United States District Court, D. Utah, Central Division
KIM WICKENHEISSER and RONALD WICKENHEISSER, husband and wife, Plaintiffs,
UNITED STATES OF AMERICA Defendant.
MEMORANDUM DECISION AND ORDER
the Court is Defendant's Motion for Summary Judgment.
[Dkt. 23]. The motion has been fully briefed and a hearing
was held before the Court on June 5, 2017. Plaintiffs were
represented at the hearing by Charles Conrad and the United
States was represented by John Mangum. Based on the
parties' written and oral arguments, as well as the
relevant facts and the law, the Court enters the following
camping in Zion National Park on October 9, 2011, 56 year-old
Kim Wickenheisser tripped over an uncovered irrigation ditch
and fell as she was walking on a dirt path toward a restroom
at 11:00 p.m. She was walking from campsite #33 in loop
B of the Watchman Campground, where the Wickenheissers had
twice camped before this incident. For decades, the campsite
has had numerous irrigation ditches dug into the soil to
provide water for the trees.
path Mrs. Wickenheisser was on when she fell was one of three
short user-created social trails, not a trail built or
maintained by the Park Service. She could see light coming
from the restroom that was shining down the path in front of
her. She was wearing a headlamp turned to its brightest
setting. While she was generally aware of the irrigation
ditches in the campground, she did not realize what the ditch
was as she approached it. The ditch was about 8-14 inches
deep and approximately one foot wide. Plaintiff stepped into
the ditch and fell, sustaining injuries to the tendons in her
left leg, later requiring surgery.
Wickenheisser's fall was the only one the Park Service is
aware of in that area. Before the incident, the Park began
planning to replace this particular aging restroom with a new
one that would have cement walkways leading to it from the
campground roads on both sides. The renovation included
replacing and eliminating the social paths that approached
the restroom from the rear. The plan also included
reconstructing the irrigation ditches in underground pipes or
culverts. The renovation was completed in December of 2012.
Wickenheissers filed this action against the United States
alleging three causes of action: two claims of negligence and
one claim of loss of consortium by Ronald Wickenheisser.
United States moves for summary judgment on the basis that
Plaintiffs' claims are barred by the discretionary
function exception to the Federal Tort Claims Act waiver of
sovereign immunity. Plaintiffs argue that the discretionary
function exception does not apply to the facts of this case.
well settled that the United States, as a sovereign entity,
“is immune from suit save as it consents to be sued . .
.and the terms of its consent to be sued in any court define
that court's jurisdiction to entertain that suit.”
Lehman v. Nakshian, 453 U.S. 156, 160 (1981)
(quoting United States v. Testan, 424 U.S. 392, 399
(1976)). Suit against the United States can only be
entertained when Congress has specifically waived the United
States' immunity. Id. Such waivers of sovereign
immunity cannot be implied; they must be unequivocally
expressed. See Franconia Assocs. v. United States,
536 U.S. 129, 141 (2002).
Federal Tort Claims Act (FTCA) is a limited waiver of the
United States' sovereign immunity. The FTCA's waiver
of immunity is limited to causes of action against the United
States arising out of certain torts committed by federal
employees acting within the scope of their employment.
See United States v. Orleans, 425 U.S. 807, 813
(1976). The FTCA waiver is subject to a number of exceptions.
Id. at 813. These exceptions are to be
“strictly observed and exceptions thereto are not to be
implied.” Lehman, 453 U.S. at 160 (quoting
Soriano v. United States, 352 U.S. 270, 276 (1957)).
the exceptions to the jurisdiction granted by the FTCA is the
discretionary function exception. 28 U.S.C.§ 2680(a).
See United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 809 (1984).
The burden is on plaintiffs to prove that their claims are
not based upon actions immunized from liability under the
discretionary function exception. See Elder v. United
States, 312 F.3d 1172, 1176 (10th Cir. 2002).
discretionary function exception precludes the imposition of
liability against the United States for conduct “based
upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a
federal agency or employee of the Government, whether or not
the discretion involved be abused.” 28 U.S.C. §
2680(a). The exception applies regardless of whether the
government agent was negligent in his duties, so long as his
duties were discretionary. See Dalehite v. United
States, 346 U.S. 15, 32 (1953); Lopez v. United
States, 376 F.3d 1055, 1057 (10th Cir. 2004).
discretionary function exception is a threshold
jurisdictional issue. Elder, 312 F.3d at 1176.
Because the waiver of sovereign immunity is jurisdictional,
the court lacks subject matter jurisdiction over a claim that
falls within the discretionary function ...