Policy Immunity Challenged in Hazardous Tree Deaths

By Kozlowski, James C. | Parks & Recreation, January 2020 | Go to article overview

Policy Immunity Challenged in Hazardous Tree Deaths


Kozlowski, James C., Parks & Recreation


In the case of Kim v. United States, 2019 U.S. App. LEXIS 30340 (9th Cir. 10/10/2019), the issue before the United States Court of Appeals for the Ninth Circuit was 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."

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. Around 5 a.m., 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' 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.

In the federal district court, the federal government successfully moved to dismiss the complaint under the FTCA's discretionary function exception. This law prohibits 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 federal district court found that decisions regarding "how to evaluate and respond to tree hazards" were subject to the discretion of park officials. Accordingly, the federal district court dismissed the complaint on the basis these negligence claims were "barred by the discretionary function exception." The families appealed.

Discretionary Function Exception

As cited by the federal appeals court, the FTCA discretionary function exception provides as follows:

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 "any 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).

As noted by the court: "The point of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic and political policy."

The federal appeals court would conduct a two-step evaluation in determining whether the FTCA discretionary function exception applied. In the first step, the court would determine whether "the challenged actions involve an element of judgment or choice." In so doing, the federal appeals court acknowledged discretionary function exception would not apply if "a statute or policy directs mandatory and specific action." As characterized by the court, "there can be no element of discretion when an employee has no rightful option but to adhere to the directive."

If the government's actions "do involve an element of judgment," the court would conduct the second step to 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." Further, the court noted: "The relevant choice must be susceptible to some consideration of social, economic or political policy."

Tree Hazard Inspection Discretion

In this case, the families claimed the following actions by the government were "not subject to policy-based discretion of the sort covered by the exception": (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. …

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