If a Tree Falls on Me in a National Forest, Will a Court Hear It?

If a Tree Falls on Me in a National Forest, Will a Court Hear It?

Let’s pretend that it hasn’t been 5 months since I blogged…

I’m writing a section of my paper on torts, and as usual, I got distracted by something interesting. No, not internet kittens, although I am testing out WrittenKitten as a tool for giving incentives (pictures of puppies) to write. Anyways, after learning that the federal government is NOT responsible for torts under any theory of strict liability (the “sonic boom case” Laird v. Nelms 406 U.S. 797) I came across another interesting section of law: trees falling on people in national parks.

Autery v United States (992 F.2d 1523) is as good of a place as any to start.

“Decedent was killed when a black locust tree fell on his car as he drove through Great Smokey Mountain National Park (GSMNP). Appellees, the administratix of decedent’s estate and an injured passenger, brought a negligence action against appellant, the United States, under the Federal Tort Claims Act (FTCA), 28 U.S.C.S. §§ 1346(b),2674. The lower court held that appellant had negligently failed to devise, implement and follow an appropriate tree hazard management plan. Before the court was whether the alleged negligent conduct by appellant fell within the ambit of the discretionary function exception of the FTCA. The lower court’s decision was reversed, the judgment was vacated and the case was dismissed for lack of subject matter jurisdiction. The court held that the decisions made by GSMNP personnel in designing and implementing its unwritten tree inspection program fell within the ambit of the discretionary function exception (DFE) of the FTCA, 28 U.S.C.S. § 2680(a).”

The DFE struck again in Moon v United States (2008 U.S. Dist. Lexis 60676):

On June 27, 2003, Plaintiff entered Glacier National Park (“Glacier”) accompanied by her mother, daughter-in-law, and grandson. That afternoon, the family went to the beach in front of Lake McDonald Lodge. Plaintiff sat directly under a Black Cottonwood tree conversing with other park patrons and watching her grandson play near the lake. (Ct. Recs. 44 at 3; 34 at 2.) At approximately 4:00 p.m., a large branch broke off the Black Cottonwood tree and struck Plaintiff; she sustained fractures to her skull and vertebrae in her cervical, thoracic, and lumbar regions…herefore, part two of the discretionary function test is met and Defendant’s hazardous tree inspection, mitigation, and warning decisions are shielded from liability.

And once again in  Merando v United States (517 F.3d 160):

While driving through the Delaware Water Gap National Recreation Area, a tree fell onto Kaylyn and Kathleen Merando’s car, killing them both instantly. Anton Verdano brought an FTCA claim against the United States, as the park was managed by the National Park Service, a part of the Department of the Interior. He claimed that the government had negligently pruned them and not warned of the dangers.

“On review, the court noted that the National Park Service designed its hazardous tree management plan to identify which trees were hazardous. The relevant issue was whether the Park Service had discretion in formulating and executing that plan. The court concluded that the controlling statutes, regulations, and policies did not mandate any particular methods of hazardous tree management. In these circumstances, the district court correctly concluded that the discretionary function exception immunized the Government from a lawsuit based on its decisions regarding the maintenance of the park and the carrying out of that maintenance by the crew there.”

The list goes on and on, and the story is all the same, namely, the DFE immunizes “trees falling in national parks” suits.

Compare this to Hahn v Martin (1 Call. App. 4th 1448):

Respondents were injured when a palm tree or a giant bird of paradise tree fell on them when they were eating lunch in the courtyard by a farmer’s market. Respondents brought actions for negligence and strict liability against petitioner company who owned the farmer’s market and courtyard and provided the tables and chairs for public use..

With respect to premises liability the proper test to be applied is whether the landowner in the management of his property has acted as a reasonable man in view of the probability of injury to others…

Insofar as an invitee is concerned, the applicable general principle is that the possessor of the property is not an insurer of the invitee’s safety, but must use reasonable care to keep the premises in a reasonably safe condition and warn of any latent or concealed peril.

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Posted on October 8, 2012, in Uncategorized and tagged , , , , , , , , , , , . Bookmark the permalink. Leave a comment.

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