Figueroa v. U.S.

• Decision Date: 05 February 1999
• Docket Number: No. 1:97-CV-003J.,1:97-CV-003J.
• Citation: 64 F.Supp.2d 1125
• Court: U.S. District Court — District of Utah
• Parties: Jose FIGUEROA, individually and on behalf of the heirs of Rodrigo Figueroa; Rafael Figueroa, Iryana Figueroa, Paulina Figueroa, Karla Figueroa, and Jose Figueroa, Jr., Plaintiffs, v. UNITED STATES of America, and S & L Services, Inc., Defendants.

64 F.Supp.2d 1125

Jose FIGUEROA, individually and on behalf of the heirs of Rodrigo Figueroa; Rafael Figueroa, Iryana Figueroa, Paulina Figueroa, Karla Figueroa, and Jose Figueroa, Jr., Plaintiffs, v. UNITED STATES of America, and S & L Services, Inc., Defendants.

No. 1:97-CV-003J.

United States District Court, D. Utah, Northern Division.

February 5, 1999.

COPYRIGHT MATERIAL OMITTED

James R. Hasenyager, Odgen, Utah, for plaintiff.

Carlie Christensen, Assistant U.S. Attorney, Salt Lake City, Utah, Barbara K. Berrett, Salt Lake City, Utah, for defendants.

MEMORANDUM OPINION AND ORDER

JENKINS, Senior District Judge.

On January 6, 1999, the above-captioned action came on for hearing on the defendants' separate motions for summary judgment. At the hearing, Carlie Christensen, Assistant United States Attorney, argued the motion on behalf of the United States and the United States Forest Service; Barbara K. Berrett argued the motion on behalf of S & L Services, Inc.; and James R. Hasenyager argued on behalf of the plaintiffs. At the close of the hearing, the court took the matter under advisement. The court, now having carefully considered the defendants' motions, the parties' supporting and opposition memoranda, and having heard argument from counsel, and for reasons discussed more fully below, hereby denies in full the motion of S & L Services and denies in part the motion of the United States.

Background Facts

Briefly summarized, on July 25, 1994, Elizabeth Holton was fatally injured when she was struck on the head by a falling rock while visiting the Hanging Rock Picnic Area. Hanging Rock, a popular picnic location, was located in the Uinta National Forest, an area owned by the United States and administered by the United States Forest Service.¹ When she was struck, Ms. Holton had been standing in or near the river bed of the American Fork River that runs through the picnic area. Immediately, the Forest Service closed the picnic area. It remained closed for the remainder of 1994.

In response to the fatal injury, in the early summer of 1995, the Forest Service erected a pole fence — similar to a split-rail fence — at the picnic area. The fence, more a decorative feature than a barrier, was installed to delineate what the Forest Service considered a rock fall hazard zone. The fence ran east to west through the southern tip of a grassy picnic area, stopping short of the river. Three signs were affixed to the fence which read "FALLING ROCK AREA." In addition, a fourth sign that read "CAUTION FALLING ROCKS IN THIS AREA" was placed on a bulletin board that was affixed to the outside wall of the bathroom building. In July 1995, the Forest Service reopened the picnic area.

On July 29, 1995, just a few weeks after the picnic area was reopened and almost a year to the day that Elizabeth Holton was killed, the Figueroa family visited Hanging Rock. After parking their car, the family walked toward the fence. Each member of the family climbed through the fence in order to take family pictures near the river. There were fishermen in the river and two families picnicking inside the fenced-in area. Family members gathered on a rock in the river for a photo. After the photo was taken, thirteen year-old Rodrigo Figueroa remained on the rock. While standing alone he was struck on the head by a falling rock and killed. As before, the Forest Service immediately closed the picnic area. It was never reopened. The picnic area was later bulldozed over and all improvements were removed.

On May 21, 1996, the parents of Rodrigo filed an administrative claim pursuant to the Federal Tort Claims Act ("FTCA"). Subsequently, on January 7, 1997, and pursuant to the FTCA, the parents and heirs of Rodrigo filed a wrongful death action in this court seeking damages as a result of Rodrigo's death. See 28 U.S.C. § 1346(b). Rodrigo's siblings also filed claims to recover for the emotional distress they allegedly suffered as a result of witnessing their brother's death. The plaintiffs filed these claims against the United States and S & L Services, Inc., the private party contracted to operate the picnic area. The claims, all negligence based, include a failure to warn and a failure to adequately supervise the operations of the picnic area.

On November 10, 1998, both the United States and S & L Services filed motions for summary judgment. The focus of the United States' motion is on subject matter jurisdiction. It argues that the plaintiffs claims are barred under the "discretionary function exception" to the FTCA. See 28 U.S.C. § 2680(a). It argues that because the decision to close or not close the picnic site, and the decision on what types of warning signs, if any, should be placed at the site, were "discretionary" decisions based on "public policy concerns," the plaintiff's are barred from bringing this action because this court lacks subject matter jurisdiction.

The United States also asserts that Utah's "Limitation on Landowner Liability Act," Utah Code Ann. §§ 57-14-1 et seq. provides the United States with immunity from plaintiffs' claims. Under the Act, any landowner, including a public landowner, who opens up his land for recreational uses and who does not charge a fee is generally considered immune from liability. See Utah Code Ann. § 57-14-4.

Even if not immune from suit, the United States argues that it has met the reasonable care standard owed to invitees under Utah law because it put up a fence and signs warning of the rock fall danger. In addition, the United States argues that the plaintiffs claims for negligent infliction of emotional distress must fail because the administrative notice required under the FTCA did not set forth sufficient facts about this claim so that the United States could properly investigate it. It also argues that because none of the plaintiffs actually saw the rock hit Rodrigo, these claims must fail as a matter of law.

Like the United States, S & L asserts that it too is immune from suit under Utah's Limitation on Landowners Liability Act. S & L argues that as a special permittee of the Forest Service, and as the party contracted to operate the campgrounds in the Uinta National Forest, including the Hanging Rock Picnic Area, it was falls within the definition of land "owner" set forth in the Act. See Utah Code Ann. § 57-14-2.

S & L also argues that, as a matter of law, it had no duty to investigate, minimize, or eliminate any rock fall hazards at the picnic area because the terms of its permit with the Forest Service did not allow it to do so, nor did the permit allow S & L to erect any signs warning of the hazard. In addition, because the injury occurred in the river, an area that S & L argues is outside the scope of its special permit, S & L asserts that it had no duty whatsoever to persons who were injured in the river. And lastly, S & L argues that in any event it had no knowledge of the rock fall hazard, and that the United States' failure to disclose the hazard entitles S & L to void or rescind the special permit.

I

Under the historic English common law maxim "Rex non potest peccare," loosely translated as "the King can do no wrong," a sovereign was immune from liability. This doctrine was first noted by Chief Justice Marshall as protecting the United States from suit in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12, 5 L.Ed. 257 (1821) ("The universally received opinion is, that no suit can be commenced or prosecuted against the United States...."), and judicially recognized in United States v. Clarke, 33 U.S. (8 Pet.) 436, 444, 8 L.Ed. 1001 (1834) ("As the United States are not suable of common right, the party who initiates suit must bring his case within the authority of some act of congress, or the court cannot exercise jurisdiction over it."). The Supreme Court has noted that the grant of this immunity was intended to prevent litigation from interfering with public acts that are essential to the governing of the Nation. See Nichols v. United States, 74 U.S. (7 Wall.) 122, 126, 19 L.Ed. 125 (1868) (emphasis added).

In 1946, after nearly thirty years of consideration, the Federal Tort Claims Act was passed by Congress. As understood by the Supreme Court, the adoption of the FTCA was the "offspring of a feeling that the Government should assume the obligation to pay damages for the misfeasance of employees carrying out its work." Dalehite v. United States, 346 U.S. 15, 24-30, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (discussing the legislative history of the FTCA). In effect, the FTCA partially ameliorated traditional sovereign immunity by imposing responsibility on the United States for its negligent conduct. American citizens who were injured as a result of the negligence of the United States could now sue for damages. Before the FTCA was enacted, the only way a person could be compensated for an injury negligently caused by the United States was to have a private claim bill presented in and passed by Congress and signed into law by the President. See id. at 24-25 & n. 9, 73 S.Ct. 956. The FTCA avoided this clumsy (and likely partisan) approach in favor of an easier and simpler practice that gave federal district courts the power to hear claims against the United States "for money damages ... for injury ... or death caused by the negligent or wrongful act or omission of any employee of the Government."² 28 U.S.C. § 1346(b)(1). Under the FTCA, the United States is made liable to the same extent that "a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Id.

Despite the broad waiver of sovereign immunity reflected in the language of the FTCA, immunity still exists in some circumstances. By virtue of the thirteen enumerated exceptions found in 28 U.S.C. § 2680, the United States still retains limited immunity for its negligent acts. One of these exceptions, the so-called "discretionary function exception,"...