government is subject to suit.

It is clear that the question of what constitutes adequate warning is not typically related to broad public policy. To the contrary, the typical case in which the government is sued for a failure to warn is like Summers v. United States, 905 F.2d 1212 (9th Cir.1990), where the government was not shielded from liability for the Forest Service's failure to provide adequate warnings about fire rings on a beach in a national park. The Forest Service's conduct was not related to a matter of broad public policy. Id. at 1215. Rather, the conduct was the same as that of a private citizen who fails to take proper action to ensure the safety of visitors on its property and is thereby liable for negligence. 2 See ARA Leisure Services v. United States, 831 F.2d 193, 195 (9th Cir.1987) (quoting Aslakson v. United States, 790 F.2d 688, 693 (8th Cir.1986)) ("where the challenged governmental activity involves safety considerations under an established policy, rather than the balancing of competing policy considerations, the rationale for the exception falls away and the U.S. will be responsible for the negligence of its employees"); Sutton v. Earles, 26 F.3d 903, 910 (9th Cir.1994) (the Navy's failure to post a speed limit sign in contravention of a federal regulation "was more than a failure to enforce a general system of regulation; it can reasonably be regarded as a failure to warn").

Thus, a failure to warn involves considerations of safety, not public policy. It would be wrong to apply the discretionary function exception in a case where a low-level government employee made a judgment not to post a warning sign, or to erect a guardrail, or to make a safer path. Such a judgment would be no different than a judgment made by a private individual not to take certain measures to ensure the safety of visitors. To interpret such a judgment as discretionary would be too expansive an interpretation of Congress' intent in creating the discretionary function exception. Therefore, in cases where the government has allegedly failed to warn, the use of the discretionary function exception must be limited to those unusual situations where the government was required to engage in broad, policy-making activities or to consider unique social, economic, and political circumstances in the course of making judgments related to safety. See Lesoeur v. United States, 21 F.3d 965, 970 (9th Cir.1994) (where the court applied the discretionary function exception because of the unusual circumstances involved in the government's failure to warn).

This case involves the question of whether the Forest Service was negligent in ensuring the safety of the public in an area under the Forest Service's control. The actions that the Forest Service was required to take in the course of implementing proper warnings at the Falls were not broad policy-based decisions that warranted protection pursuant to the discretionary function exception. No unusual circumstances existed which required the Forest Service to engage in policy-making or discretionary activities. Therefore, we reject the government's attempt to escape liability under the discretionary function exception.

In order to determine the applicability of the discretionary function exception in a given case, this court applies the two-part test established in Berkovitz v. United States, 486 U.S. 531, 535, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). See Kennewick Irrigation District v. United States, 880 F.2d 1018, 1025 (9th Cir.1989). First, we must consider whether the action taken is a matter of choice or judgment for the...

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