Ball v. United States

          REPORT AND RECOMMENDATION ON DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS (DKT. #26)

          N. REID NEUREITER, UNITED STATES MAGISTRATE JUDGE

         Presently 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.

         I. BACKGROUND

         In the 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.)

         On June 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").^[1] Plaintiffs assert claims for negligence, premises liability, wrongful death, and a survival action.^[2] 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.)

         In the 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.

         II. LEGAL STANDARD

         The 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. 2002).

         The 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).^[3] 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.

         III. ANALYSIS

         a. Waiver of Sovereign Immunity and the Discretionary Function

         Absent 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.

         Under 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.

         if the 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 Cir. 2008).

         1. Was the Decision Not to Warn Against the Danger of the Mine Shaft Discretionary?

         Turning 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.)

         Plaintiffs 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 procedures:

• "[L]og out and brush" removal of the "traveled way" "to provide passage for high clearance vehicles."

• The shoulder is to be maintained for "access by high-clearance vehicles."

• "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 ...