Metropolitan News-Enterprise


Thursday, August 30, 2007


Page 1


Panel Allows Suit in Fall Off Cliff on Federal Land


By a MetNews Staff Writer


A man who fell off a cliff at a Northern California campground operated by the Army Corps of Engineers can sue the government under the Federal Torts Claims Act, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel reversed a district judge’s ruling that the “discretionary function” exception to federal liability under the act applied, allowing Ricardo Navarette to proceed with his action.

Navarette suffered severe injuries in 1997 when he fell 30 feet from the cliff near Lake Sonoma. He alleged that staff at the Liberty Glen Campground were negligent in failing undertake safety precautions after a “use path” had developed that led directly from his campsite to the cliff’s edge. He sued in 2004.

Opposing the government’s motion for summary judgment, the plaintiff presented evidence that rangers at the campground had known for years about the path but had done nothing to warn campers about the dangerous drop off, even though they held regular safety meetings.

U.S. District Judge Jeffrey White of the Northern District of California granted the motion, concluding that the ACE staff had discretion as to what safety precautions to take at the park.

But Judge Raymond C. Fisher, writing for the appeals court, noted that the corps had adopted a “Lake Sonoma Safety Plan,” which included instructions that dangerous conditions “such as properly fenced or marked.” Compliance with the plan was mandatory, not discretionary, the judge explained, given the specificity of the instructions.

Fisher rejected the contention that because the corps adopted an engineering manual containing more general guidelines, the more specific requirements of the safety plan were discretionary. He noted that the manual generally provides that fencing and signs be installed where necessary, and that it is clear from the safety plan that the drop-off where Navarette was injured was “in that ‘necessary’ category.”

The corps, Fisher reasoned, had discretion to determine how to mark or fence drop-offs, but not on whether to do so. “When Navarette fell over the cliff, however, the government had not warned campers about the drop-off in any way,” he explained.

Senior Judge Procter Hug Jr. concurred in the opinion.

Judge Pamela Rymer dissented, arguing that the safety plan only cited drop-offs as an example of a condition that might be dangerous, and did not constitute a judgment that all drop-offs were dangerous. The corps, she argued, had discretion to determine whether the drop-off where Navarette fell was dangerous.

She distinguished Soldano v. United States, 453 F.3d 1140, in which the Ninth Circuit last year rejected a discretionary function defense to a suit in which the Park Service was charged with having negligently set a 35 mph speed limit for a road on which the plaintiff was involved in an accident.

The Park Service, Rymer explained, was subject to a specific standard that required it to set a lower speed limit when the actual minimum stopping-sight distance was less than 225 feet. Because the provisions of the Lake Sonoma Safety Plan were not “embodied in a specific and mandatory regulation,” Rymer wrote, “I would hold as the district court did, that discretion was not erased by the Safety Plan or any language in the Engineering Manual.”

The case was argued in the Ninth Circuit by Emeryville lawyer Amitai Schwartz for the plaintiff and by Assistant U.S. Attorney Owen P. Martikan of the Northern District of California for the government.

The case is Navarette v. United States, 05-16915.


Copyright 2007, Metropolitan News Company