Young and Ors v United States (2014) H&FLR 2014-57

Court of Appeals (Ninth Circuit)

17 October 2014

Coram: Alarcón, Tashima and Murguia JJ

Appearing for the Appellants: Wayne Mitchell (of Anderson & Mitchell PLLC)
Appearing for the Respondent: Priscilla To-Yin Chan (Assistant US Attorney) and Jenny Durkan (US Attorney)

Catchwords: Washington – National Park – electric transformer – melted snow – failure to warn – discretionary immunity.

Facts:  The defendant operated a visitor centre at Mount Rainer National Park in Washington State.  To supply electricity to the visitor centre, a power transformer was installed in a snowfield approximately 150 feet from the building.  The transformer releases heat as it operates.  The visitor centre is in an area which receives approximately inches of snow annually.  The snowfield in which the visitor centre was located would often contain an even greater amount of snow because the National park Service’s road ploughing operations would deposit even greater amounts of snow there.  At the relevant time, the transformer was entirely buried by snow and there was no warning of its presence.

The appellants were a Californian family who travelled to the Park.  They entered the snowfield near the visitor centre and while there Mrs Young walked on the snow over the top of the transformer.  As she did so the snow collapsed and she fell twelve feet onto the concrete pad supporting the transformer, suffering injury.  It was later identified that the transformer’s heat had melted a large amount of the surrounding snow, leaving only a thin ‘ceiling’ over a cavity.

The plaintiffs brought proceedings under the Federal Tort Claims Act (28 USC §1346(b)(1)) (Act), alleging that the National Park Service had negligently failed to warn them of a known hazard which the Service had created.  The defendant applied to dismiss the claim under §2680(a) of the Act, alleging that the government retains an immunity from claims based on the performance (or failure to perform) a discretionary function by a government agency.  The District Court granted the application and dismissed the claim: Young v US (US Dist. Ct., Settle J, 25 March 2013, unreported)  The plaintiffs appealed.

Held: Per curiam, allowing the appeal –

1.  To assess whether a claim is barred by the discretionary function exception requires first identifying the specific allegations of agency wrongdoing.  One must then ask two questions –

(a)  Was the allegedly negligent conduct discretionary?  That is, does it involve an element of judgment or choice for the agency?
(b)  Was the particular exercise of discretion one which the discretionary function exception was intended to protect?  The decision must be grounded in social, economic and political policy.

Berkovitz v United States, 486 US 531 (1988) and Whisnant v United States, 400 F.3d 1177 (9th Cir., 2005), followed.

2.  In this case the plaintiffs alleged a negligent failure to warn of a danger the government itself knew of and had created.  This failure may prima facie not be covered by the discretionary exception and so it was appropriate to move on to the two further questions.  It was common ground that the decision whether or not to install warning signs near the transformer was discretionary.  However, a decision not to warn of a specific, known danger for which the agency is responsible is not the kind of broader policy decision which the exception was meant to protect.  The decision was not susceptible to considerations of social, economic or political policy which the defendant identified.

Sutton v Earles, 26 F.3d 903 (9th Cir., 1994), approved.


The Court’s judgment is available here.