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Wickenheisser v. United States

United States District Court, D. Utah, Central Division

June 19, 2017

KIM WICKENHEISSER and RONALD WICKENHEISSER, husband and wife, Plaintiffs,


          Dee Benson, Judge

         Before 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 Order.


         While 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.[1] 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.

         The 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.

         Mrs. 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.

         The 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. [Dkt. 4].

         The 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.


         It is 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).

         The 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)).

         One of 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).

         The 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).

         The 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 ...

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