Gadd by and through Gadd v. U.S.

• Decision Date: 29 April 1997
• Docket Number: No. 2:94-CV-0527-S.,2:94-CV-0527-S.
• Citation: 971 F.Supp. 502
• Parties: Krystal GADD, a minor, By and Through her Guardian, Brian GADD, and George Gadd, Plaintiffs, v. UNITED STATES of America, State of Utah, the Utah Department of Wildlife Resources, Defendants.
• Court: U.S. District Court — District of Utah

971 F.Supp. 502

Krystal GADD, a minor, By and Through her Guardian, Brian GADD, and George Gadd, Plaintiffs, v. UNITED STATES of America, State of Utah, the Utah Department of Wildlife Resources, Defendants.

No. 2:94-CV-0527-S.

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

April 29, 1997.

COPYRIGHT MATERIAL OMITTED

Tad D. Draper, Midvale, UT, Rick Carter, Clark & Carter, Yuma, AZ, for plaintiffs.

Scott M. Matheson, Jr., U.S. Atty., Jill N. Parrish, Stephen L. Roth, Salt Lake City, UT, Dan L. Larsen, Utah Attorney General's Office, Peter Stirba, Stirba & Hathaway, Salt Lake City, UT, for defendants.

I. INTRODUCTION

SAM, District Judge.

The court has before it the United States's motion to dismiss and its alternative motion for summary judgment, as well as the motion for summary judgment of defendants State of Utah and The Utah Department of Wildlife Resources.

Briefly, the facts are as follows. On June 23, 1992, plaintiffs were camping at the United States Forest Service's Flintlock Campground¹, situated within Wasatch County, Utah. Around midnight a black bear broke into a pickup truck camper shell in which plaintiff Krystal Gadd was sleeping and dragged her away. Krystal was rescued by her grandfather, plaintiff George Gadd, who confronted the bear and eventually drove it off. Krystal suffered serious wounds requiring hospitalization and surgery. Plaintiff George Gadd was not physically injured during the encounter, but seeks damages for emotional distress. Plaintiffs in their complaint set forth six separate claims for relief alleging their injuries were due to the negligence of the United States and the State of Utah. As summarized by plaintiffs, their complaint "in essence, alleges that the attack was caused by numerous negligent acts/or omissions regarding the operation, management, control and supervision of the Strawberry Recreation Area and the wildlife contained therein." Plaintiffs' Memorandum in Opposition, p.ii.

By its motion, the United States requests that the court dismiss plaintiffs' claims pursuant to Fed.R.Civ.P. 12(b)(1) because they fall within the discretionary function exclusion of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(a), and the court, therefore, lacks subject matter jurisdiction. The United States also requests that plaintiffs' claim based on strict liability be dismissed because the FTCA extends only to wrongful or negligent acts, not to claims based on absolute liability, and consequently the court lacks subject matter jurisdiction. Alternatively, the United States seeks summary judgment on the grounds that it owed no duty to plaintiffs.

Defendants State of Utah and The Utah Department of Wildlife Resources (sometimes collectively the "State") seek summary judgment on plaintiffs' claims asserting they had no duty to protect plaintiffs from wild animals; that there was no breach of any duty owed; that wildlife management is a discretionary function for which it has immunity; and, that it is immune under the public duty doctrine. The State also contends that plaintiffs' claim for negligent infliction of emotional distress is barred, and that it is not liable for failure to inspect or negligent inspection.

II. MOTION TO DISMISS STANDARD

When a motion to dismiss is filed, the burden is on the movant to prove that the non-movant can prove no set of facts in support of his claim which would entitle him to relief. Shoultz v. Monfort of Colorado. Inc., 754 F.2d 318 (10th Cir.1985), cert. denied, 475 U.S. 1044, 106 S.Ct. 1259, 89 L.Ed.2d 569 (1986); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court is to presume for purposes of considering the motion that all allegations by the non-movant are true and all reasonable inferences are made in favor of the non-movant. Lafoy v. HMO Colorado, 988 F.2d 97 (10th Cir.1993); Miree v. DeKalb County, 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977). Legal conclusions, deductions, and opinions couched as facts are, however, not given such a presumption. Mitchell v. King, 537 F.2d 385 (10th Cir.1976); Swanson v. Bixler, 750 F.2d 810 (10th Cir.1984). The likelihood that the plaintiff may or may not prevail at trial is immaterial at the time of decision on a motion to dismiss. Boudeloche v. Grow Chem. Coatings Corp., 728 F.2d 759 (5th Cir.1984).

III. SUMMARY JUDGMENT STANDARD

Under Fed.R.Civ.P. 56, summary judgment is proper only when the pleadings, affidavits, depositions or admissions establish there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party.² E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden has two distinct components: an initial burden of production on the moving party, which burden when satisfied shifts to the nonmoving party, and an ultimate burden of persuasion, which always remains on the moving party. See 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2727 (2d ed.1983).

When summary judgment is sought, the movant bears the initial responsibility of informing the court of the basis for his motion and identifying those portions of the record and affidavits, if any, he believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. In a case where a party moves for summary judgment on an issue on which he would not bear the burden of persuasion at trial, his initial burden of production may be satisfied by showing the court there is an absence of evidence in the record to support the nonmovant's case.³ Id., 477 U.S. at 323, 106 S.Ct. at 2552-53. "[T]here can be no issue as to any material fact ... [when] a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id.

Once the moving party has met this initial burden of production, the burden shifts to the nonmoving party to designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

If the defendant in a run-of-the-mill civil case moves for summary judgment ... based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict....

Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512. The central inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. If the nonmoving party cannot muster sufficient evidence to make out a triable issue of fact on his claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. Id., 477 U.S. 242, 106 S.Ct. 2505.

IV. DISCUSSION

A. United States' Motion to Dismiss

The United States seeks dismissal of plaintiffs' claims against it contending that the pertinent actions of the Forest Service fall under the FTCA's discretionary function exception, 28 U.S.C. § 2680(a), and, therefore, the court lacks subject matter jurisdiction. Similarly, the United States contends that the court lacks subject matter jurisdiction to hear plaintiffs' claim of absolute liability based on the plaintiffs' assertion that operation of the campground amounted to an ultra-hazardous activity because the FTCA does not waive sovereign immunity of the United States for claims based on strict liability. Plaintiffs concede this latter issue and, therefore, the United States' motion as to immunity for claims of strict liability is granted without further discussion. See Memorandum In Opposition, p.iv n. 4.

1. Discretionary function exception

The United States first contends that plaintiffs' claims against it are barred because of the discretionary function exception to the FTCA.⁴ For the reasons that follow the court agrees. The FTCA authorizes actions against the United States for damages caused by the negligence of government employees under circumstances where a private person would be liable under state law. 28 U.S.C. § 1346(b). However, sovereign immunity is not waived under the FTCA as to "[a]ny 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. § 2680(a). Thus, the determination of whether the discretionary function exception applies is independent of any considerations of negligence. Dalehite v. United States, 346 U.S. 15, 32, 73 S.Ct. 956, 966, 97 L.Ed. 1427 (1953).

A two-pronged test is used to determine whether the discretionary function exception applies. First, "[t]he exception covers only acts that are discretionary in nature, acts that `involv[e] an element of judgment or choice.'" United States v. Gaubert, 499 U.S. 315, 321, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988)). Second, if the conduct in question is the product of judgment or choice, the court must decide "`whether that judgment is of the kind that the discretionary function exception was designed to shield.'" i.e. decisions "`grounded in social, economic and political policy ...'" Id. at 322-323, 111...