Rosebush v. U.S.

• Decision Date: 16 July 1997
• Docket Number: No. 96-1357,96-1357
• Citation: 119 F.3d 438
• Parties: David ROSEBUSH, Valerie Rosebush, and David Rosebush, as Guardian Ad Litem for Natasha Rosebush, Plaintiffs-Appellants, v. UNITED STATES of America, United States Forest Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 438

119 F.3d 438

David ROSEBUSH, Valerie Rosebush, and David Rosebush, as Guardian Ad Litem for Natasha Rosebush, Plaintiffs-Appellants, v. UNITED STATES of America, United States Forest Service,

Defendants-Appellees.

No. 96-1357.

United States Court of Appeals, Sixth Circuit.

Submitted April 21, 1997.

Decided July 16, 1997.

Mark A. Wisti (briefed), Wisti & Jaaskelainen, Hancock, MI, for Plaintiffs-Appellants.

Steven B. Snyder (briefed), U.S. Department of Justice, Torts Branch Civil Division, Washington, DC, for Defendants-Appellees.

Before: MERRITT, RYAN, and HILL, ^* Circuit Judges.

HILL J., delivered the opinion of the court, in which RYAN, J., joined. MERRITT, J. (pp. 444-447), delivered a separate dissenting opinion.

OPINION

HILL, Circuit Judge.

Plaintiffs David and Valerie Rosebush brought this action against the United States and the United States Forest Service under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), claiming damages for injuries suffered by their sixteen-month old daughter when she fell into a fire pit at a government campground. The district court dismissed plaintiffs' complaint, holding that the federal government's operation and maintenance of the campground is a "discretionary function," for which it has not waived immunity under the Federal Tort Claims Act. This appeal followed.

I.

According to the complaint, ¹ David and Valerie Rosebush went camping with their sixteen-month old daughter Natasha at the Camp 7 Lake Recreation Campground in the Hiawatha National Forest in the Upper Peninsula of Michigan. Each campsite is provided with a fire ring and pit, consisting of a large steel ring in the ground surrounded by a ring of concrete.

On the morning of June 26, 1994, Mr. Rosebush was at the campsite to get his fishing poles when Natasha wandered to the pit and fell in. She was badly burned by the hot coals smoldering in the pit.

Plaintiffs brought this action against the United States and the United States Forest Service under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) alleging that the fire pit was an unreasonable hazard and that defendants were negligent in failing to place a grating over the fire pit and/or failing to place protective railings around the pit. Plaintiffs further claim that the Forest Service was negligent in assigning a campsite known to be unfit for occupancy because of the fire pit's dangerous condition. Finally, plaintiffs claim that the failure to warn of the dangers associated with the fire pit was a proximate cause of the third degree burns suffered by Natasha Rosebush.

The United States filed a motion to dismiss on two grounds: first, the action is barred because the management and maintenance of the campsite is a discretionary function, and discretionary functions are not actionable under the FTCA; and second, plaintiffs fail to state a claim upon which relief can be granted because the United States did not breach an actionable duty under Michigan law.

The district court dismissed plaintiffs' claims, holding that the action was barred by the discretionary function exception to the FTCA. We review the district court's application of the discretionary function exception and dismissal of this action de novo. ² United States v. Yannott, 42 F.3d 999, 1003 (6th Cir.1994) (citations omitted), cert. denied, 513 U.S. 1182, 115 S.Ct. 1172, 130 L.Ed.2d 1125 (1995).

II.

Congress has waived the sovereign immunity of the United States by giving district courts jurisdiction over certain tort actions against the United States. FTCA § 1346(b). Congress, however, excepted from this limited waiver "[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." FTCA § 2680(a). If a case falls within this statutory exception to FTCA § 1346(b), the court lacks subject matter jurisdiction. Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985).

In a series of cases, the Supreme Court has articulated and refined a two-part test to be applied in determining whether a particular claim falls under this discretionary function exception to the waiver of sovereign immunity. See United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The first part of the test requires a determination of whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment or choice. Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273-74; see also Graves v. United States, 872 F.2d 133, 137 (6th Cir.1989). If so, the discretionary function exception does not apply because there was no element of judgment or choice in the complained of conduct. Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273. "The requirement of judgment or choice is not satisfied if a 'federal statute, regulation or policy specifically prescribes a course of action for an employee to follow,' because 'the employee had no rightful option but to adhere to the directive.' " Id. (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59).

If the challenged conduct is determined to be discretionary, the second part of the Gaubert test looks to see whether the conduct is "of the kind that the discretionary function exception was designed to shield." Id. at 322-23, 111 S.Ct. at 1273. In enacting FTCA § 2680(a), "Congress wished to prevent judicial 'second guessing' of legislative and administrative decisions grounded in social, economic, and political policy." Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2765; Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1958-59. Thus, where there is room for policy judgment and decision, there is discretion of the sort protected by Section 2680(a). Dalehite, 346 U.S. at 36, 73 S.Ct. at 968.

III.

In deciding whether the complained of conduct was grounded in judgment or choice, the crucial first step is to determine exactly what conduct is at issue. Autery v. United States, 992 F.2d 1523, 1527-28 (11th Cir.1993). Plaintiffs sub judice contend that the United States is liable because the Forest Service failed to make the fire pit safe for unsupervised toddlers, and to warn of the dangers of the fire pit. They also argue that the Forest Service failed to "eliminate[ ] safety hazards from recreation sites and immediately correct high priority hazards." They contend that the Forest Service was required to perform these functions based on the following two sections of the United States Forest Service Manual:

2332--Operation and Maintenance. Prepare and annually update an operation and maintenance plan for recreation sites. A separate plan may be prepared for a single site or group of sites or the plan may cover an entire range or district.

Give health and safety related items highest priority.

2332.1--Public Safety. To the extent practicable, eliminate safety hazards from recreation sites. To accomplish this, inspect each public recreation site annually before the beginning of the managed-use season. Maintain a record of the inspections and corrective actions taken with a copy of the operation and maintenance plan.

Immediately correct high-priority hazards that develop or are identified during the season or close the site.

Forest Service Manual, §§ 2332 and 2332.1 (1993) (FSM). ³

The government, on the other hand, contends that the relevant conduct of the Forest Service is the management and operation of the Camp 7 Lake Recreation Campground. The fire pit is "but a small part of a campground that was administered pursuant to a comprehensive manual, a safety handbook, and an operations plan." ⁴

Neither of these formulations is satisfactory. Plaintiffs' formulation of the issue collapses the discretionary function inquiry into a question of whether the Forest Service was negligent. Cf. Autery, 992 F.2d at 1527-28. Negligence, however, is irrelevant to our inquiry at this point. Id. It is the governing administrative policy, not the Forest Service's knowledge of danger, that determines whether certain conduct is mandatory for purposes of the discretionary function exception. Id. The FTCA expressly provides that the exception "applies to policy judgments, even to those constituting abuse of discretion." Dalehite, 346 U.S. at 33, 73 S.Ct. at 967 ("The exercise of discretion could not be abused without negligence or a wrongful act."). The government, however, has too broad a view of the conduct they describe as discretionary. The decision to have a campground is itself, of course, discretionary.

The relevant inquiry is whether the controlling statutes, regulations and administrative policies mandated that the Forest Service maintain its campsites and fire pits in any specific manner. See Autery, 992 F.2d at 1527. If not, the Forest Service's decisions as to the precise manner in which to do so would clearly fall within the discretionary function exemption to the government's tort liability. See Childers v. United States, 40 F.3d 973, 976 (9th Cir.1994), cert. denied, 514 U.S. 1095, 115 S.Ct. 1821, 131 L.Ed.2d 744 (1995)

None of the guidelines plaintiffs cite requires that a fire pit be maintained or designed in any particular way. There are no regulations that specify that families with children should not be assigned to campsites with fire pits. There are no regulations requiring the Forest Service to warn of the dangers of a fire pit, nor that classify the pit as a "high priority hazard" requiring correction.

On the contrary, Section 2332 requires only that the Forest Service...