VIRGINIA DROWNING AT GREAT FALLS NATIONAL PARK
NYAZIE v. KENNEDY
No. CIVIL ACTION NO. 97-0120 (U.S. Dist. Court, E.D. Pa. 1998)
U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
January 27, 1998
This wrongful death and survival action has been brought under the Federal Tort Claims Act, 28 U.S.C. §2671 et. seq., by the parents and siblings of Khadija Nyazie, a fifteen year old former resident of Upper Darby, Pennsylvania, to recover damages arising from her drowning in the Potomac River at Great Falls National Park, Virginia.
Great Falls Park is one of several sites in the National Capital area administered by the National Park Service ("NPS") and is overseen by the superintendent of the George Washington Memorial Parkway. The Potomac River runs through the park and, although swimming or wading is prohibited, trails and overlooks allow scenic hiking for visitors. To raise maintenance funds, the Park charges each entering car a $4.00 entrance fee which is collected at the sole visitors' entrance. That entrance is marked with warnings regarding the dangers of the river The sign at the entrance states, "DANGER. Deadly Current, Slippery Rocks. Even Wading Can Kill. No Wading. No Swimming"
On August 24, 1995, at approximately 6:45 p.m., Khadija Nyazie, a fifteen-year old girl, and her family paid the fee and entered Great Falls National Park in Great Falls, Virginia to "picnic and enjoy the scenic view of the Potomac River." According to plaintiffs, they received no brochures, handouts or warnings regarding safety within the park. After parking in the lot adjacent to the Visitor's Center, plaintiffs walked to the family picnic area. Khadija and fourteen-year old Saiftullah Alam left the group to walk the park trails and get a better view of the river. Plaintiffs allege that there were "no warning signs anywhere from the picnic area to the location where Khadija and Saiftullah stopped." The two children left the trails and began to climb out onto the rocks at the river's edge above the falls. Directly in front of them was the Potomac River which veered into a ten to fifteen foot waterfall. The two sat on the rocks and, as Khadija attempted to reach the water, she fell into this waterfall zone. Her companion tried to reach her, but he too was pulled into the water. The only reported witnesses to this accident were Mrs. Tamara Sue Bloomer and Mr. Mark A. Olon who were also visiting the park. Mrs. Bloomer reported the accident to appropriate officials.
Although Saiftullah was able to swim to an island of rocks where he was rescued, Khadija was not found until two days later, August 26, 1995. She was pronounced dead at Suburban Hospital in Bethesda Maryland.
Plaintiff Barry Nyazie, father of the deceased Khadija and administrator of her estate, filed an administrative claim for damages resulting from her death in the amount of $7 million dollars.
On August 20, 1996, the claim was denied in a letter sent via certified mail. The letter stated that: In the instant matter, the administrative record contains no evidence to establish any negligent or wrongful act or omission on the part of the Government in this matter. The record contains evidence that the Government provided adequate notice of any hazards involved. Further, the conditions were open and obvious.
Additionally, the unsupported allegations of negligence on the part of the Government fall within the discretionary function exception of the F.T.C.A. and, consequently, are not covered by the Act 28 U.S.C. 2680(a).
Following this denial, a complaint was filed on January 7, 1997. Plaintiff asserted that the drowning resulted solely from the "carelessness, recklessness and negligence of the defendants" and based defendants' liability on the following actions: (i) allowing a dangerous condition to exist on the property of which they knew or should have known; (ii) failing to warn or post adequate warning signs of such dangerous conditions; (iii) failing to take precautions to prevent this type of accident; (iv) failing to erect barriers, fences, chains, ropes, etc. near the accident site; (v) failing to adequately inspect, supervise and provide sufficient personnel to patrol the park; (vi) failing to make adequate and necessary repairs and to maintain the park.
Defendant filed the instant Motion to Dismiss, or for summary Judgement in favor of defendants based on the discretionary function exception to the Act. Defendants assert that plaintiffs' claims against the United States are barred by the discretionary function doctrine and, therefore, that this action should be dismissed for lack of subject matter jurisdiction.
[A] party may bring an action against the United States only to the extent that the government waives its sovereign immunity. Although, the Federal Tort Claims Act constitutes a waiver of that immunity for tort claims that arise from a government employee's conduct within the scope of his or her employment, that waiver is not absolute. The discretionary function exception bars FTCA claims "based upon 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." 28 U.S.C. §2680.
Underlying the exception is a congressional wish "to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort."...
To determine whether challenged conduct falls within the discretionary function exception, the court must analyze it under a two- step test. First, because the exception only covers actions that are "discretionary in nature," the court must decide if those actions involve an "element of Judgement or choice." It is the nature of the conduct, rather than the status of the actor that governs whether the exception applies.
If a federal statute, regulation or policy specifically sets forth a directive, an employee will not be shielded by the exception for failure to follow that directive. However, it is the governing administrative policy, not the government's knowledge of the danger that determines whether certain conduct is mandatory for purposes of the discretionary function exception. Considerations of negligence are irrelevant to this analysis... [The test is not whether the government actually considered each possible alternative in the universe of options, but whether the conduct was of the type associated with the exercise of official discretion.
Second, once the element of discretion is established, the court must determine "whether that Judgement is of the kind that the discretionary exception was designed to shield." Essentially, the discretionary exception "protects only governmental actions and decisions based on considerations of public policy" including those grounded in social, economic or political concerns. Thus, "the relevant question is not whether an explicit balancing is proved, but whether the decision is susceptible to policy analysis." The FTCA expressly provides that the exception "applies to policy judgments, even to those constituting abuse of discretion."
Plaintiffs essentially claim that defendants were negligent in (1) allowing a dangerous condition to exist and failing to maintain the park; (2) failing to warn about such conditions through either signage or brochures; (3) failing to erect barriers or fences around such hazards; and (4) failing to inspect and supervise the park. They assert that this conduct does not fall within the discretionary function exception and, as such, is not immune from suit.
Having scrutinized the policies, directives, manuals and guidelines of the National Park Service and Great Falls National Park, I find that, with respect to the warning signs, barriers and supervision, the Park's decisions are immunized. However, the failure to hand out warning brochures escapes the reach of the discretionary function exception.
The first relevant inquiry asks whether the controlling statutes, regulations and administrative policies mandate that the National Park Service maintain the Park, post and distribute warnings, erect barriers and supervise the Park in a certain manner. Well-founded precedent has determined that such decisions fall squarely within the discretion of the government.
In Blackburn v. United States, 100 F.3d 1426 (9th Cir. 1996), a diver sued under the FTCA for injuries sustained when he dove off a bridge in Yosemite National Park. His alleged claims against the government included failure to warn, negligent design and maintenance of the bridge and failure to abate hazards associated with diving off the bridge. Id. The Court, upon reviewing the various statutes and Management Policies under which the National Park Service employees operated, found that they "necessarily encompass an element of discretion in deciding how and when to warn the public of known dangers." Id. At 1431. The Court continued on to state that:
Although the policy manuals outline general policy goals regarding visitor safety, they do not set out the specific means by which the NPS employees are to meet these general goals. Further more, the policy manuals' broad mandate to warn the public of and protect it from special hazards involves the exercise of discretion in identifying such hazards in determining which hazards require an explicit warning and in determining the precise manner in which to warn it of those hazards.
Plaintiffs contend that Blackburn is distinguishable from the instant matter. According to plaintiffs, that case held that it was only discretionary to identify hazards and determine which required an explicit warning and which hazards spoke for themselves. The distinction, argue plaintiffs, is that, in this case, Great Falls personnel already determined that the hazard was hidden and a warning was required.
Plaintiffs' description of Blackburn, however, falls among the many cases that they mischaracterize. Plaintiffs fail to note that the Blackburn court also found that, once a hazard is identified as requiring a warning, a discretionary decision is involved in determining "the precise manner in which to warn of those hazards." Blackburn, 100 F.3d at 1431. While it is true that Great Falls personnel did identify the water as a hazard requiring a warning, they still maintained complete discretion as to how to notify the public of the danger.
Similarly, in Valdez v. United States, 56 F.3d 1177 (9th Cir. 1995), the plaintiff was rendered quadriplegic when he fell down a waterfall in Kings Canyon National Park after attempting to descend down the side of the falls and losing his footing. The plaintiff made five claims in that matter including: (1) negligently designing and maintaining a trail in a way that appeared to lead into the waterfall; (2) failing to adequately warn; (3) failing to keep the area safe; (4) failing to prevent such actions by park visitors by erecting barriers; and (5) failing to warn the public of potential hazards through educational materials. Id. at 1178. Holding that the discretionary function exception applied to all of these concerns, the Court stated that "[the Park] guidelines can be considered mandatory only in the larger sense that they set forth broad policy goals attainable only by the exercise of discretionary decisions." Repeatedly, courts have recognized that decisions regarding maintenance, warning, barriers and supervision of the national parks involve a great degree of discretion by park officials.
In contrast, several cases have ruled that the conduct at issue included no "element of Judgement or choice" because a regulation set forth a specific directive. For example, in Faber v. United States, 56 F.3d 1122 (9th Cir. 1995), the plaintiff, who was injured when he dove into a natural pool at the Tanque Verde Fallsthe Tanque Verde Falls, asserted negligence stemming from the National Forest Service's failure to warn. Prior to the accident, the Forest Service, knowing that a significant number of diving accidents were regularly occurring at the Tanque Verde Falls, promulgated a Tanque Verde Management Plan requiring the development of a sign plan, creation of an ongoing media program and provision of "a presence" to verbally warn the public of dangers. Despite this directive, the Forest Service failed to provide any warnings or implement any of the prescribed safety measures. As such, the court held that "the Forest Service did not exercise any choice in failing to warn about the dangers associated with diving from the Falls." Unlike the cases discussed above, definite guidelines existed which mandated certain action.
In the instant case, NPS's decisions regarding maintenance, warning signs, guardrails and supervision in the park all contain some "element of Judgement or choice" that makes them discretionary. Nothing within the governing administrative policy dictates specifically how the park should manage safety precautions. Chapter 8.1 of the Management Policies states that "Visitors will be given appropriate information to encourage safe and lawful use of the parks and to minimize any resulting adverse impacts on park resources." Chapter 8.5 goes on to note that:
The saving of human life will take precedence over all other management actions. The National Park Service and its concessioners, contractors, and cooperators will seek to provide a safe and healthful environment for visitors and employees. . . . However, park visitors assume a certain degree of risk and responsibility for their own safety when visiting areas that are managed and maintained as natural, cultural or recreational environments. Where practicable and not detrimental to NPS mandates to preserve park resources, known hazards will be reduced or removed. Where it would be inconsistent with congressionally designated purposes and mandates or where otherwise not practicable to make physical changes, efforts will be made to provide for persons' safety and health through other controls, including closures, guarding, signing, or other forms of education. Management Policies, at Chap. 8.5.
Additionally, Chapter 1 of the NPS Sign Manual states that "the individual park manager, following the guidelines and procedures set down in the [National Park Service Traffic Control Sign and System Guideline], has the responsibility for determining whether or not a sign is necessary or appropriate at a given location." Sign Manual, at 1-1.
These regulations are virtually identical to those under which the NPS operated in Blackburn and Valdez. Defendants also refer the court to the Affidavit of Audrey F. Calhoun, Superintendent of George Washington Memorial Parkway, National Capital Region, National Park Service, Department of the Interior. Ms. Calhoun states that "here are no federal statutes which specifically proscribe or describe a course of conduct or action for the National Service to follow" in management of the park.
Thus, in contrast to plaintiffs claims, the regulations actually grant a great deal of latitude in implementation to the NPS to determine which situations are hazardous and how to handle those dangers. Nothing dictates that a specific number of signs or guardrails need be placed around the Potomac River to warn of its dangers. The NPS could, in its wisdom, decide to erect no warnings in a particular area without violating any directives. Like the regulations in Blackburn, Valdez, and numerous other decisions, these policies create broad goals that can only be attained by the exercise of discretionary decisions.
Other relevant regulations are found in the Loss Control Management Program Guidelines. Chapter 22 states that "all areas will provide any special materials, signs and programs to alert the public of potential dangers." Loss Control Management Guidelines (LCMG), Chap. 22, p.2. Additionally, the guidelines mandate that "the park safety Officer should review the signing of the park and determine if it is appropriate for the area signed and if it is in good repair." Id. None of these provisions remove the discretion of the NPS to determine how to handle warnings.
Plaintiffs claim that the defendants violated an established policy by failing to give them brochures with inserts warning of the hazards in the park. The warning insert to the park brochure stated, in relevant part: "Warning: Drowning is Real Frequent drownings occur in the Great Falls area. Anyone entering the river is at risk. The Potomac seems so tranquil that people are unaware of danger. Water currents are extremely strong with massive undertows even where the surface looks calm. Stay away from the water's edge; wet rocks are slippery. Fish only from the shore."
Accordingly, plaintiffs assert that, "since these management guidelines mandated these warnings be given to Park visitors through these brochures/inserts, there was no discretion to an employee to ignore and violate a mandated policy of the National Park Service."
While failure to follow a directive would escape the discretionary function exception, plaintiffs point to no specified policy of the National Park Service that requires brochures to be distributed at the entrance gate. The only applicable provision in the Management Policies of the NPS states that "visitors will be given appropriate information to encourage safe and lawful use of the parks and to minimize any resulting adverse impacts on park resources." Nothing in that regulation requires that this information be disseminated to each entering car through a brochure.
Unlike the rules in Faber, this statement is a far cry from a clear directive. Moreover, the Loss Control Management Guidelines, Chapter 22, state that "brochures specific to the area should contain safety messages that direct attention to special hazards or attractions that could be potentially hazardous to the visitor." LCMG, Chap. 22, p.2.
In order to read this provision in context, it is essential to note the purpose of the Loss Control Management Guidelines. The introduction states: This guideline has been prepared to provide both field units and office managers with sufficient information to develop a comprehensive safety and occupational health program. However, each area must design its own safety and occupational health effort based on local circumstances and operations. LCMG, introduction, p.iii. Thus, the broader mandate of the Guidelines leaves substantial discretion with the park officials.
This provision, contained in the section describing appropriate educational materials, only mandates what should be in a brochure, not that the Great Falls Park staff is required to hand each visitor vehicle a brochure.
In her deposition of December 3, 1997, Audrey F. Calhoun, Superintendent for the George Washington Memorial Parkway, stated that there is no policy that mandates that brochures or any other type of handout be given to visitors of the park. Additionally, Ms. Calhoun explained that: [The brochures] are given out in various forms. People can pick them up at the visitor center. If the entrance station is manned, people can pick the brochure up there. It's one of the things that the fee collector may hand out along with the ticket, the receipt for paying the fee. They can pick the brochure up at the Parkway headquarters. We can mail the brochure out to people if they request it. Id. at p. 61. Hence, even assuming that plaintiffs did not receive any type of brochure upon entering the park, no policy, directive or mandate was violated by the park personnel. Although the park had a goal of providing the handout to each vehicle, this goal is not a directive...
In the instant case, regardless of whether or not the NPS was negligent providing safeguards against the tragic accident, the decisions as to maintenance, warnings, brochures, guardrails and supervision in the park were a product of sheer discretion granted to the officials by the NPS Management Policy.
(2) Considerations of Public Policy
Even if the challenged Government conduct does involve an element of discretion, the discretionary exception will not shield the challenged conduct unless it is based on considerations of public policy. Blackburn v. United States, 100 F.3d 1426,1433 (9th Cir. 1996). Again, clear precedent advocates vigorously in favor of the defendant's position that its decisions are permeated with policy concerns. However, defendant's case falters when considering the failure to hand out the warning brochure.
As stated above, regardless of whether or not there is evidence that policy factors were the basis of a challenged decision, the discretionary function exception applies if the decision is susceptible to policy analysis. Decisions whether and how to make federal lands safe for visitors require making policy judgments protected by the discretionary function exception.
As discussed above, in Blackburn v. United States, 100 F.3d 1426 (9th Cir. 1996), plaintiff alleged negligence by the NPS for failure to warn of the dangers in diving off a bridge. The court found that the NPS's decisions not to erect barriers on the bridge or put warning signs on the bridge itself were based on considerations of public policy, stating that:
The decisions regarding the election, placement and text of the signs were based on considerations of visitor enjoyment, preservation of the historical features of the bridge, the need to avoid a proliferation of man-made intrusions, and protection of wildlife and the general riparian environment.
Upon finding that the decision was "precisely the kind the discretionary function exception was intended to immunize from suit," the court held the Government immune from tort liability.
The recent Sixth Circuit case of Rosebush v. United States, 119 F.3d 438 (6th Cir. 1997), also demonstrates what has been considered an acceptable policy decision within the boundaries of the discretionary function exception. In that case, the plaintiffs sued the United States Forest Service to recover for injuries suffered by their sixteen-month old daughter when she fell into a fire pit at a national campground. They alleged negligent maintenance of a dangerous condition, failure to erect barriers and negligent management. Holding the Government immune from suit, the court stated:
The management and maintenance decisions of the Forest Service at the Camp 7 Lake Recreation Campground including the decision to have open fire pits, the design of the pits, whether to enclose them within railings, and whether to warn of their dangers involves balancing the needs of the campground users, the effectiveness of various types of warnings, aesthetic concerns, financial considerations, and the impact on the environment, as well as other considerations.
The courts have found, in several instances, that failure to warn did not fall into the discretionary function exception because there was no link between the policy considerations and the decision at issue. "Where the challenged governmental activity involves safety considerations under an established policy, rather than the balancing of competing policy considerations, the rationale for the exception falls away and the U.S. will be responsible for the negligence of its employees." Aslakson v. United States, 790 F.2d 688, 693 (8th Cir. 1986).
For example, in Summers v. United States, 905 F.2d 1212 (9th Cir. 1990), plaintiffs sued the NPS for failure to identify and warn of the danger to barefoot visitors of hot coals on park beaches. The court held that, although the decision was one involving discretion under the first prong of the discretionary function test, it resembled more a departure from the safety considerations established in the Service's policies than a mistaken Judgement in a matter clearly involving choices among political, economic, and social factors. Because the park service did not even consider the danger to visitors from the hot coals, policy concerns "played no part in the formulation of the changed Park Service policy on fire rings."
[T]he case at bar involves several decisions regarding maintenance, warnings, barriers, and supervision/inspection that unequivocally involved a balancing of policy considerations. Chapter 1.3 of the NPS Management Policies states that:
Congress's mandate to the Park Service has been expressed as conserving resources while providing for their enjoyment by today's citizens in a manner that will leave them unimpaired for future generations. There will inevitably be some tension between conservation of resources on one hand and public enjoyment on the other. The National park Service is charged with the difficult task of achieving both. Management Policies, at chap. 1.3.
With respect to warning signs, chapter 9.11 continues on to declare that:
Signs will be held to the minimum number, size, and wording required to serve their intended functions, so as to minimally intrude upon the natural or historic setting. They will be placed where they do not interfere with park visitors' enjoyment and appreciation of park resources. Management Policies, at 9.11.
Other policy concerns have been identified by Audrey F. Calhoun, the Superintendent, George Washington Memorial Parkway, National Capital Region, National Park Service, department of Interior. Regarding supervision of the park, she states that
Decisions on the deployment of National Park Service personnel by day of the week and time of day are based upon balancing concerns for visitor safety, visitor enjoyment of the park, maintenance requirements, natural and historic resources protection, budgetary constraints, and allocation of limited staff and financial resources.
She goes on to explain, with respect to maintenance and barriers that,
The major factors in deciding if and how to specifically install barrier fences on the shoreline would include historic and aesthetic considerations, the structural integrity of any fence due to changing levels of the river, the impact to the environment, cost estimates, budgetary restraints, public safety, and impact on the quality of the visitors' experience in and enjoyment of the park . . . Shoreline fencing was and is not required under any existing law, regulation, or standard.
The introduction to the Loss Control Management Guidelines also states: Paradoxically, many of the natural features found in parks pose significant safety risks to the uninformed visiting public, yet those same features cannot be eliminated nor guarded against in the same manner that a prudent person would expect to find in an industrial or home setting. Therefore, NPS public safety efforts are focused on interpreting the values of the park's natural features and educating the visitor concerning the proper precautions one must take to have a safe and healthful journey at that specific park unit.
[T]he National Park Service clearly engaged in a balancing of various policies in deciding how and when to provide for visitor safety in the park. As evidenced by the already existing signs and the park brochure, the NPS was aware of the dangers associated with the river. Taking into consideration the competing concerns of public safety, feasibility, aesthetics, budgetary constraints, and unrestricted visitor enjoyment of the park, it set up a system by which to manage these hazards...
Whether or not the signs, barriers, maintenance and supervision were sufficient to prevent accidents of the sort that occurred or whether the government negligently engaged in an inappropriate balancing is outside the scope of the court's power of review. Furthermore, plaintiffs' claim that the recent erection of new signs and barriers "certainly burst the bubble on defendants' argument that the fencing was an eyesore" and "not permissible" has no impact on the determination that these decisions were based on considerations of public policy. These decisions were "precisely the kind the discretionary function was intended to immunize from suit." Childers v. U.S., 40 F.3d 973, 976 (9th Cir. 1995).
However, one remaining concern lingers. Although defendant did have discretion as to whether brochures were to be distributed to visitors, it had already established a general practice of handing them out to every entering car. The Park officials had made a policy-based determination, albeit one they were not required to make, that handouts were helpful to prevent accidents and should be given at the entrance gate.
Viewing the facts in the light most favorable to plaintiffs, plaintiffs did not receive a brochure on the day of the accident. The failure to hand plaintiffs a brochure at the front gate seems not to be a decision grounded in the balancing of policy considerations or a concern for attaining various goals of the National Park Service, but rather mere inadvertence on the part of the Park rangers. This decision is not of the kind that Congress sought to protect.
As a final caveat, the ruling today is not the final pretrial word on the appropriate Disposition of this matter, nor is it a ruling on the defendant's liability. Should additional discovery reveal policy reasons for not handing a brochure to plaintiffs, the case may be dismissed on summary Judgement grounds.
Moreover, because discretionary function immunity applies to every other contested governmental action, plaintiffs' ultimate case may only prevail on the showing of a causal connection between the failure to receive a brochure and the accident. However, at this juncture, absent further information, I cannot dismiss this entire action for lack of subject matter jurisdiction.
Because the defendant's decisions regarding warning signs, supervision, maintenance and barriers involved discretion and entailed a balancing of policy concerns, I hold that the discretionary function exception applies and that the Government is immune from suit on these issues. However, because the failure to hand out a warning brochure to plaintiffs does not fall within the ambit of this exception, the Motion to Dismiss must be granted in part and denied in part.