842 F2d 1294 Abbott v. United States

842 F.2d 1294

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Jackie L. ABBOTT and Joyce J. Abbott, husband and wife,
individually and as guardian ad litum for Michael
A. Abbott, a minor; and Catherine M.
Dew, Plaintiffs-Appellants,
UNITED STATES of America, Defendant-Appellee.

No. 86-4195.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted: Feb. 4, 1988.
Decided: March 18, 1988.

Before JAMES R. BROWNING, Chief Judge, and NORRIS and O'SCANNLAIN, Circuit Judges.

view counter



Members of the Abbott family and a guest were seriously injured when their vehicle left a curve on a one-lane gravel road in the Gifford Pinchot National Forest in Washington. In their claim against the United States under the Federal Tort Claims Act (FTCA), the Abbotts allege their injuries were caused by the Forest Service's failure to warn drivers of the severity of the curve and to repair severe "washboarding" of the road's surface. After a four-day bench trial, the district court dismissed the action for lack of subject matter jurisdiction, concluding that the decisions which resulted in the lack of a warning sign and the failure to maintain the road's surface were discretionary decisions protected from tort liability by the discretionary function exception of the FTCA. 28 U.S.C. Sec. 2680(a)1 We reverse and remand.


The discretionary function exception bars FTCA claims based upon performance or non-performance of a discretionary function by a federal agency or employee. Its purpose is to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)


Two recent decisions of this court clarify application of the exception to claims that a government agency negligently maintained or marked a road. In ARA Leisure Services v. United States, 831 F.2d 193 (9th Cir.1987), victims of a bus accident in Alaska's Denali National Park alleged the bus left a mountain road because of the Park Service's failure to install guardrails and to repair the road. We held the decision not to install guardrails was grounded in social, economic and political policy, since the government showed "a clear link between this decision and Park Service policies requiring that roads be designed to be 'esthetically pleasing [and to] ... lie[ ] lightly upon the land utilizing natural support wherever possible." Id. at 195 (citation omitted). We also held, however, that the exception did not immunize the Service's failure to repair heavy erosion damage alleged to have caused the accident, since the Park Service's failure to maintain the road fell below its own standards. Id. We rejected the government's argument that the Park Service's failure to repair the road fell within the discretionary function exception because it resulted from spending priorities adopted to meet budgeting restrictions. We said: "The Park Service balanced the relevant policy considerations when it established its standards for graded roads. The allocation of funds among projects aimed at bringing Denali National Park roads up to the standards is not a decision 'of the nature and quality that Congress intended to shield.' ... To hold otherwise would permit the discretionary function exception to all but swallow the Federal Tort Claims Act. Budgetary constraints underlie virtually all governmental activity." Id. at 195-96 (citation omitted).


In Seyler v. United States, 832 F.2d 120 (9th Cir.1987), the plaintiff was injured in a motorcycle accident on a road maintained by the Bureau of Indian Affairs. The accident allegedly resulted from the Bureau's failure to install adequate warning signs. We held the plaintiff's claim was not barred by the discretionary function exception. We could "find nothing in the record to suggest that the BIA's failure to provide signs resulted from a decision 'grounded in social, economic or political policy.' ... Moreover, we doubt that any decision not to provide adequate signs would be 'of the nature and quality that Congress intended to shield from tort liability.' ... The same may be said for at least some other kinds of maintenance decisions. See ARA Leisure Services v. United States." Id. at 123 (citations omitted).


ARA Leisure Services precludes applying the discretionary function exception to the Abbotts' claim that the Forest Service failed to properly maintain the road. Standards adopted by the Forest Service required road maintenance when conditions warranted it. The Abbotts' claim rests upon the alleged failure of the Forest Service to provide such maintenance.


Both ARA Leisure Services and Seyler preclude applying the exception to the Abbotts' claim that the Forest Service failed to provide adequate warning signs. As early as 1967, the Forest Service's Sign Handbook required installation of warning signs "where needed in the interest of travelers' safety," (Ex 33, p. 2) and, at least since 1972, required the Forest Supervisor to undertake a study to determine "ultimate needs" for signs. Ex 28, p. 2. The Forest Service had neither conducted a sign study nor installed the minimum level of signs required by the Sign Handbook prior to the accident in 1982.

view counter

As was the case in Seyler, the record does not indicate the Forest Service's decision to delay making the study or installing signs on Road 54 were grounded in social, economic, or political policy. The only reason given for the delay is that the Forest Service faced funding constraints. As we concluded in ARA Leisure Services, the choices involved when an agency budgets appropriated funds are not the kind of decisions which the discretionary function exception was designed to protect.


In 1980, the Federal Highway Administration (FHWA) established deadlines for implementation of a 1978 Manual providing for Uniform Traffic Control Devices (MUTCD) on the nation's roads, including Forest Service roads. The Forest Service asserts it did not place a sign at the curve in question before 1982 because FHWA decided to delay full compliance with the requirements of the 1978 Manual until 1985. The decision to delay compliance with the 1978 Manual, the Forest Service contends, falls within the discretionary function exception. We need not reach that contention. The Government's argument does not explain why the Forest Service did not have in place the signs its regulations had required since 1967 "where needed in the interest of travelers' safety."




This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The Government also contends it is exempt from tort liability by Washington's Recreational Use Statute, RCW 4.24.210. The district court did not reach this issue and we do not address it