- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Tort Law
- Date Filed: 10-17-2014
- Case #: 13-35287
- Judge(s)/Court Below: Circuit Judge Murguia for the Court; Circuit Judges Alarcón and Tashima
- Full Text Opinion
Donna Young and her family visited Mount Rainer National Park (“Park”) in June 2010 on a family vacation and stopped at the popular Jackson Visitor Center ("JVC"). Next to the JVC building is a large transformer that provides power to the JVC. The transformer runs all year and generates heat, which melts the snow around it. At the time Young and her family were at the Park, no sign was posted to warn visitors of the transformer. After leaving the JVC building, Young's daughter, J.Y., was walking in the snow next to the building, where snowplows deposit large amounts of snow from the parking lot. J.Y. asked Young to see a hole in the snowfield. As Young approached the hole the snow around her collapsed, and she fell twelve feet and onto a concrete pad and sustained severe injuries. The district court dismissed Young and her family’s suit on the grounds that decisions made to maintain the Park and warn visitors of hazards are discretionary functions of the National Park Service (“NPS”). The Federal Tort Claims Act waives sovereign immunity for certain torts, but retains immunity for “any claim based upon the performance of a discretionary function.” On appeal, the Ninth Circuit disagreed because in this case the danger was both created by and known to the NPS, and not general maintenance of the Park. The panel applied the Berkovitz v. United States test to determine if the decision to not warn visitors of a known danger was discretionary. The panel held that NPS did not rely on existing policies of national park management when making its decision to not warn of the danger of the transformer. While other reasons may exist to grant the government the discretionary exception, it cannot be done at the dismissal stage. REVERSED AND REMANDED.