Soldano v. U.S.

• Decision Date: 12 July 2006
• Docket Number: No. 03-17391.,03-17391.
• Citation: 453 F.3d 1140
• Parties: John A. SOLDANO, an individual; Denise Soldano, an individual, Plaintiffs-Appellants, v. UNITED STATES of America; United States Department of the Interior; National Park Service; Superintendant Yosemite National Park, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

453 F.3d 1140

John A. SOLDANO, an individual; Denise Soldano, an individual, Plaintiffs-Appellants, v. UNITED STATES of America; United States Department of the Interior; National Park Service; Superintendant Yosemite National Park, Defendants-Appellees.

No. 03-17391.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 2006.

Filed July 12, 2006.

Raymond E. Brown, Law Offices of Federico C. Sayre, Santa Ana, CA, for the plaintiffs-appellants.

Kristi C. Kapetan, Assistant United States Attorney, Fresno, CA, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, Magistrate Judge, Presiding. D.C. No. CV-01-05462-LJO.

Before: GOODWIN, B.FLETCHER and FISHER, Circuit Judges.

FISHER, Circuit Judge:

John Soldano and his wife, Denise, sued the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA"), for damages arising out of a serious motorcycle accident that occurred on a major road in Yosemite National Park. The district court granted summary judgment against the Soldanos, finding that their claims of governmental negligence failed for lack of evidence or were barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). We affirm in part, but reverse the district court's application of the discretionary function exception to the Soldanos' claim that the government failed to set a safe speed limit at the accident site.

FACTS¹

A. The Accident

On June 23, 1998, John Soldano was driving his new Harley-Davidson motorcycle west on the two-lane Big Oak Flat Road in Yosemite National Park, a road familiar to Soldano, who had driven it many times. Sitting behind him as his passenger was his wife, Denise. They were cruising between 30 and 35 m.p.h., consistent with the road's 35 m.p.h. speed limit.

As the Soldanos came around a bend in the road approaching the Cascade Creek Bridge, they were startled to find a van stopped in their lane. The van was waiting to turn left across the road's double, solid yellow lines to enter the Cascade Creek Bridge vista point adjacent to the road. John Soldano claims he attempted to brake, but had to veer into the eastbound lane and oncoming traffic when he realized he had insufficient room to stop before colliding with the van. As a result, the Soldanos crashed head-on into another van, and John Soldano suffered severe injuries rendering him a paraplegic. Soldano was also cited for improper crossing of double, solid yellow lines.

In a deposition, Soldano testified that the collision occurred about one minute after he exited the Big Oak Flat Road's second tunnel. He described the road as curving around a large, solid granite mountain on his right just before the location of the collision, and said that it was the granite mountain that obstructed his vision of the stopped van. He did not identify any road or hillside maintenance issues that contributed to the accident.

In April 2001, the Soldanos sued the United States under the FTCA. Their complaint alleged that the government, through the U.S. Department of the Interior, National Park Service and Superintendent of Yosemite National Park, caused or contributed to the collision by improper design of, and failure to maintain, the road and adjacent area. The Soldanos specifically alleged that the location of the collision "constituted a dangerous condition and concealed trap or hidden hazard causing [the Soldanos] to be surprised by stopped traffic." They faulted the government for the negligent placement of traffic signs, among other things, and alleged that the dangerous condition of the roadway was the proximate cause of their injuries. They sought damages for past and future medical expenses, lost earnings and earning capacity, emotional distress and loss of consortium. After a hearing, the district court granted the government's motion for summary judgment, finding that a lack of evidence or the discretionary function exception to the FTCA barred all of the Soldanos' claims.

B. The Road and Park Policies

The Big Oak Flat Road ("Road") is a two-lane road with 11-foot wide lanes and a northwest to southeast orientation. It is one of the principal routes for traffic in and out of the park and is heavily traveled during the summer tourist season. The segment of the Road where the accident occurred includes three tunnels, three bridges and the Cascade Creek Bridge vista point. Eight other pullouts punctuate the Road, which was constructed between 1937 and 1940 and has been neither redesigned nor reconstructed since its creation.

The Road is a part of the national park system of roads. In 1968, the National Park Service created the Park Road Standards ("Standards") to establish policies for the design and construction of the nation's park roads. In 1984, it prepared new standards to be applied "as existing roads are reconstructed or when new roads are constructed." The 1984 Standards state that "[i]n most parks, a road system is already in place, having been constructed in accordance with the National Park Service Policies." The Standards "are intended to be applied uniformly to both new construction and reconstruction of park roads on a Servicewide basis to the extent practicable, based on projections of actual, or planned and controlled use," and they acknowledge that "[o]n rehabilitation, restoration and resurfacing (3-R) projects, the standards applicable to new construction and reconstruction will in some instances not be attainable." Finally, the 1984 Standards set forth the purpose of national park roads:

[P]ark roads are designed with extreme care and sensitivity with respect to the terrain and environment through which they pass—they are laid lightly onto the land.

Each segment of every park road should relate to the resource it traverses in a meaningful way and should constitute an enjoyable and informative experience in itself while providing the visitor the utmost in visual experience. . . . A park road should be fundamentally designed to maintain an overall continuing sense of intimacy with the countryside or area through which it passes.

The purpose of park roads remains in sharp contrast to that of the Federal and State highway systems. Park roads are not intended to provide fast and convenient transportation; they are intended to enhance visitor experience while providing safe and efficient accommodation of park visitors and to serve essential management access needs.

The placement and use of signs in Yosemite is similarly governed by Park Service policies, in particular those set forth in the National Park Service Sign Manual ("Sign Manual"). The Sign Manual delineates a number of factors that park managers are to consider in determining where to place signs. Managers should weigh such potentially competing ends as minimal intrusion, avoidance of unnecessary proliferation of signs and the safety of visitors in deciding whether to use a particular sign at a particular location.

The Yosemite National Park Superintendent, Michael J. Tollefson, has averred that the Park Service's overall road policy decisions made pursuant to the Standards involve balancing preservation of natural resources, visitor enjoyment and safety and the Park Service's limited financial and human resources. The Superintendent has further stated that balancing such considerations requires the exercise of discretion, and that decisions on the Road's design and construction, including the placement of scenic vistas and signs on it, are not governed by mandatory statutes, regulations or policies, but rather by noncompulsory policies as set forth in the 1984 Standards and the Sign Manual.

STANDARD OF REVIEW

We review the district court's summary judgment de novo. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). "We must determine, viewing the evidence in the light most favorable to . . . the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004).

DISCUSSION

This appeal turns on the resolution of two questions: (1) whether the district court properly rejected the Soldanos' claim that the Road was negligently maintained, as not supported by admissible evidence; and (2) whether the court erred in determining that the discretionary function exception shields the government from liability for the rest of the Soldanos' claims.

A. Negligent Maintenance

The Soldanos claim that the government's failure properly to maintain the site of the accident was a proximate cause of their injuries. More specifically, they contend that overgrowth along the road at the site of the accident made the Road's 35 m.p.h. speed limit too high, in violation of minimum specifications set forth in the Standards. In support of their claim, the Soldanos' expert witness, Ronald M. Shields, a traffic engineer, stated:

The nearly vertical upward sideslope for the westerly road direction significantly reduces the available sight distance . . . to 180 feet based on the CalTrans highway design charts. Actual sight distance observed [in 2002] at the westbound curve approaching the Cascade Creek Bridge was 135 feet as a result of vegetation blocking the line of sight. Pursuant to the 1984 edition of Park Road Standards, the reduction of sight distance caused by the vegetation would place the maximum allowable design speed below 25 miles per hour. . . .

If the design speed (and corresponding speed limit) had been reduced and the vegetation had been maintained to increase the stopping sight distance, John Soldano would have had sufficient time to stop before reaching the rear of the stopped van and would not have been required to swerve into the oncoming lane of traffic.

Shields' report is the only evidence the Soldanos presented concerning the state of vegetation and its...