Schell v. United States

1

Harold John Schell, Plaintiff, v. United States of America, Defendant.

No. 1:20-cv-01737-KJM-EPG

United States District Court, E.D. California

August 29, 2024

ORDER

Plaintiff Harold John Schell brings this action under the Federal Tort Claims Act against the United States of America for injuries he suffered at the Silver Lake Boat Launch in the Inyo National Forest. The United States moves to dismiss the complaint for lack of subject matter jurisdiction, or alternatively for summary judgment. For the reasons below the court denies the motion.

I. BACKGROUND

The following facts are undisputed and supported by the record unless otherwise noted.

A. The Silver Lake Boat Launch

The Inyo National Forest spans 1.9 million acres. Mot. Reif Decl. ¶ 4, ECF No. 73-3. The forest is divided into four districts-Mono Lake, Mammoth, White Mountain and Mount Whitney. Id. ¶ 5. The North Zone encompasses Mono Lake and Mammoth and includes Silver Lake Boat Launch. Id. ¶¶ 4-5, 21. At all relevant times, Silver Lake Boat Launch was open to the public. Id. ¶ 22; Schell Dep. 99:7-16.^[1] The Forest Service did not charge a fee for permission to enter the site, nor did it expressly invite any persons to come to the area. Mot. Reif Decl. ¶¶ 22-23.

At all the relevant times, there was only one full-time Forest Service employee for the entire North Zone, the Assistant Recreation Officer. See id. ¶¶ 2, 9. In addition, the Forest Service hires seasonal employees called recreation technicians (Rec Techs), who work during the summer and the fall. Id. ¶ 26. The primary responsibility for Rec Techs is to empty trash and clean restrooms at the recreation sites in the North Zone. Id. ¶ 27. “On an ad hoc basis and as their workload permits, Rec Techs are expected to observe and assess any damaged property or hazards or other issues of concern, and to receive complaints or comments from visitors regarding the same.” Id. ¶ 28. Rec Techs prioritize areas intensively used by visitors, such as picnic areas, and sites that typically require an entrance fee. Id. ¶ 29. They also prioritize “imminent and significant hazards at recreation sites[.]” Id. ¶ 30.

In 2013, the Forest Service removed a damaged boarding float-the moniker used to describe the concrete dock-at Silver Lake Boat Launch. Mot. Gamino Decl. ¶¶ 8-9, ECF No. 73-11. After receiving complaints from recreational users regarding the removal of the boarding float, the Forest Service started working with the California Department of Boating and Waterways to update and rehabilitate Silver Lake Boat Launch. Id. ¶¶ 8-11. The first phase focused on replacing the boarding float, and this phase was completed in August 2017. Id. ¶ 13. The second phase, which was underway at the relevant times, is focused on updating and rehabilitating the site, including by demolishing and replacing the existing boat ramp, building vault-toilets and sidewalk, resurfacing and restriping the parking lot, and relocating the boarding float. Id. ¶¶ 14-17.

B. Forest Service Manual

The Forest Service Manual “contains legal authorities, objectives, policies, responsibilities, instructions, and guidance needed on a continuing bases [sic] by Forest Service line officers and primary staff to plan and execute assigned programs and activities.” Mot. Reif Decl. ¶ 10. Objectives of the Manual include: “[m]aximiz[ing] opportunities for visitors to know and experience nature while engaging in outdoor recreation,” developing and maintaining sites “consistent with the available natural resources to provide, to the extent practicable, a safe, healthful, esthetic, non-urban atmosphere,” and evaluating and mitigating natural hazards “as appropriate and practicable[.]” Forest Service Manual (FSM) § 2330.2, Mot. Reif Decl. Ex. 1, ECF No. 73-4. Several policies guiding Forest Service employees include prioritizing “public health and safety concern,” considering cost efficiency, and utilizing risk management assessment to make informed decisions. Id. § 2330.3. Other policies include: “[l]imit[ing] regulation, constraints], and supervision of recreational use to the minimum necessary for resource protection, visitor satisfaction, and safety.” Id. § 2331.03(3). In addition, in determining whether to close a site, the Forest Service is directed to “[m]ake every effort to stretch funds as far as possible to keep needed sites and facilities open to public use.” Id. § 2331.5(2). As part of this effort, the Forest Service should consider temporary closures, use of volunteers, and the “users' health and safety and level of resource damage.” Id. Health and safety items must be given the highest priority. Id. § 2332.

In the section entitled “Public Safety,” the Manual provides: “[a]ll outdoor recreation activities on National Forest System (NFS) lands . . . have inherent risks due to the natural setting in which they occur.” Id. § 2332.1. “Individuals engaging in outdoor recreational activities on NFS lands assume these inherent risks.” Id. However, the Manual provides the Forest Service should, “[t]o the extent practicable, eliminate safety hazards from developed recreation sites.” Id. Also, it should “[i]nspect each public recreation site annually before the beginning of the managed-use season.” Id. “Maintain a record of the inspections and corrective actions taken with a copy of the operation and maintenance plan.” Id. And “[immediately correct high-priority hazards that develop or are identified during the operating season or close the site.” Id. The Manual further states “[f]orest personnel should conduct periodic risk assessment as necessary to identify hazards, set priorities, allocate resources, implement action plans, and reassess effectiveness or risk reduction activities as appropriate, feasible, and consistent with Forest Service policy.” Id. § 2332.11. “Based on the findings of the risk assessments, Responsible Officials^[2] should consider reasonable measures, within available resources, to mitigate those risks.” Id. However, “[i]in considering these measures, Responsible Officials should balance public recreation and safety with management of the natural, historic, or cultural settings in a manner that does not fundamentally alter that setting.” Id. Additionally, the Manual directs the Forest Service to “[m]aintain all improvements to the standard to which originally constructed or subsequently improved or modified,” and to “[s]chedule light or current maintenance . . . during the recreation season[.]” Id. § 2332.5

C. The Incident

On September 27, 2018, plaintiff went to Silver Lake Boat Launch to fish on the lake. Schell Dep. 94:19-95:3. On his way from the lake shore to his car, plaintiff's left foot slipped on a black, tarp-like material^[3] between the edge of the pavement of the parking lot and a set of wooden stairs; the tarp extends some distance on either side of top of the stairs. Id. 71:15-18, 73:5-13, 113:10-17; see also Photos, Reif Decl. Ex. 5, ECF No. 73-8 (with one photo incorporated into this order below). Plaintiff's right foot then hit the pavement, causing him to fall forward. Id. 71:18-22, 113:13-17. As he ran forward to “right” himself or “break” himself, he tripped on something solid on the pavement and then hit his head on the running board of his truck. Id. 71:15-72:4, 73:18-74:17, 75:21-76:6. Among other injuries, he broke his neck. See, e.g., id. 71:15-74:10. In walking up to his car, plaintiff did not use the wooden stairs; rather he walked on the side of the stairs because the stairs moved and he was afraid to use them. Id. 69:9-23, 71:6-10, 112:13-113:9. He testified “I looked at [the set of stairs] and I knew right away that the thing had not been maintained and it's a hazard.” Id. 109:20-21.

The wooden stairs connect the parking lot to an area where there is a picnic table, located on the right side of the stairs when facing the parking lot. See Photos. Currently employed Forest Service staff do not appear to know the origins of the wooden steps or anything about their maintenance schedule. See Gamino Dep. 105:19-25, Mot. Frueh Decl. Ex. 11, ECF No. 73-19.

[Image Omitted]

See Photos (photo of tarp, wooden stairs, pavement and picnic table).

Prior to plaintiff's accident, there is no evidence in the record of other personal injuries occurring in this location. See, e.g., Mot. Casey Decl. ¶¶ 4-5, ECF No. 73-13 (declaring no administrative claims concerned Silver Lake boat launch); Mot. Reif Decl. ¶¶ 32-35; Mot. Mason Decl. ¶¶ 3-6, ECF No. 73-10; Mot. Gamino Decl. ¶¶ 24-28. The Forest Service Public Affairs Office, which “occasionally receives complaints from the public about [Forest Service] facilities,” did not receive any complaints about the stairs or the area leading to the picnic table. Gamino Decl. ¶ 24; Gamino Dep. 90:20-91:16. There is also no evidence any Forest Service employee was aware of the presence of the tarp-like material. See, e.g., Mot. Reif Decl. ¶¶ 31-35; Mason Decl. ¶¶ 3-6; Gamino Decl. ¶¶ 24-28. However, the Forest Service was aware in 2016 that Silver Lake Boat Facility was in “poor condition” with “many cracks with vegetation growth” in the existing parking area where plaintiff was injured, which would continue to deteriorate if unattended. Project Grant Agreement at 92,^[4] Opp'n Ucros Decl. Ex. 3, ECF No. 75-1. Defendant knew the “lake is popular with those seeking outdoor recreational opportunities,” id., and that failure to repair Silver Lake Boat Launching Facility would “result in operation under a state of disrepair [and] possible closure due to unsafe infrastructure,” id. at 105.

D. Procedural History

After exhausting his administrative remedies, plaintiff filed this action under the Federal Torts Claims Act (FTCA) against the United States of America acting by and...