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atchafalaya
climber
California
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Topic Author's Original Post - Nov 7, 2007 - 04:25pm PT
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Oral argument occurs today before the Ninth Circuit Court of Appeals. Terbush's parents, enabled by a Redding atty, seek to hold the federal government liable for rockfall. The case was previously dismissed.
Another case, also before the Ninth Circuit today (Makiri v. US), also seeks to hold the Park Service liable for an accident that occurred while descending the Half Dome cables. This case also previously dismissed.
Anone know if the Access Fund submitted Amicus briefs? If the Terbush's and Makiri's are successful...
F*#k. Good luck to the US attorneys defending these cases.
http://www.supertopo.com/climbing/thread.html?topic_id=91267&msg=91373
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Mighty Hiker
Social climber
Vancouver, B.C.
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How long will it be before the court renders a judgment? Do they do so orally, from the bench, or do they usually reserve, and later issue a written judgment?
I searched the AF website under "Terbush" and "Glacier Point", but didn't come up with anything relevant.
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atchafalaya
climber
California
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Topic Author's Reply - Nov 7, 2007 - 05:01pm PT
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MH, it could be six months or more before we see a written opinion. They will not state their decision orally at the hearing. Three judges are hearing the appeal. Based on the briefs and questioning at the hearing, there likely will be differing opinions...
Govt liability for injuries/accidents involving climbers seems like the biggest threat to access. The AF thought Cave Rock was important. Seems like this is the fight I would have picked.
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Mungeclimber
Trad climber
sorry, just posting out loud.
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Stairs to the top of HD?
Made of a non conductive polymer?
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Mighty Hiker
Social climber
Vancouver, B.C.
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Does the NPS defence in the Half Dome cables case rely on the volenti non fit injuria principle? Or is there a statutory interpretation side to it also?
Certainly a huge public policy issue. Are they claiming that the cables were somehow NOT an obvious hazard, or should be safer, or?
I believe that the only successful U.S. lawsuits related to climbing have been based on product liability, or professional/guiding situations. Occupier's liability, and peer negligence, haven't gotten anywhere.
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Maysho
climber
Truckee, CA
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I was really impressed when Peter Terbush's dad wrote something in Climbing Mag, soon after losing his son, about his son's character and how he was the kind of guy who understood the belayer role and would not abandon his charge no matter what.
I was really bummed when I heard about the lawsuit, though I was facinated by the hydrological hypothesis as the possible reason for the rockfall. The park service being put on the hook for "duty to warn" about rockfall, or the dangers of the cables or being held liable for not anticipating all the possible and obscure ramifications of their building projects, could spell the end of climbing in parks. I hope the 9th circuit does the right thing and tosses both suits.
Peter
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Standing Strong
Trad climber
the only coast
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word. cuz when the 9th circuit speaks, everybody listens.
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ontheedgeandscaredtodeath
Trad climber
San Francisco, Ca
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Atcha- dismissed pursuant to 12(b)(6) or on summary judgment? If the former, it will be harder to make the dismissals stick on appeal. Sounds like you were there- who was on the panel?
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John Vawter
Social climber
San Diego
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Oral arguments were yesterday (11/6) before Fernandez, McKeown and a visiting judge from New York named Trager in San Francisco, according to the court calendar. You usually don't hear anything for months after oral argument. It's a little troubling that they thought it warranted oral argument, but that doesn't predict an outcome.
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atchafalaya
climber
California
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Topic Author's Reply - Nov 7, 2007 - 09:13pm PT
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JV is correct about the judges and dates. I was not there, but get daily updates on the happenings. I am not in my office now, but will check tomorrow for more info on the initial motions, etc.
The issue, as I remember from the memo, was whether the US is immune under the Federal Tort Claims Act. Discretionary immunity applies when an employee is forced to choose from between two available alternatives. There were alternatives to post warnings and/or close access.
Noted in the memo were several recent cases from the Ninth Circuit holding that the immunity does not apply. Lets hope these cases can be distuingished factually...
Unfortunately, theres a running joke in my office about discretionary immunity under the California Tort Claims Act. I plead it as defense often, and assert it in 12(b)(6) motions, demurrers, and MSJs, but can NEVER get a court to rule it applies. Hopefully, the fed version has some teeth.
Edit: AF folks, (I know you read this), what say you? Amicus briefs in support of the govt? If so, I'll join the AF.
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John Vawter
Social climber
San Diego
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This is definitely out of my area of expertise, but I did a little digging and found the lower court decision. According to the Order Granting Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction dated December 7, 2005, summary judgment was granted under FRCP12(b)(1) by U.S. Magistrate Judge Sandra Snyder, and plaintiff’s motion for leave to amend the complaint was denied. The court never got to assumption of the risk because it dismissed the case for lack of subject matter jurisdiction.
The judge found that the discretionary function exception to the waiver of immunity under the FTCA applied. I don't know what that means but I think the case can be boiled down to this: The NPS was under no duty to warn of rockfall hazards (even if a couple of recent rockfalls might have made the big one more predictable), because it is part of an overall NPS policy not to try to alert the public to every rockfall hazard in the park.
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Gene
climber
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Is the case about the NPS causing rock fall via the potty leach field, or is it about negligence regarding not informing the climbing public about the potential for GP to occasionally peel?
Some day in the future, after Mom Nature has her way, Yosemite Valley will be Yosemite Flatlands. At worse, the NPS accelerated a small portion of the inevitable.
Props to the deceased for maintaining the belay. Re: litigation
- Stuff falls. Outlaw gravity.
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John Vawter
Social climber
San Diego
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I only skimmed the 55-page lower court decision, so this is from the hip. But the threshold issue in any civil suit is jurisdiction. The plaintiff's have to first prove that the court has jurisdiction to even consider the matter.
Ordinarily the government has imunity from civil suits. The Federal Tort Claims Act lays out the conditions under which a party can sue the government.
It appears that the plaintiff's tried to make the case about leach lines and creating a hazard that the NPS knew about, or should have known about, and therefore should have warned about. I'm guessing that they were able to convince the magistrate that the NPS did something to waive governmental immunity under the FTCA. But the magistrate went on to find that the policy of not warning about rockfall hazards fell into an exception, the disretionary function exception. So the court did not have jurisdiction because the government was still immune from suit under an exception.
Now the plaintiff's are asking the Ninth Circuit to review the decision, and the Court scheduled oral argument for the Makiri case at the same time because the issues are similar.
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Fat Dad
Trad climber
Los Angeles, CA
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I externed with a district court judge during my second year of lawschool and if I recall correctly, 12(b)(6) is a federal summary judgment statute and 12(b)(1) is dismissal for other grounds, such as jurisdiction.
Personally, I hate seeing suits of this nature because of the potential impact on access. However, if there is credibility to the plaintiff's argument, that the rock fall may have been caused by the NPS' improper installation of the latrine system (and their expert was a geologist who formulated this theory PRIOR to the accident), I gotta say it lends some weight to the failure to warn argument. All that notwithstanding, I think anybody who's been climbing any length of time has heard about the big rockfalls at Glacier Point. I for one have not and likely will not climb there again, latrine or no.
Is Makiri the person who fell from the cables? If so, I cannot see any basis for a claim there.
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ontheedgeandscaredtodeath
Trad climber
San Francisco, Ca
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doodz, not to be an uptight lawyer or anything, but let's get this straight:
12(b)(1) provides for dismissal for lack of subject matter jurisdiction, 12(b)(6) provides for dismissal for failure to state a claim and Rule 54 provides for summary judgments.
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Fat Dad
Trad climber
Los Angeles, CA
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Ah yes, it's coming back to me now. Your are right. Guess you can tell I never get to federal court.
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John Vawter
Social climber
San Diego
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Ooops, I misstated the court's ruling. The motion to dismiss for lack of subject matter jurisdiction was granted, and as a result, the motion for summary judgment was dismissed as moot.
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John Vawter
Social climber
San Diego
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Here are the last three pages of the District Court's decision:
"Plaintiff has produced evidence of two relatively recent
rock falls on Glacier Point, preceding decedent’s death by months and weeks, respectively. Plaintiff has provided expert opinion that previous rock falls are important factors in prediction of future rock falls and that wastewater from the government’s facility probably contributed to the rock fall that killed decedent. This evidence warrants an inference that some factors important to prediction of future rock falls were present. However, in view of the nature of the hazard, the apparent difficulty of prediction of rock falls, and the setting of the hazard in a national park in which rock fall hazard abounded, it is concluded that even though a reasonable person might have apprehended a danger of rock fall at some unknown point in the future, and thus a safety concern was present, Plaintiff’s evidence is not sufficient to overcome the presumption that the discretionary act authorized by the policy involved the relevant competing policy considerations. The government’s decision regarding assessment of the danger of rock fall and of the need to protect or warn the public was not a case of routine maintenance, or of objective, established safety standards which were required to be implemented. Instead, the decision appears to have been clearly linked to considerations of not only safety, but also public access to natural resources and conservation of the natural environment. Cf. Childers, 40 F.3d at 975-76. Summers should not be read too broadly so as to exclude all decisions involving a safety concern from the range of public policy. Valdez v. United States, 56 F.3d 1177, 1180. Here, the nature of the government’s action involved considerations of maximizing access to the rock face for recreational use, judicious use of
signs in an area riddled with almost limitless hazards and many
obvious dangers, and competing concerns regarding the need to
minimize potential safety hazards. Here, as in Valdez, Blackburn, and Whalen, managing public access to resources, identifying the nature and extent or imminence of the hazard, and determining the need for warning or other protection constitute actions susceptible to policy analysis.
"D. Conclusion
The Court rejects Plaintiffs’ assertion that if this action
is dismissed, this Court will fall into the trap identified in
O’Toole, 295 F.3d 1029 (holding that an agency’s decision to
forego routine maintenance on an irrigation system for fiscal
reasons was not the type of policy decision protected by the
discretionary function exception), namely, to permit the
discretionary function exception to swallow the FTCA where the
government acts in the role of a private landowner. The present
case did not involve a routine decision regarding maintenance.
Further, it was not a simple failure to perform a mandatory duty
under an established, specific policy or pursuant to scientific,
objectively determinable standards. The Court is not guided by
Smith v. United States, 546 F.2d 872, 876-77 (10th Cir. 1976)
(holding that the failure to warn of thin earth crusts near a
thermal pool, where there were warnings about such hazards posted in other locations, was not a discretionary decision linked to the decision to keep the area underdeveloped), in which the court declared that the decision of the government, as a landowner, not to warn of known dangers or to provide safeguards cannot rationally be deemed discretionary. The Tenth Circuit courts have since recognized that the government’s status as landowner does not create a special type of discretionary function case, and that where the decision not to place warnings is part of some overall policy, the discretionary function exception applies. See Zumwalt v. United States, 928 F.2d 951, 953-56 (10th Cir. 1991) (decision not to mark a trail at a national monument in a wilderness area held to be discretionary where the pertinent policies provided that park personnel would first determine which sections of the trail were hazardous, without directions on how to make the determination, and where it was part of an overall decision to maintain the area in a wilderness state). This case is more like Childers v. United States, 40 F.3d 973, 975, where the action taken was part of an overall plan involving public policy considerations. In the unique circumstances of the present case, there is a clear connection between the discretionary policy considerations and the action undertaken.
Accordingly, it is concluded that Defendant has shown that
the discretionary function exception to the waiver of immunity
applies. Plaintiffs have not shown that the Court has subject
matter jurisdiction.
"It does not appear that any amendment of the complaint has
been suggested by Plaintiffs, would be appropriate, or would
change the Court’s analysis. Thus, Plaintiffs’ request to be
permitted to amend the complaint will be denied.
"Defendant’s motion to dismiss for lack of subject matter
jurisdiction will be granted.
"VI. Assumption of the Risk
With respect to assumption of risk, because the Court lacks
subject matter jurisdiction over this action, the Court lacks
jurisdiction to consider or grant Defendant’s motion for summary
judgment on the grounds of assumption of the risk. California
Save Our Streams Council, Inc. v. Yeutter 887 F.2d 908, 912-913
(9th Cir. 1989). Defendant’s motion is moot. The appropriate
remedy is to order the action dismissed. Id.
"Accordingly, it IS ORDERED that
"1) Defendant’s motion to dismiss this action pursuant to
Fed. R. Civ. P. 12(b)(1) IS GRANTED,; and
2) Plaintiffs’ request for leave to amend the complaint IS
DENIED; and
3) Defendant’s motion in the alternative for summary
judgment or summary adjudication IS DECLARED MOOT; and
4) The Clerk IS DIRECTED TO DISMISS this action for lack of
subject matter jurisdiction.
"IT IS SO ORDERED.
Dated: December 7, 2005 /s/ Sandra M. Snyder
icido3 UNITED STATES MAGISTRATE JUDGE"
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Mick K
climber
Northern Sierra
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I am also very interested in knowing if the Access Fund filed a brief in support of govermental immunity, and if not why not.
I can't imagine the park service would install rappel bolts if they are found liable for tyhe injuries to the hiker who fell on the cables.
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atchafalaya
climber
California
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Topic Author's Reply - Nov 8, 2007 - 06:07pm PT
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Just got back to my office and checked my info. Most of what I have has already been stated.
Still no word from the AF? I am waiting to sign up and send em a check...
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