Oberson v. U.S., No. CV 99-48-BU-DWM.

Decision Date23 January 2004
Docket NumberNo. CV-99-55-BU-DWM.,No. CV 99-48-BU-DWM.
Citation311 F.Supp.2d 917
PartiesLori OBERSON, Legal Guardian for Brian Musselman, an incapacitated person, and Kimberlee Musselman, Individually and as Natural Mother of Devon Musselman, a minor, Plaintiffs, v. UNITED STATES of America; acting through the U.S. Department of Agriculture, Forest Service, and Does A-Z, inclusive, Defendant. and United States of America, Third-Party Plaintiff, v. Jamie Louis Leinberger; Patrick B. Kalahar; and Tim A. Johnson, Third-Party Defendants. Lori Oberson, Legal Guardian for Brian Musselman, an incapacitated person, and Kimberlee Musselman Individually and as Natural Mother of Devon Musselman, a minor, Plaintiffs, v. State of Montana, by and through the Department of Fish, Wildlife, and Parks; West Yellowstone Chamber of Commerce, Does A-Z, inclusive, Defendants, and State of Montana, Plaintiff, v. United States of America, Third-Party Defendant.
CourtU.S. District Court — District of Montana

Tom L. Lewis, J. David Slovak, Lewis, Huppert & Slovak, Great Falls, MT, Andrew D. Huppert, Attorney at Law, Missoula, MT, for plaintiffs.

Bernard F. Hubley, Deanne Sandholm, Office of the U.S. Attorney, Helena, MT, William Evan Jones, Lucy T. France, Garlington, Lohn & Robinson, PLLP, Missoula, MT, Gig A. Tollefsen, Berg, Lilly & Tollefsen, Bozeman, MT, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MOLLOY, Chief Judge.

I. INTRODUCTION

On February 25, 1996, 35-year-old Brian Musselman was involved in a snowmobile accident on a snowmobile trail north of West Yellowstone, Montana, which caused him catastrophic brain injuries. Musselman was an expert snowmobiler who had been inducted into the Michigan Snowmobile Hall of Fame. His entire life was involved with snowmobiles. In addition to racing, he was an executive of a family-owned business that designed, developed and manufactured parts and devices for production snowmobiles as well as racing snowmobiles. He was earning nearly $350,000 a year. As a result of this devastating accident, he went from being a robust, energetic business executive and expert snowmobile racer to being a helpless human form, unable to care for himself in any manner, confined to feeble grunting and interminable days of expensive medical care and treatment.

Lori Oberson, legal guardian of Brian, and Kimberlee Musselman, natural mother of Brian's daughter Devon Musselman, brought this suit against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. alleging negligence on the part of the United States for failing to correct or warn of an allegedly dangerous trail condition on the groomed snowmobile trail where Musselman was injured. The United States filed a third-party complaint against Jamie Louis Leinberger, Patrick B. Kalahar, and Tim A. Johnson alleging that their negligence caused Musselman's injuries. Default was taken as to Tim Johnson. Patrick Kalahar settled with the Plaintiffs prior to trial and was dismissed by this Court.

A bench trial was held January 7-15, 2002. After considering the evidence and testimony submitted at trial, along with the parties' arguments and proposed findings of fact and conclusions of law, I find the following parties negligent: Brian Musselman, 10%; Jamie Leinberger, 50%; U.S. Forest Service, 40%. I find that Brian Musselman was damaged in the amount of $11,296,800 and that Devon Musselman was damaged in the amount of $600,000. Consequently, Brian Musselman's damages are reduced by $1,129,680, leaving damages caused by others in the amount of $10,167,120. Of that amount, the Forest Service is obligated to pay Musselman $4,518,720, while Leinberger is obligated to pay him $5,648,400. Furthermore, under Montana law the Forest Service is obligated to pay $266,666.67 of damages to Devon Musselman, and Leinberger is obligated to pay her $333,333.33.

My decision is based on the following Findings of Fact and Conclusions of Law.

II. FINDINGS OF FACT

1. Brian Musselman, a resident of Michigan, was born on March 13, 1961. He was married to Kimberlee Musselman (Beam) and is the father of their daughter, Devon Musselman, who was five years old at the time of the accident. Devon was born on November 7, 1990.

2. Musselman was an expert snowmobiler, and was inducted into the Michigan Snowmobile Racing Hall of Fame in 1998. Vol. IV 214:7, 217:1-5, 220:16-17.

3. Patrick Kalahar, Jamie Leinberger and Tim Johnson are also residents of Michigan, and were with Musselman at the time of the accident. All three were accomplished snowmobilers. Vol. I 42:17-24, 115:22-25. Leinberger Depo 7:6-16.

4. On Friday, February 23, 1996, Musselman and Kimberlee traveled with a group of friends from their home in Michigan to West Yellowstone, Montana, to snowmobile in the surrounding area.

5. On Saturday, February 24, 1996, the group rented snowmobiles from Westgate Station in West Yellowstone, Montana. Vol. I 118:1-4. The group then split up into smaller groups, with most members snowmobiling in Yellowstone National Park. There is no evidence that any of the group members rode the Big Sky Trail or the accident site on Saturday the 24th.

6. On Sunday, February 25, 1996, the riders again separated into small groups and rode both in the Park and in the Gallatin National Forest. Vol. IV 148:3-24; Vol. I 44:7-20, 119:24-120:20. They did not ride the Big Sky Trail during the day on February 25, 1996. Vol. I 44:7-20, 119:24-120:20, 121:5-7.

7. After returning to West Yellowstone, Brian and Kim Musselman shopped for about an hour, after which they came back to the hotel and sat in the hot tub. Vol. IV 148:22-149:16. Musselman drank one or two beers, after which he returned to his room and took a nap. Vol. IV 149:17-150:1. After waking, he drank a Diet Coke. Vol. IV 150:2-6.

8. The group gathered later in the evening to travel to Eino's, a restaurant approximately 8 1/2 miles north of West Yellowstone. The men rode their snowmobiles to Eino's, while the women took a shuttle. Vol. IV 150:7-12. It was dark when the snowmobilers left West Yellowstone for Eino's. Vol. I 122:12-22.

9. Musselman, Johnson and Kalahar rode together to Eino's via a groomed snowmobile trail managed by the U.S. Forest Service, the Big Sky Trail. Vol. I 47:23-51:21. The trail crosses Cougar Creek just south of the accident site. This crossing forced the snowmobilers to ride their machines onto the highway shoulder at this point. Musselman, Kalahar and Johnson stayed on the shoulder of the highway for the short distance remaining to Eino's and completely bypassed the accident site. Vol. I 48:8-18, 49:20-50:3, 51:11-52:2. Musselman, Johnson & Kalahar were riding competitively on the way to Eino's, at speeds in the low 50s to upper 60s. Vol. I 73:1-75:15, 76:11-12, 77:7.

10. At Eino's, the three men joined their group, which numbered about 20. They cooked steaks, drank beer, and told stories. Vol. I 53:20-54:20.

11. At about 10:00 p.m., the group left Eino's. Musselman and Johnson were the first to leave on their machines, followed by Kalahar and Leinberger, among others. Vol. I 56:24-57:22. They left Eino's, crossed Highway 191, entered the Big Sky Trail and proceeded southbound toward West Yellowstone, Montana. Vol. I 157:25-158:9. No one in the party had ever traveled this portion of the trail between Eino's and Cougar Creek.

12. Leaving Eino's, riders cross the highway, then come to a stop before climbing the highway cut to get to the trail system. They then turn and ride between a fence and the highway to where Duck Creek crosses the trail. Riders then get up on the highway, stop, cross the road culvert and drop back down. They then climb up a plowed road with another stop sign, cross the plowed road, and follow the trail, which is flat, smooth, and essentially parallel to the highway, for about a quarter of a mile until they get to the accident site. Vol. I 215:21-217:17; Vol. III(ML), 797:13-798:9; Ex. 1004.

13. According to Johnson, he and Musselman took off, and then Musselman "sped away," and Johnson lost sight of him. Vol. I 131:1-5. Johnson testified that his machine accelerated more slowly than Musselman's, and that he "backed off" his speed initially because his visibility was reduced by the snowdust from Musselman's machine. Vol. I 131:7-132:12. Johnson then resumed his speed. Vol. I 131:22-24. Although he does not recall his exact speed, he testified that the 440 Polaris he was riding was capable of going in the mid-50s. Vol. I 118:5-12. He also testified credibly that he was in control of his snowmobile. Vol. I 139:13-20.

14. The accident occurred about 1 3/4 miles south of Eino's. Ex. 1004(map). Johnson testified that he did not slow down as he approached the hill because he didn't know it was there. Vol. I 139:9-12. He testified that he was "going along and all of a sudden, like I say, the bottom dropped out and I remember going through the air. I hit the ground pretty hard; it knocked the wind out of me. And I coasted up the trail through some thicket there and ended up next to the highway." Vol. I 135:15-19.

15. Forest Service law enforcement officers were notified of the accident at 10:30 p.m. Vol. II 454:12-455:4.

16. The Big Sky Trail is a heavily trafficked snowmobile trail that is the primary route by which snowmobilers ride to West Yellowstone from the north. The hill where Musselman was injured is about eight miles north of West Yellowstone, just north of Cougar Creek. The trail runs parallel to Highway 191, just east of the road. The road is visible from the trail.

17. The West Yellowstone trail system is "very well-signed." Vol. II 287:16. The trails are signed with stop signs, "stop ahead" signs, and speed limit signs, as well as signs warning of hazards identified by the Forest Service in its "war...

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