Weingarten v . USA CV-97-494-B 02/10/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Leonard B . Weingarten, Individually and as Administrator of the Estate of Cheryl Barrie Weingarten, _____ Plaintiff

v. Civil No. 97-393-B

United States of America, _____ Defendant

O R D E R

Plaintiff Leonard Weingarten ("Plaintiff") brings this

action under the Federal Tort Claims Act,

(West Supp. 1998), claiming that the United States ("Defendant")

caused the death of his daughter. Defendant has moved to dismiss

pursuant to Fed. R. Civ. P. 12(b)(1) or, in the alternative, for

summary judgment pursuant to Fed. R. Civ. P. 56, for lack of

subject matter jurisdiction. Forthe reasons set forth below, I

find that this court does not havesubject matter jurisdiction

over Plaintiff's claims and, accordingly, I grant Defendant's

motion to dismiss. FACTS

Cheryl Barrie Weingarten ("Cheryl") died after falling into

a crevasse on Tuckerman Ravine ("the Ravine " ) , a popular skiing

and hiking spot on Mount Washington.1 Mount Washington is the

highest peak in the northeastern United States, located in the

White Mountain National Forest ("the Forest") in the State of New

Hampshire. The United States Forest Service and its Snow Rangers

manage the Ravine as part of the Forest's Pinkham Notch Scenic

Area. The Forest Service manages the Ravine in accordance with

the Forest Service Manual, which was issued pursuant to federal

regulations. See, e.g.

(1998). The Manual

incorporates by reference the Forest Service Handbooks, which set

forth guidance and instructions for carrying out the Service's

various policies with respect to the Forest.

The Ravine is a large, semicircular, natural basin set

within the mountain. The Ravine walls reach an altitude of 5,100

1 The Ravine attracts between 2,000 and 4,000 visitors on nice spring weekend days, as the deep snow pack allows skiing well into May. See Def.'s Ex. A, Declaration of Bradley Ray at 554, 5. The Forest Service estimated that 3,900 people used the Ravine on April 30, 1994, the day before Cheryl's death. See i d . at 55.

-2- feet, with steep slopes ranging from 35 to 55 degrees. The area

is undeveloped and has no ski lift facilities. Thus, skiers must

hike approximately three hours from Pinkham Notch to the top of

the Ravine, carrying their eguipment, and ski back down. Some

skiers elect to hike only part-way up, remaining in the Bowl area

of the Ravine below the steep Headwall.

In the early spring, the main dangers associated with hiking

and skiing the Ravine are undermined snow and open crevasses.2

The crevasse into which Cheryl fell is known as the Cutler River

waterfall crevasse, which opens up every spring. The river runs

all year long, despite sometimes being covered by up to 80 feet

of snow. The river runs through the Ravine and over the

Headwall. The crevasse forms under the waterfall and, like other

crevasses which open up in the Ravine, can reach depths of over

75 feet.

Cheryl was 21 years old at the time of her death. She was

scheduled to graduate from Tufts University two weeks later.

Cheryl and three friends -- Anna Shapiro, Julie Parsons, and

Nicholas Nardi -- drove from school to the mountain on May 1,

2 Undermined snow has melted snow or water underneath it, which can cause the snow to collapse beneath a person. 1994.3 Shapiro planned to ski while Cheryl and the others hiked.

Shapiro had skied the Ravine on previous occasions, while Nardi

had hiked it once. Cheryl had neither skied nor hiked the Ravine

prior to May 1, 1994.

Cheryl and her friends drove to the Pinkham Notch Visitors

Center, where they changed clothes. While there, they may have

checked the weather conditions posted inside. The weather called

for rain tapering into scattered showers, with temperatures in

the 40s and obscured summits. The Visitors Center provides

informational notices and brochures, at least two of which

explicitly warn of the dangers of open crevasses during the

spring months.

The Forest Service also posts an Avalanche Bulletin at the

Visitors Center, but neither Nardi nor Shapiro recalled seeing

one there. Nor did they recall seeing the bulletin posted at the

Appalachian Mountain Club caretakers hut at the Hermit Lake

Shelters, about 2.4 miles from the Visitors Center.4 The

3 Tufts University is located just outside of Boston, Massachusetts, approximately 150 miles from Tuckerman Ravine.

4 The evidence is unclear as to which Avalanche Bulletin was posted at the time of Cheryl's visit. A bulletin dated April 28, 1994, did not warn of open crevasses. A subseguent bulletin, dated 2:30 p.m. on May 1, 1994, did note that crevasses may open up, but does not specifically note the Cutler River waterfall crevasse or its location. Viewing the evidence in the light most

-4- Avalanche Bulletin warns of open crevasses once the Forest

Service becomes aware of their existence. The group continued on

and then split up at Lunch Rocks, a group of boulders below the

Headwall, between 1 and 2 p.m., with Shapiro skiing and Cheryl

and the others continuing to hike. While still in the Ravine,

the weather conditions worsened. Despite clouds and fog, making

it impossible to see more than 100 feet ahead, the trio continued

to the summit of M t . Washington.

While descending, Cheryl and Parsons began sliding down the

Ravine on their rear-ends. Nardi continued on foot because he

knew there was a steep drop-off and, since he couldn't see where

he was going, he "didn't want to go there fast." Def.'s Ex. D,

D e p . of Nicholas Nardi at 60. He lost sight of the two women,

and then heard Parsons screaming. Nardi was able to locate

Parsons, who was on the edge of a steep drop-off. He helped

Parsons climb to safety, but they were unable to locate Cheryl.

They hiked back to Hermit Lake, where they reported Cheryl

favorable to Plaintiff, I will assume without deciding that, had Cheryl read the Bulletin, it would have been the April 28 version with no mention of the crevasse danger.

-5- missing.

The Snow Rangers began a search-and-rescue mission, and

located slide marks going over the Headwall above the Cutler

River waterfall crevasse. Because of the heavy water flow and

rain, the Rangers decided it was too dangerous to descend into

the crevasse that night. Cheryl's body was recovered the

following morning.

The Forest Service did not erect any barriers or otherwise

mark the crevasse's location in the Ravine. The Forest Service

previously considered options, such as erecting a fence or

placing cross-poles above the Headwall over the crevasse, but

ultimately rejected them. Lead Snow Ranger Bradley Ray stated

that such ideas were rejected based on the Forest Service's

policy of maintaining the Ravine in its natural state, as well as

safety and feasibility concerns involved with erecting and

maintaining such barriers. See Def.'s Ex. A, Declaration of

Bradley Ray at 55 27-36.

Plaintiff is pursuing three claims against Defendant

pursuant to the Federal Tort Claims Act ("the A c t " ) . First,

Plaintiff argues that Defendant negligently caused Cheryl's death

by failing to warn her of the crevasse. Second, Plaintiff

alleges that Defendant intentionally caused Cheryl's death by

-6- "willfully and/or maliciously" failing to guard against or warn

her of the crevasse. Finally, Plaintiff brings a claim for the

loss of society, services, and comfort of his daughter.

Defendant argues that I have no jurisdiction to hear

Plaintiff's claims. First, Defendant argues that Plaintiff's

claims are barred by the Act's "discretionary function

exception." Second, Defendant argues that Plaintiff's claims do

not fall within the Act's grant of subject matter jurisdiction

because New Hampshire's recreational use statutes would bar

liability had Cheryl died under similar circumstances on

privately-owned property. Finally, Defendant argues that New

Hampshire law does not recognize Plaintiff's claim for the loss

of society, services, and comfort of his daughter. Because I

find that this court lacks subject matter jurisdiction over

Plaintiff's claims by virtue of the Act's discretionary function

exception, I do not need to address Defendant's remaining

arguments. See Magee v. United States of America,

(1st Cir. 1997)(district court must first determine whether

exception precludes claim and then, if not, whether a private

actor would be liable under the circumstances). STANDARD

The party seeking to invoke the court's jurisdiction bears

the burden of establishing that jurisdiction exists. See Aversa

v . U.S.,

(1st Cir. 1996) . I must construe

Plaintiff's complaint liberally and treat all well-pleaded facts

as true, viewing them in the light most favorable to the

Plaintiff. See Murphy v . U.S.,

(1st Cir.

1995)(noting similar standard applies to motions to dismiss under

both Fed. R. Civ. P. 12(b)(1) and 12(b)(6)). A Plaintiff's

unsupported conclusions or interpretations of law, however, are

insufficient to defeat a motion to dismiss. See i d . I may

consider matters outside the pleadings without converting a

12(b)(1) motion to dismiss into a motion for summary judgment.

See Aversa,

. I apply these standards to the

issues raised by the parties in this action.

DISCUSSION

The United States government cannot be sued without its

consent. See Murphy,

(citing United States v.

Palm,

(1990)). The Federal Tort Claims Act,

however, acts as a broad waiver of the government's sovereign

immunity, granting federal courts jurisdiction to hear certain claims against the United States. See Attallah v. U.S.,

(1st Cir. 1992). Under the Act, I have jurisdiction to

hear claims brought against the United States for damages

caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

(b)(1). The government's waiver of immunity is

limited, however, by the Act's exceptions. See

6 8 0 (a)-(n). Relevant here is the Act's so-called "discretionary

function exception," which operates to deprive this court of

jurisdiction over claims arising out of "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."

(a). Thus, if the discretionary

function exception precludes Plaintiff's claims I must grant

Defendant's motion to dismiss for lack of subject matter

jurisdiction. See Magee,

; Attallah,

.

The discretionary function exception encompasses a two-step

inguiry. See United States v. Gaubert,

(1991); Shanskv v. United States of America, ___ F.3d , 1999

-9- WL 2476 at *1 (1st Cir. 1999); Magee,

. First, I

must determine whether the government's conduct was, by its

nature, discretionary. See Shanskv, ___ F.3d ,

(citing Gaubert,

). If so, I must

consider whether the government's discretionary action was

susceptible to policy-related judgments. See i d . Here, the

relevant conduct is the Defendant's alleged failure to warn of or

guard against the dangers of the Cutler River waterfall crevasse

at Tuckerman Ravine.

1. Was the government's conduct discretionary?

Discretionary actions involve judgment and choice. See

Gaubert,

; Magee,

. An action

involves judgment and choice and is, therefore, discretionary,

where the actor is not bound to follow a particular procedure.

See Gaubert,

(daily management of banking

affairs); Shanskv, ___ F.3d ___ ,

(Park Service

not bound to follow particular safety measures in redesign of

historic trading post); Magee,

(VA drivers

licensing program did not reguire psychologists to follow

particular course of conduct). An action does not involve

judgment or choice, however, where a statute, regulation, or

-10- policy "specifically prescribes a course of action . . . to

follow, because [there is] no rightful option but to adhere to

the directive." Gaubert,

(quoting Berkovitz v.

United States,

(1988)).

Here, Plaintiff's argument is two-fold. First, Plaintiff

argues that the discretionary function exception is inapplicable

because no governmental directive or regulation specifically bans

or requires posted warning signs in the Forest. Second,

Plaintiff argues that Defendant violated Forest Service safety

regulations by failing to warn of or guard against the crevasse.

As to the first point, it is clear that Plaintiff

misapprehends the discretionary function analysis. Contrary to

Plaintiff's assertion, the absence of a regulation mandating

specific conduct on the part of the Forest Service is not fatal

to Defendant's discretionary function argument. See Gaubert,

. Rather, that fact serves only to bolster

Defendant's argument that the discretionary function exception

bars Plaintiff's claims. See Shanskv, ___ F.3d ,

; Magee,

. In the absence of a regulation

mandating specific conduct, the Forest Service must exercise

choice or judgment and, thus, discretion, in carrying out its

duties. See i d . Plaintiff himself quotes Lead Snow Ranger

-11- Bradley Ray, who stated:

[N]othing in the statutes, regulations or Forest Service policies dictate particular actions that I must follow in the handling of hazards, warning the public of those hazards, or managing public safety issues in the Ravine. . . . Nothing in the Trail Management Handbook mandates specific actions that I, or any other Forest Service official, was reguired to take in the handling of a safety hazard such as the waterfall crevasse.

See Def.'s Ex. A, Declaration of Bradley Ray at 5510, 13. Snow

Ranger Ray's statements support, rather than undermine, a finding

that the Defendant's actions were, in fact, discretionary. See

Shanskv, ___ F.3d ,

.

Plaintiff fares no better by pointing to the Forest Service

regulations. Plaintiff primarily relies on Forest Service Manual

Chapter 2330 to support his argument that the Defendant violated

its own public safety regulations. Chapter 2330, however, does

not apply to the management of Tuckerman Ravine.5 The

5 Forest Service Manual Chapter 2330 applies to "developed recreation areas," while Chapter 2350 applies to "dispersed recreation areas" as those terms are defined in the White Mountain National Forest Plan. See Def.'s Ex. K, Declaration of George R. Pozzuto at 55 6-10; Def.'s Ex. A., Declaration of Bradley Ray at 512. Tuckerman Ravine is a "dispersed recreation area." See Def.'s Ex. K at 55 7,9-10. Even assuming that Chapter 2330 does apply to the management of Tuckerman Ravine, Plaintiff cannot demonstrate that Chapter 2330 mandates specific procedures or conduct. Like Chapter 2350 and the incorporated Handbooks, Chapter 2330 clearly allows for judgment, choice, and discretion on the part of Forest Service employees. See, e.g. Kelly v. United States of America,

(1st Cir.

-12- regulations which do apply to the management of Tuckerman Ravine

further support a finding that Defendant's actions were

discretionary in nature. See Forest Service Manual Chapter 2350;

Forest Service Trail Management Handbook; Forest Service Sign

Handbook; Standards for Forest Service Signs and Posters. The

Manual and incorporated handbooks do not mandate particular

procedures or courses of action. Rather, they set forth general

guidelines to follow in carrying out the agency's goals. For

example. Plaintiff cites the Standards for Forest Service Signs

and Posters, which is incorporated into the Forest Service

Manual, and which directs the Forest Service to:

Provide appropriate user information/education services at trailheads through well designed and located bulletin board displays. Limit posters and other materials to only those essential for user safety and pertinent to the trail or area. Bulletin board information needs vary according to trail use. The following list is not all-inclusive, but includes some information items applicable to all trails. Some are appropriate only to specific types of trails. Consider: (1) Safety information such as: Current trail conditions. Nearest telephone. Hazards. Survival tips. . . .

Standards for Forest Service Signs and Posters at 5.4.6d, On-Site

User Information. The language of 5.4.6d clearly contemplates

that Forest Service employees use choice, judgment, and

1991)

-13- discretion. Other portions of the Manual similarly contemplate

the use of discretion. The Manual is a "mixed bag, interweaving

imperatives with weaker, precatory verbs and generalities more

characteristic of discretion than of mandatory directives."

Kelly v. United States of America,

(1st Cir.

1991)(finding DEA department manual gave employees discretion

despite "mandatory" words like "will" and "must"). Thus, I find

that the Forest Service's decision not to barricade the crevasse

or post more explicit warnings about the crevasse was a

discretionary action for purposes of § 2 6 8 0 (a).6

6 Plaintiff also argues that the Defendant's decision to warn of or guard against some dangerous conditions in the Forest, but not the crevasse in guestion, removes that decision from the protection of §2680 (a) . Plaintiff claims that, by warning of some dangers but not others. Defendant induced Cheryl's reliance on the warnings to her detriment. This argument has no merit. First, to the extent that Plaintiff is arguing that the Forest Service was negligent in carrying out its duties, it is well settled that §26 8 0 (a) shields the government from liability for its discretionary acts even when those acts are carried out negligently. See Gaubert,

(citing United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),

(1984)); Brown v. United States of America, 7

, 203 (1st Cir. 1986). Furthermore, where the government undertakes an action to protect public safety, the public has no right to expect a level of complete care. See Brown, 790 F.2d at 203-4. To hold otherwise would "make the discretionary exception self-destructive." I d . at 203.

-14- 2. Was the government's conduct susceptible to policy-related iudgments ?

The discretionary function exception shields only those

governmental actions which are based on considerations of public

policy. See Gaubert,

; Magee,

. The

law presumes that the exercise of official discretion implicates

policy judgments. See Shanskv, ___ F.3d ,

(citing Gaubert,

). "[T]he very existence of the

regulation creates a strong presumption that a discretionary act

authorized by the regulations involves consideration of the same

policies which led to the promulgation of the regulations."

Gaubert,

. Thus, Plaintiff must demonstrate that

the Defendant's decision not to warn or guard against the

crevasse was not susceptible to policy analysis. See i d . I must

focus "not on the agent's subjective intent in exercising the

discretion conferred by statute or regulation, but on the nature

of the actions taken and on whether they are susceptible to

policy analysis." Gaubert,

.

Plaintiff claims that Defendant chose not to post warnings

or barricade the waterfall crevasse for purely "aesthetic

reasons." That rationale. Plaintiff argues, is not in

furtherance of any Forest Service policy and, thus, is not

"susceptible to policy analysis." Plaintiff is incorrect.

-15- Aesthetic considerations are legitimate policy concerns.

See Shanskv, ___ F.3d ,

T *4. Furthermore,

aesthetic considerations -- such as preserving the Forest in its

natural condition -- are clearly within the policy goals of the

Forest Service. See, e.g.

(Forest Service must

"improve and protect the forest"); Forest Service Manual Chapter

2303.8 ("Strive for natural unmanicured atmospheres even when

sophisticated facilities are necessitated by local conditions.");

White Mountain National Forest Plan, Chapter III-2 ("Conduct all

management activities with full recognition of the appearance of

the forest, realizing the importance to society of a natural

landscape distinct from the man-made environments otherwise

dominate in the East.").

Plaintiff has produced no evidence that the Forest Service

must put public safety before other policy concerns.7 See

Shanskv, ___ F.3d ,

(rejecting blanket

assertion that all other policy concerns must yield where safety

is at issue). Rather, the Forest Service is free to engage in a

balancing of competing policy interests. See i d . at *5 (Park

7 Plaintiff cites to Forest Service Manual Chapter 2330 for the proposition that safety concerns are a top priority. As noted above. Chapter 2330 is inapplicable to the management of Tuckerman Ravine.

-16- Service not obligated to put public safety concerns above policy

of preserving history accuracy of landmark).

Indeed, Defendant has produced evidence that the Forest

Service considered several factors other than preserving the

Ravine's natural state, including public safety, when deciding

how best to deal with the waterfall crevasse. Lead Snow Ranger

Ray stated that the Forest Service rejected plans to erect cross­

poles over the spot because the snow melt would reguire that the

poles be replaced at least every other day, putting a strain on

limited staffing resources and exposing employees to freguent

dangers. Ray also noted that, in his experience, cross-poles

have a limited benefit. Visitors often approach the poles,

exposing themselves to the risks of undermined snow. See Def.'s

Ex. A at 529. Thus, the Forest Service weighed the competing

policy goals of public safety, employee safety, conserving

staffing resources, and maintaining the site in its natural

state. It is precisely this type of policy balancing that

Congress intended to protect. See Shanskv, ___ F.3d ___ ,

. That Plaintiff disagrees with the Forest Service's

ultimate decision is of no import to the discretionary function

analysis.

-17- Plaintiff also takes issue with the Forest Service's actual

attempts to warn the public about the crevasse danger. The

Forest Service chose to warn the public through brochures, face-

to-face contact, and the Avalanche Bulletin.8 This discretionary

decision involves balancing policy considerations. See Valdez v.

United States,

(9th Cir. 1995)("Faced with

limited resources and unlimited natural hazards, the [National

Park Service] must make a public policy determination of which

dangers are obvious and which dangers merit the special focus of

a warning brochure or pamphlet."); see also Rosebush v. United

States of America,

(6th Cir. 1997) (decision

whether to warn of potential danger a protected discretionary

function). Moreover, the Forest Service cannot possibly warn the

public of every danger associated with skiing and hiking the

Ravine. To do so would not only cut into limited financial

resources, but could also have a limited public safety benefit.

See Valdez,

("too many warning brochures and

pamphlets would inevitably reduce the impact of the individual

warnings on the public").

8 To the extent Plaintiff argues that the Forest Service was negligent in carrying out these warnings, the discretionary function exception would still apply to bar Plaintiff's claim. See Gaubert.

;

(a).

-18- CONCLUSION

Based on the foregoing analysis, I find that the Defendant's

decision not to barricade or post warnings of the waterfall

crevasse was a discretionary act susceptible to policy judgments

and, therefore, was the type of discretionary governmental action

Congress intended to protect. Accordingly, I find that this

court lacks jurisdiction to hear Plaintiff's claims as they are

based on acts or omissions of the government which fall within

the discretionary function exception to the Federal Tort Claims

Act. Thus, I grant Defendant's motion to dismiss (document no.

21) and dismiss Plaintiff's claims for lack of subject matter

jurisdiction.

SO ORDERED.

Paul Barbadoro Chief Judge

February 10, 1999

cc: Gretchen Leah Witt, AUSA June Resnick German, Esg. Peter G. McGrath, Esg.

-19-