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Kim v. United States

United States Court of Appeals, Ninth Circuit

October 10, 2019

Daniel Kim; Grace Kim; Hannah Kim, a minor through her guardian Grace Kim; Francis S. Lee; Vivian Lee, Plaintiffs-Appellants,
v.
United States of America, Defendant-Appellee.

          Argued and Submitted February 13, 2019

          Appeal from the United States District Court for the Eastern District of California No. 1:16-cv-01656-LJO-SKO Lawrence J. O'Neill, Chief District Judge, Presiding

          Martin N. Buchanan (argued), Law Office of Martin N. Buchanan APC, San Diego, California; Thomas V. Girardi and Kelly Winter, Girardi Keese, Los Angeles, California; for Plaintiff-Appellants.

          Philip A. Scarborough (argued), Assistant United States Attorney; McGregor Scott, United States Attorney; United States Attorney's Office, Sacramento, California; for Defendant-Appellee.

          Before: Mary M. Schroeder, Diarmuid F. O'Scannlain, and Johnnie B. Rawlinson, Circuit Judges.

         SUMMARY[*]

         Federal Tort Claims Act

         The panel affirmed the district court's dismissal of the plaintiffs' claim for fraudulent concealment, and reversed the dismissal of the negligence-based claims, in a Federal Tort Claims Act ("FTCA") suit against federal officials for their failure to prevent the deaths of two boys who were killed when a tree limb fell onto their tent in Yosemite National Park.

         The FTCA's discretionary function exception bars claims based upon the federal officials' "exercise or performance or the failure to exercise or perform a discretionary function or duty." 28 U.S.C. § 2680(a).

         The plaintiff families first argued that the district court erred in finding their negligence-based causes of action to be barred by the discretionary function exception to the FTCA. The panel held that regardless of whether the discretionary function exception might apply to some hypothetical decision not to inspect the campground, the panel had to decide whether Park officials were shielded from liability for their conduct in actually inspecting that area once they undertook to do so. The panel further held that once Park officials undertook to evaluate the danger of the trees in the campground, they were required to do so according to the technical criteria set forth in the Park's official policies. Yosemite Park Directive No. 25 set forth the Park's "Hazard Tree Management" program that specified how park officials were to evaluate the risk imposed by trees they inspected. An appendix to the directive detailed a Seven-Point system for rating tree dangers. The panel held that the officials in evaluating the tree under their Seven-Point system were not exempt from the scope of the FTCA.

         The government contended that the even if it knew or should have known about the danger posed by the tree, the plaintiffs' negligence-based claims were still barred because Park officials had significant discretion regarding what to do in response to that danger. The panel held that as with the Park's duty to take some action to abate a high-risk tree, fulfilling the Park's duty to inform visitors somehow about that risk did not involve considerations of public policy. Accordingly, the discretionary function exception to the FTCA did not bar the plaintiffs' claim that the government negligently failed to give Park visitors any warning about the tree.

         Plaintiffs argued that the district court erred in dismissing their claim that Park officials fraudulently concealed information about the dangers posed by the tree in "order to continue charging camping fees" to visitors. The district court found that this fraudulent concealment claim was barred by the FTCA's exception for claims "arising out of . . . misrepresentation [or] deceit." 28 U.S.C. § 2680(h). The panel held that the fraudulent concealment claim here was not one that involved misrepresentations only collaterally. The panel concluded that the district court did not err in dismissing the claim under the FTCA's misrepresentation exception.

         Judge Rawlinson concurred in part and dissented in part. Judge Rawlinson agreed with the majority that the district court properly dismissed the fraudulent concealment claim, but disagreed with the majority's conclusion that the district court erred in dismissing the negligence-based claims under the discretionary function exception to the FTCA. Judge Rawlinson wrote that the majority erred in concluding that the Hazard Tree Management program created a mandatory duty on the part of officials responsible for managing Yosemite National Park.

          OPINION

          O'SCANNLAIN, CIRCUIT JUDGE

         We must decide whether the Federal Tort Claims Act bars a suit against federal officials for their failure to prevent the deaths of two boys who were killed when a tree limb fell onto their tent in Yosemite National Park.

          I

         On August 14, 2015, Daniel and Grace Kim, their daughter Hannah, their teenaged son Dragon, and their son's friend Justin Lee were camping in Campsite 29 of the Upper Pines Campground in Yosemite National Park ("Yosemite" or the "Park"). Around 5:00 in the morning, a limb from a large oak tree overhanging the campsite broke and fell on the tent where the two boys were sleeping, killing them. The Kims and Justin Lee's parents (collectively, "the families") sued the United States under the Federal Tort Claims Act ("FTCA"), alleging that National Park Service ("NPS") officials were responsible for the accident.

         The families' original complaint raised two negligence-based causes of action: wrongful death and negligent infliction of emotional distress. The complaint alleged that NPS officials knew or should have known of the danger posed by the tree, but negligently failed to abate that danger and to warn campers about it. The United States successfully moved to dismiss the complaint under the FTCA's discretionary function exception, which bars tort claims against the United States that are "based upon the [government's] exercise or performance or the failure to exercise or perform a discretionary function or duty." 28 U.S.C. § 2680(a). After reviewing Yosemite's policies regarding tree maintenance, the district court found that decisions regarding "how to evaluate and respond to tree hazards" were subject to the discretion of Park officials. The court dismissed the complaint but "in an abundance of caution" granted the families leave to amend.

         The families filed an amended complaint that repeated the two original causes of action and added a third: that Park officials knew and fraudulently concealed information about the danger posed by the tree so that campers would continue to patronize the campground. The district court again dismissed the complaint. First, the court adopted its analysis from its previous order dismissing the original complaint and concluded that the two negligence-based causes of action remained barred by the discretionary function exception. Second, the court concluded that, although the new fraudulent-concealment claim was not barred by the discretionary function exception, it was barred by the FTCA's separate exception for "[a]ny claim arising out of . . . misrepresentation [or] deceit" by the government. 28 U.S.C. § 2680(h). The court did not afford the families an opportunity to amend the complaint a second time.

         The families timely appealed, and they argue that the district court erred in dismissing each of their causes of action.

         II

         The families first argue that the district court erred in finding their negligence-based causes of action to be barred by the discretionary function exception to the FTCA.

         The FTCA generally authorizes private parties to sue the United States for the tortious conduct of federal officials, but the discretionary function exception bars suit under the FTCA for "[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The point of the exception is to "prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy." Berkovitz v. United States, 486 U.S. 531, 536-37 (1988) (internal quotation marks omitted). The government bears the burden of showing that the exception applies. See Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008).

         We evaluate the exception in two steps. First, "we must determine whether the challenged actions involve an element of judgment or choice." Id. at 1129 (internal quotation marks omitted). If "a statute or policy direct[s] mandatory and specific action, the inquiry comes to an end because there can be no element of discretion when an employee has no rightful option but to adhere to the directive." Id. (internal quotation marks omitted). Second, if the actions do involve an element of judgment, we must determine "whether that judgment is of the kind that the discretionary function exception was designed to shield, namely, only governmental actions and decisions based on considerations of public policy." Id. (internal quotation marks omitted). The relevant choice must be susceptible to some consideration of "social, economic, [or] political policy." Chadd v. United States, 794 F.3d 1104, 1109 (9th Cir. 2015) (internal quotation marks omitted).

         The actions relevant to the families' claims are (1) Park officials' alleged failure to identify the danger presented by the tree that collapsed and (2) their alleged failure to abate and to provide warnings about such danger. The families urge that such actions are not subject to policy-based discretion of the sort covered by the exception.

         A

         The government contends, and the district court found, that the families' claims fail at the outset because the discretionary function exception bars any claim based upon Park officials' alleged failure to discover a specific tree hazard in the Park. The government asserts that Park officials maintain significant discretion over how best to inspect trees in Yosemite, and thus they cannot be held liable for failing to identify the danger posed by the tree in question.

         1

         The government first argues that Park officials exercised considerable discretion over even whether to inspect the tree in question for hazards. Applicable Park policies do not require any particular trees to be inspected but state only that surveys of trees should occur in developed areas of the Park "on a regular periodic basis." But we need not-and we do not-decide whether the government is right about the nature of its supposed discretion over which areas to inspect, because any such discretion is beside the point in this case. The government admits that in each of the two years prior to the accident the "the Upper Pines Campground was inspected and hundreds of hazard trees were identified and abated, [though] [t]hose inspections did not identify the subject tree as hazardous." Regardless of whether the discretionary function exception might apply to some hypothetical decision not to inspect the campground, here we must decide whether Park officials are shielded from liability for their conduct in actually inspecting that area once they undertook to do so. See Myers v. United States, 652 F.3d 1021, 1032-33 (9th Cir. 2011) (holding that once the choice to pursue a project is made the court "look[s] at the nature of the actions in conducting the . . . project, not the decision to undertake" it (emphasis added)).

         2

         The government next argues that, even when Park officials do inspect a tree, their determination of the extent of the hazard posed by such tree is ...


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