United States District Court, D. Colorado
LOGAN BALL, ELIZABETH BALL, HANG SIK KIM, HYUN AH KIM, ESTATE OF SARAH BALL, and ESTATE OF PETER KIM, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT UNITED STATES
OF AMERICA'S MOTION TO DISMISS (DKT. #26)
REID NEUREITER, UNITED STATES MAGISTRATE JUDGE
before the Court is Defendant United States of America's
("United States") Motion to Dismiss (the
"Motion") (Dkt. #26), which Judge Robert E.
Blackburn referred to the undersigned magistrate judge on
August 28, 2018. (Dkt. #27.) On September 17, 2018,
Plaintiffs Logan Ball, Elizabeth Ball, Hang Sik Kim, Hyun Ah
Kim, Estate of Sarah Ball, and Estate of Peter Kim (the
"Plaintiffs") filed a Response (Dkt. #33) and an
Errata to the Response (Dkt. #34), and on October 1, 2018,
the United States filed a Reply. (Dkt. #40.) The Court heard
argument on the Motion on October 23, 2018. (Dkt. #43.) The
Court has taken judicial notice of the Court's file and
has considered the applicable Federal Rules of Civil
Procedure and case law. The Court, now being fully informed,
makes the following recommendation.
early morning hours of June 12, 2016, Sarah Ball, 18, and
Peter Kim, 19, were killed when Isaac Lutz drove the vehicle
in which the three were riding into an exposed, abandoned
mine shaft (the "Mine Shaft"). (Complaint
("Compl."), Dkt. #1 ¶¶ 22-24.) Just
before the accident, the vehicle had been traveling on U.S.
Forest Service Road 456.1A ("456.1A"), located in
in unincorporated Boulder County, Colorado, west of the town
of Gold Hill, Colorado. (Id. ¶¶ 30-31.)
The United States Forest Service ("USFS") owns the
land where the Mine Shaft is located and is responsible for
the maintenance of 456.1A. (Id. ¶¶ 27,
35.) The Mine Shaft, known variously as "The Gold Hill
Mine Shaft," "2810146144331100," or
"461-4433-1.100," was at least several decades old
at the time of the accident. (Id. ¶¶ 25,
27.) The Mine Shaft was approximately ten feet by twenty feet
in diameter and approximately 22 to 25 feet deep.
(Id. ¶¶ 57-58.) The Complaint alleges that
there is a fork in 456.1A east of the Mine Shaft that divides
the road into a north and south fork. The North Fork
"leads to a continuation of 456.1A and is the correct
Forest Service road." (Id. ¶ 41.) The
North Fork was narrower than the South Fork and was partially
blocked by tree limbs located six to eight feet above the
road. (Id. ¶¶ 42-43). Plaintiffs allege
that drivers travelling west along 456.1A would likely assume
the South Fork was the correct route due to its width and
lack of obstructing tree limbs relative to the North Fork.
But the South Fork instead led up and over a mound of dirt
and down into the gaping opening of the Mine Shaft,
(Id. ¶¶ 41, 44.)
11, 2018, the parents of Ms. Ball and Mr. Kim and the
decedents' estates (collectively "Plaintiffs")
filed suit against the United States and the Colorado
Division of Reclamation, Mining, and Safety
("CDRMS"). Plaintiffs assert claims for negligence,
premises liability, wrongful death, and a survival
action. Specifically, the Complaint alleges that
"[e]ven though the United States was aware of the
hazardous condition of the Mine Shaft before the Accident, it
neither abated the hazard by filling in the Mine Shaft, nor
did it warn or guard against the known danger of the Mine
Shaft." (Id. ¶ 53.)
Motion, the United States argues that Plaintiffs'
Complaint should be dismissed for lack of subject matter
jurisdiction for either of two reasons. First, the United
States claims that the Court lacks subject matter
jurisdiction over Plaintiffs' Federal Tort Claims Act
claims, 28 U.S.C. §§ 1346(b), 2671-80
("FTCA"), under the doctrine of sovereign immunity.
Second, the United States asserts that it is immune from tort
liability under the Colorado Recreational Use Statute, Colo.
Rev. Stat. §§ 33-41-101-106 (the "CRUS"),
because the United States is a property owner that allowed
its land to be used by the public for recreational purposes.
The Court will address these arguments in turn.
United States moves to dismiss under Rule 12(b)(1) for lack
of subject matter jurisdiction. These types of motions
generally take two forms: facial attacks or factual attacks.
Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.
2002). A facial attack questions the sufficiency of a
complaint, and the allegations in the complaint are accepted
as true. Id. In a factual attack, the movant goes
beyond the allegations in the complaint and challenges the
facts upon which subject-matter jurisdiction depends. In a
factual attack, the Court must look beyond the complaint and
has wide discretion to consider documentary and even
testimonial evidence. Sizova v. Nat'l Inst, of
Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.
United States launches both a facial attack and a factual
attack on Plaintiffs' Complaint. It asserts a factual
challenge as to whether Plaintiffs' tort claims meet the
discretionary function exception to the FTCA's waiver of
sovereign immunity. Accordingly, with regard to this issue,
the Court can refer to evidence outside the pleadings in
resolving the disputed jurisdictional facts. Holt v.
United States, 46 F.3d 1000, 1003 (10th Cir.
1995). The United States also mounts a facial
challenge under the CRUS, and the Court will therefore accept
Plaintiffs' allegations as true when addressing this
issue. Given the differing legal standards applicable to the
United States' jurisdictional challenges, the Court will
address specific allegations and facts as they arise in
relation to these two different arguments.
Waiver of Sovereign Immunity and the Discretionary
a waiver of sovereign immunity, the United States is
generally immune from suit, precluding federal court
jurisdiction. Garling v. United States Envtl. Prot.
Agency, 849 F.3d 1289, 1294 (10th Cir. 2017) (citing
FDIC v. Meyer, 510 U.S. 471, 475 (1994)). Thus, a
claim for money damages against the United States can proceed
only if Congress has waived sovereign immunity and consented
to the action. Aviles v. Lutz, 887 F.2d 1046, 1048
(10th Cir. 1989). In the context of a tort claim against the
United states, the FTCA waives sovereign immunity for
personal injury or death 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.
28 U.S.C. § 1346(b). But importantly, the waiver of
immunity does not cover 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." 28 U.S.C. §
2680(a). This is called the "discretionary
function" exception to the FTCA's waiver of
sovereign immunity. Under this exception, "the United
States cannot be held liable for any damages resulting from
its employees' acts or omissions unless a federal
statute, regulation, or policy mandates a course of action
and the employee fails to follow that mandated course of
action." Steele v. United States, No. 09-cv-
01557CMACBS, 2010 WL 2501200, at *2 (D. Colo. June 15, 2010)
(citing Berkovitz v. United States, 486 U.S. 531,
536 (1988)). This exception is "designed to protect
policymaking by the executive and legislative branches of
government from judicial second-guessing." Garcia v.
United States Air Force, 533 F.3d 1170, 1176 (10th Cir.
2008) (internal citations omitted). A government
employee's decision falls within this exception if it (1)
"involv[es] an element of judgment or choice" and
(2) is "based on considerations of public policy."
United States v. Gaubert, 499 U.S. 315, 322-23
(1991). Both prongs must be met for the exception to apply.
Berkovitz, 486 U.S. at 536.
the first prong, "an element of judgment of
choice," "[c]onduct is not discretionary if a
federal statute, regulation, or policy specifically
prescribes a course of action for an employee to
follow." Clark, 695 Fed.Appx. at 383 (quoting
Garcia, 533 F.3d at 1176). For the Court to find
that the regulation is not discretionary, there must be some
"fixed standard" for government employees to
follow. Flynn v. United States, 902 F.2d 1524, 1531
(10th Cir. 1990). If a duty is neither mandatory nor clearly
specified, it is discretionary, and the discretionary
function exception applies even when the discretionary acts
themselves constitute negligence. Barnson v. United
States, 816 F.2d 549, 553 (10th Cir. 1987). "The
existence of a regulation that allows a government employee
discretion 'creates a strong presumption that a
discretionary act authorized by the regulation involves
consideration of the same policies which led to the
promulgation of the regulations.*" Clark, 695
Fed.Appx. at 387 (quoting Gaubert, 499 U.S. at 324).
Thus, "[w]hen established governmental policy, as
expressed or implied by statute, regulation, or agency
guidelines, allows a Government agent to exercise discretion,
it must be presumed that the agent's acts are grounded in
policy when exercising that discretion." Id.
first prong is met, the Court must then consider whether
"that judgment is of the kind that the discretionary
function exception was designed to shield."
Gaubert, 499 U.S. 315, 322-23 (1991).
"Decisions that require choice are exempt from suit
under the FTCA only if they are 'susceptible to policy
judgment' and involve an exercise of 'political,
social, [or] economic judgment.'" Cope v.
Scott, 45 F.3d 445, 448 (D.C.Cir.1995) (quoting
Gaubert, 499 U.S. at 325)). If the judgment might be
based on policy considerations, then the second prong is met.
Sydnes v. United States, 523 F.3d 1179, 1185 (10th
Was the Decision Not to Warn Against the Danger of
the Mine Shaft Discretionary?
to the first part of the discretionary function test,
Plaintiffs argue that the United States did not have
discretion to allow the Mine Shaft to remain next to 456.1 A
in an unguarded and unmarked state. In support, Plaintiffs
cite the Declaration of Gregory Smith ("Smith
Decl."). (Dkt. #26-3.) Mr. Smith is a USFS employee
currently serving as the Recreation, Engineering, Lands and
Minerals Group Leader for the Arapaho & Roosevelt
National Forests and Pawnee National Grasslands (the
"Forest"), where the Mine Shaft was located.
(Id. ¶ 1.) Mr. Smith concedes that the USFS is
responsible for the maintenance of 456.1A. (Id.
¶¶ 6-8.) Moreover, Mr. Smith acknowledges that the
policies governing road maintenance on USFS lands are set out
in the Forest Service Manual (the "Manual"), the
Forest Service Handbook (the "Handbook"), and the
Forest Service Guidelines for Road Maintenance Levels (the
"Guidelines"). (Id. ¶ 6.) Plaintiffs
argue that the Mine Shaft meets the Manual's definition
of "road damage," which is defined as "[t]he
effect of either natural or human-caused events which
deteriorates the roadway, drainage, or structural components
so they do not function as intended, or cannot be properly
restored by currently scheduled maintenance." (Manual,
§ 7730.5, Dkt. #33-1 at 2.) The Manual requires the USFS
to "[r]ectify any safety problems by making emergency
repairs, or sign or close the road," and
"[p]romptly notify commercial users, and the public when
appropriate, about the nature of the damage."
(Id. at § 7731.)
also claim that that the Guidelines set forth the maintenance
requirements for Maintenance Level 2 roads, which includes
456.1A. Specifically, Plaintiffs point to the following
• "[L]og out and brush" removal of the
"traveled way" "to provide passage for high
• The shoulder is to be maintained for "access by
• "Remove or rampover slides and repair slumps as
needed to provide access for high clearance vehicles and to
control resource damage."
• Work to the roadside is required if "necessary to
provide clearance for existing traffic." For instance,
fallen trees may be left in place only "if not an
obstacle to safe passage of intended traffic."
• "Install and maintain route markers. Maintain
warning, regulatory, and guide signs, and other traffic
control devices as warranted in the sign plan
(Resp., Dkt. #33) (citing excerpt from the Guidelines, Dkt.
#33-2.) Plaintiffs contend that the USFS failed to follow