January 2020 - Parks & Recreation - 25

challenging the government's
choice of one mitigation approach
over some other. " The court, however, found the government's argument ignored the families' claim
that " park officials failed to satisfy
their baseline duty to do something
about the tree " :
Even if the directive gives officials broad leeway in deciding
how to abate the danger posed by
a high-risk tree, the directive still
instructs that they do something
toward that goal.
Given the requirements of Yosemite Directive No. 25 " to abate
the hazard, " the federal appeals
court held that a decision to do
" nothing at all " would not be
immune from liability under the
FTCA discretionary function exception.

Warn of Known Dangers
The families further claimed " Park
officials were negligent in failing to
warn visitors that the tree was dangerous. " Based upon the following
language in Directive No. 25, the
federal appeals court found park
officials had a duty to " warn visitors of known dangers " :
The park will provide reasonable public information about the
known potential for risk of exposure in the park to hazard tree
conditions. The intent is to make
the public aware of potential tree
hazards that are known to exist in
developed areas within the park or
sections of the park. This information/public outreach should be on
a level commensurate with other
public safety information.
In response to the families' failure-to-warn claim, the federal appeals court further found " the government has not identified even a
single policy-based consideration

that might stop park officials from
notifying visitors about known tree
hazards. " Instead, as described
by the court, the government
had simply asserted a conclusory
statement " without elaboration,
that the decision whether to post
a warning is subject to policy considerations. " The court, however,
noted that the support for the government's statement was " a provision in Directive No. 25, which
states that, prior to taking any action to abate tree hazards, a review
of resource issues should be made
considering the various environmental laws and the resources potentially impacted. "
In the opinion of the court, this
statement reflected environmental
management of park resources and
had " nothing to do with posting
warnings. " As characterized by the
court, this statement " specifically
applies to the government's consideration of how best to abate the
hazard itself, for example, by pruning or repairing trees or closing endangered areas of the park. " Moreover, the court noted this statement
directives followed a separate instruction to " provide reasonable
public information about hazardous tree conditions. "
Accordingly, in the opinion of
the federal appeals court, " fulfilling the park's duty to inform visitors somehow about that risk does
not involve considerations of public policy " :
A decision not to warn of a
specific, known hazard for which
the acting agency is responsible is
not the kind of broader social, economic or political policy decision
that the discretionary function exception is intended to protect....A
failure to warn involves considerations of safety, not public policy.

Having found that the
discretionary function exception
did not apply to the duty of park
officials " to take some action
to abate a high-risk tree, " the
federal appeals court reversed
the district court's dismissal of
the families' negligence-based
claims and remanded (i.e., sent
back) this case to the federal
district court to conduct further
proceedings.
As a result, the federal appeals
court held: " the discretionary function exception does not bar the
families' claim that the government
negligently failed to give park visitors any warning about the tree. "

Going Back to Trial
Having found that the discretionary function exception did not apply to the duty of park officials " to
take some action to abate a high-risk
tree, " the federal appeals court reversed the district court's dismissal
of the families' negligence-based
claims and remanded (i.e., sent
back) this case to the federal district
court to conduct further proceedings. On remand, the federal district
court would conduct a trial to determine whether park officials " knew
or should have known of the danger
posed by the tree, but negligently
failed to abate that danger and to
warn campers about it. "

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate
Professor in the School of Sport, Recreation and Tourism at
George Mason University (jkozlows@gmu.edu). Webpage with
link to law review articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

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January 2020 - Parks & Recreation

Table of Contents for the Digital Edition of January 2020 - Parks & Recreation
