Oberson v. U.S. Dept. of Agric., Forest Service
| Decision Date | 20 March 2006 |
| Docket Number | No. 04-35268.,No. 04-35315.,04-35268.,04-35315. |
| Citation | 441 F.3d 703 |
| Parties | Lori OBERSON, Legal Guardian for Brian Musselman, an incapacitated person; Kimberlee Musselman, individually and as the Natural Mother of Devon Musselman, a minor, Plaintiffs-Appellees-Cross-Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, Defendant-Third-Party Plaintiff-Appellant-Cross-Appellee, and State of Montana, by and through the Department of Fish, Wildlife and Parks; West Yellowstone Chamber of Commerce, Defendants-Third-Party Plaintiffs, v. Jamie Louis Leinberger; Patrick B. Kalahar; Tim A. Johnson, Third-Party Defendants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Tom L. Lewis, Lewis, Slovak & Kovacich, Great Falls, MT, and Andrew D. Huppert, Petit, Hock & Huppert, Missoula, MT, for Plaintiffs/Appellants Lori Oberson, Legal Guardian for Brian Musselman, Kimberlee Musselman, individually and as Natural Mother of Devon Musselman, a minor.
Bernard F. Hubley, USHE-Office of the U.S. Attorney, Helena, MT, and H. Thomas Byron, III, U.S. Department of Justice, Civil Division/Appellate Staff, Washington, DC, for Defendant/Third-Party Plaintiff/Appellee United States Department of Agriculture, Forest Service.
Lucy T. France, Garlington, Lohn & Robinson, PLLP, Missoula, MT, for Defendant/Third-Party Plaintiff State of Montana, by and through the Department of Fish, Wildlife and Parks.
Gig A. Tollefsen, Berg, Lilly & Tollefsen, Bozeman, MT, for Defendant/Third-Party Plaintiff West Yellowstone Chamber of Commerce.
Jamie Louis Leinberger, Bay City, MI, for Third-Party Defendant Jamie Louis Leinberger.
Marshal L. Mickelson, Corette, Pohlman, Allen, Black & Carlson, Butte, MT, for Third Party Defendant Patrick B. Kalahar.
Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. CV-99-00048-DWM.
Before: RONALD M. GOULD and MARSHA S. BERZON, Circuit Judges, and WILLIAM W SCHWARZER,* Senior District Judge.
Pursuant to Rule 44(c) of the Montana Rules of Appellate Procedure, we respectfully request the Montana Supreme Court to exercise its discretion to adjudicate the following questions of Montana law:
1. Does the gross negligence standard of care in the snowmobile liability statute, MONT. CODE ANN. § 23-2-653 (1996), violate the Montana equal protection clause, MONT. CONST. art. II, § 4?
2. If the snowmobile liability statute's gross negligence standard is unconstitutional, does the recreational use statute's willful or wanton misconduct standard of care, MONT. CODE ANN. § 70-16-302(1) (1996), apply in its place?
3. If neither the snowmobile liability statute nor the recreational use statute provide an applicable standard of care, does the ordinary care standard, MONT. CODE ANN. § 27-1-701, apply?
The answers to the certified questions will be determinative of the appeal pending in our court in this action. We have found no controlling Montana appellate decisions, constitutional provisions, or statutes for these questions. We acknowledge that your Court may decide to reformulate the questions, and that our phrasing of the questions is not intended to restrict your Court's consideration of this request. Relevant facts concerning the certified questions are stated below. We would be grateful for any guidance your Court can give us, whether or not directly responsive to the questions as we have phrased them.
Brian Musselman (Musselman) was gravely injured in a snowmobile accident on a National Forest trail. Lori Oberson, his legal guardian, and others brought this action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, alleging that the United States Forest Service negligently failed to correct or warn of a dangerous condition on the Big Sky snowmobile trail where Musselman was injured. The United States filed a third-party complaint against Jamie Leinberger (Leinberger), Patrick Kalahar (Kalahar) and Tim Johnson (Johnson), alleging that their negligence caused Musselman's injuries. Default was taken against Johnson. Kalahar settled with plaintiffs and was dismissed before trial. Following a bench trial, the district court entered judgment for plaintiffs, awarding damages of $11,296,800 and apportioning liability 40% to the Forest Service, 50% to Leinberger and 10% to Musselman.1
The Forest Service appealed, citing as error the district court's refusal to apply the discretionary function exception of the FTCA and its finding of negligence. Plaintiffs cross-appealed from the district court's liability allocation of 50% to third-party defendants and its methodology for calculating life expectancy.2 We affirm the district court in all respects except that we leave for future resolution the determinative question of the appropriate standard of care pending the disposition of this request for certification.
On February 25, 1996, Musselman, an expert snowmobiler, joined friends to ride on snowmobile trails in Yellowstone National Park and Gallatin National Forest. After dark, Musselman and his friends rode to a restaurant some nine miles north of West Yellowstone, Montana. Musselman, joined by Kalahar, Johnson, and Leinberger, rode on the Big Sky Trail, a groomed snowmobile trail managed by the U.S. Forest Service. During the trip, Johnson and Kalahar were riding competitively at speeds up to 60 mph.
At the restaurant, Musselman and his friends joined a group of some twenty people to cook steaks, drink beer, and tell stories. Musselman and Kalahar each drank at least three beers, Johnson consumed three to four beers, and Leinberger consumed between four and eight beers. Upon leaving the restaurant around 10:00 p.m., Leinberger was heavily impaired by alcohol, Johnson and Kalahar were impaired to a lesser degree, and Musselman was not impaired and was fully able to operate his snowmobile.
Musselman and Johnson left the restaurant first, followed by Kalahar and Leinberger. No member of the group had previously traveled on the stretch of the Big Sky Trail immediately adjacent to the restaurant. The Forest Service had posted a speed limit of 45 mph on its Yellowstone-area trails, but was aware that snowmobilers regularly traveled this stretch of trail at speeds in excess of 60 mph. Musselman took off quickly from the restaurant and continued at a pace keeping him in front of the other riders. He was not exceeding 45 mph when he reached the accident site. Johnson, Kalahar, and Leinberger approached the accident site at approximately 50-55 mph.
The stretch of trail approaching the accident site is flat and smooth for roughly a quarter of a mile. It then drops suddenly down a steep hill, the site of the accident. There it loses seventeen feet of elevation over approximately eighty feet, an 11.5 degree pitch or 25% slope. Musselman was the first rider to come to the hill, negotiating it safely and landing his snowmobile under control slightly off the trail. Johnson was next over the hill, crashing his machine at the bottom. After Johnson's crash, Musselman got off his machine for reasons unknown, although the district court found that he was likely trying to help Johnson or warn the approaching riders of the drop. As Musselman stepped on the trail, Kalahar and Leinberger came flying over the hill side-by-side. One of the riders hit Musselman's head, causing catastrophic brain injuries. The injury left Musselman unable to swallow, speak, understand complex communication, and independently conduct activities of daily living. He currently resides in an adult care facility.
The court had difficulty reconstructing the scene immediately following the accident given the shambolic post-accident investigation.3 However, it found that Musselman was lying on the groomed portion of the trail between his and Leinberger's machine, with his head facing away from the hill. Leinberger's machine was still on the groomed trail with its front end, windshield, handlebars, tunnel area, skis, cowling, rear bench rest, and motor mounts damaged. Kalahar's machine suffered broken engine mounts, a damaged windshield, and bent handlebars. Johnson's machine had a damaged windshield, which he replaced the morning after the accident before the machine could be inspected.
There were no eyewitnesses to the accident. Leinberger testified that he did not believe he hit Musselman because he "didn't hit an object that was going to move." Kalahar testified that he was positive he did not hit Musselman. Physical evidence and attempts at reconstruction revealed only that a snowmobile track hit Musselman in the helmet while he was on the trail and that the impact came from the right to left side.
Plausible explanations can be given for either Leinberger or Kalahar hitting Musselman. Leinberger's machine tumbled after the crest of the hill either because he applied his brakes before becoming airborne or because he hit Musselman while airborne, forcing the nose of his snowmobile down. Alternatively, the line of travel for Kalahar's machine places it in line with Musselman's likely location at the moment of the accident. Additionally, Kalahar reported hitting the ground and bouncing, an account consistent with hitting Musselman and then hitting the ground.
Musselman's accident occurred at a sudden and steep drop on the Big Sky Trail. At the time of the accident, there were no signs warning of the hill or instructing riders to slow down. Numerous witnesses suggested at trial that it was unusual for such a drop not to be signed and that a trail of such abrupt steepness was rare.
The Forest Service has sole responsibility for identifying and correcting hazards on the Big Sky Trail. To identify hazards, the Forest Service engages in a...
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