Rosebush v. United States

119 F.3d 438, 1997 WL 394461
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 16, 1997
DocketNo. 96-1357
StatusPublished
Cited by101 cases

This text of 119 F.3d 438 (Rosebush v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosebush v. United States, 119 F.3d 438, 1997 WL 394461 (6th Cir. 1997).

Opinions

HILL J., delivered the opinion of the court, in which RYAN, J., joined.

MERRITT, J. (pp. 44A447), delivered a separate dissenting opinion.

[440]*440OPINION

HILL, Circuit Judge.

Plaintiffs David and Valerie Rosebush brought this action against the United States and the United States Forest Service under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), claiming damages for injuries suffered by their sixteen-month old daughter when she fell into a fire pit at a government campground. The district court dismissed plaintiffs’ complaint, holding that the federal government’s operation and maintenance of the campground is a “discretionary function,” for which it has not waived immunity under the Federal Tort Claims Act. This appeal followed.

I.

According to the complaint,1 David and Valerie Rosebush went camping with their sixteen-month old daughter Natasha at the Camp 7 Lake Recreation Campground in the Hiawatha National Forest in the Upper Peninsula of Michigan. Each campsite is provided with a fire ring and pit, consisting of a large steel ring in the ground surrounded by a ring of concrete.

On the morning of June 26, 1994, Mr. Rosebush was at the campsite to get his fishing poles when Natasha wandered to the pit and fell in. She was badly burned by the hot coals smoldering in the pit.

Plaintiffs brought this action against the United States and the United States Forest Service under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) alleging that the fire pit was an unreasonable hazard and that defendants were negligent in failing to place a grating over the fire pit and/or failing to place protective railings around the pit. Plaintiffs further claim that the Forest Service was negligent in assigning a campsite known to be unfit for occupancy because of the fire pit’s dangerous condition. Finally, plaintiffs claim that the failure to warn of the dangers associated with the fire pit was a proximate cause of the third degree burns suffered by Natasha Rosebush.

The United States filed a motion to dismiss on two grounds: first, the action is barred because the management and maintenance of the campsite is a discretionary function, and discretionary functions are not actionable under the FTCA; and second, plaintiffs fail to state a claim upon which relief can be granted because the United States did not breach an actionable duty under Michigan law.

The district court dismissed plaintiffs’ claims, holding that the action was barred by the discretionary function exception to the FTCA. We review the district court’s application of the discretionary function exception and dismissal of this action de novo.2 United States v. Yannott, 42 F.3d 999, 1003 (6th Cir.1994) (citations omitted), cert. denied, 513 U.S. 1182, 115 S.Ct. 1172, 130 L.Ed.2d 1125 (1995).

II.

Congress has waived the sovereign immunity of the United States by giving district courts jurisdiction over certain tort actions against the United States. FTCA § 1346(b). Congress, however, excepted from this limited waiver “[a]ny claim ... 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.” FTCA § 2680(a). If a case falls within this statutory exception to FTCA § 1346(b), the court lacks subject matter jurisdiction. Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985).

[441]*441In a series of cases, the Supreme Court has articulated and refined a two-part test to be applied in determining whether a particular claim falls under this discretionary function exception to the waiver of sovereign immunity. See United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The first part of the test requires a determination of whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment or choice. Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273-74; see also Graves v. United States, 872 F.2d 133, 137 (6th Cir.1989). If so, the discretionary function exception does not apply because there was no element of judgment or choice in the complained of conduct. Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273. “The requirement of judgment or choice is not satisfied if a ‘federal statute, regulation or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee had no rightful option but to adhere to the directive.’ ” Id. (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59).

If the challenged conduct is determined to be discretionary, the second part of the Gaubert test looks to see whether the conduct is “of the kind that the discretionary function exception was designed to shield.” Id. at 322-23, 111 S.Ct. at 1273. In enacting FTCA § 2680(a), “Congress wished to prevent judicial ‘second guessing’ of legislative and administrative decisions grounded in social, economic, and political policy.” Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2765; Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1958-59. Thus, where there is room for policy judgment and decision, there is discretion of the sort protected by Section 2680(a). Dalehite, 346 U.S. at 36, 73 S.Ct. at 968.

III.

In deciding whether the complained of conduct was grounded in judgment or choice, the crucial first step is to determine exactly what conduct is at issue. Autery v. United States, 992 F.2d 1523, 1527-28 (11th Cir.1993). Plaintiffs sub judice contend that the United States is liable because the Forest Service failed to make the fire pit safe for unsupervised toddlers, and to warn of the dangers of the fire pit.

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Bluebook (online)
119 F.3d 438, 1997 WL 394461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosebush-v-united-states-ca6-1997.