April 2016 - Parks & Recreation - 38

L AW R E V I E W

a legal basis for a negligence claim.
If discretionary function immunity
were applicable, the federal appeals
court acknowledged that there is no
basis for negligence liability, even if
" park officials abused their discretion " in " deciding how to manage
the problematic goat. " According to
the court, " at step one of the discretionary-function-exception analysis,
all that matters is that there was, in
fact, discretion. "
Policy-Based Decision?
Having found no mandatory directive or policy for managing this particular mountain goat, the federal appeals court proceeded to the second
step of the process established by the
Supreme Court to determine the applicability of the FTCA discretionary

36	 Parks & Recreation

function exception. Specifically, given some degree of discretion and " element of judgment " on how to manage the situation, the court would
consider whether " that judgment
is of the kind that the discretionary
function exception was designed to
shield, " viz., " government actions
and decisions based on social, economic and political policy. "
As noted by the court, such discretionary immunity is " not confined to
the policy or planning level, " but extends to " the actions of government
agents " at all levels from the agency
director to agents in the field, like
park rangers.
It does not matter, then, if the decision
at issue was made by low-level government officials, rather than by high-level
policymakers. It is the nature of the con-

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duct, rather than the status of the actor,
that governs whether the discretionary
function exception applies in a given case.
In this particular instance, Chadd
contended, " park officials had only
one choice: Comply with their own
policies requiring them to prioritize
human life and kill the goat. " As
characterized by the court, Chadd's
argument simply reiterated her claim
that reasonable care under the circumstances necessitated killing the
goat. According to the court, in determining the applicability of the
FTCA discretionary function exception, it was irrelevant " whether there
was only one reasonable course of
action. " Rather, the relevant question before the court was whether the
course of action chosen was " susceptible to a policy analysis. " (Emphasis
of court) In other words, " the design
of a course of governmental action is
shielded by the discretionary function
exception, " but " the implementation
of that course of action is not. "
Chadd had argued that Olympic's
" failure to escalate up the levels of
the Nuisance and Hazardous Management Animal Plan " was a failure to implement a designed course
of governmental action, viz., safety
measures already in place. According
to Chadd, " the goat was an obvious
health hazard that was a matter of
safety and not policy " based upon
" repeated acknowledgments by park
officials that the goat was dangerous
and aggressive. " Further, Chadd noted testimony that the hazing techniques used by officials were known
to have only a " temporary effect. "
In addition, as evidence of a failure to implement a designed course
of action, Chadd cited the park superintendent's own statement that
" the usual practice is to 'ramp up'
management techniques when one
April 2016 - Parks & Recreation

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