concluding that Army’s obligation to “properly mark[ ] or fence[ ]” dangerous conditions was mandatory and explaining that it “retained discretion as to how to mark or fence drop-offs, but that does not mean it retained discretion whether to do so”
How later courts described this case
- concluding that Army’s obligation to “properly mark[ ] or fence[ ]” dangerous conditions was mandatory and explaining that it “retained discretion as to how to mark or fence drop-offs, but that does not mean it retained discretion whether to do so”
- holding that United States not immune because decision to warn involved “safety considerations under an established policy, rather than the balancing of competing policy considerations” (internal quotation marks omitted)
- holding that, even though the government “retained discretion as to how to mark or fence drop-offs,” it did not “retain[] discretion whether to do so”
- holding a “‘Guiding Principle’ [to maintain] health, safety, security and comfort” did not mandate government conduct
Written by the judges who cited it.
The opinion
RYMER, Circuit Judge,
dissenting:
I read the Safety Plan’s “dangerous terrain” provision differently from the majority, and therefore dissent. The Plan’s “Guideline’s Relative to Visitor Safety” states with respect to “Access area grounds” that “Dangerous terrain conditions, such as drop-offs, etc, will be properly marked or fenced.” As I read it, this part of the Plan’s checklist, which the Plan notes is only a guide, refers to drop-offs as an example of the kind of terrain condition that may be dangerous, not as a declaration that all drop-offs are dangerous. So construed, applying the Guideline involves a judgment as to whether a particular drop-off (or other condition of like nature) is actually dangerous.
I also disagree that this case is similar to Soldano v. United States, 453 F.3d 1140 (9th Cir.2006). There the plaintiff claimed, among other things, that the Park Service negligently set the speed limit for the road on which he had an accident. Id. at 1143 . The standards were quite specific: they allowed a speed limit of 35 m.p.h. only where the minimum, actual stopping-sight distance meets or exceeds 225 feet. Id. at 1148 . Given uncontradicted evidence that the stopping-sight distance was less than that, we held that the decision to set a speed limit at 35 m.p.h. was “circumscribed by objective safety criteria and was not the result of a policy decision of the kind protected by the discretionary function exception.” Id. at 1147 ; see also, e.g., ARA Leisure Servs. v. United States, 831 F.2d 193 , 195 (9th Cir.1987) (holding that the Park Service’s decision to design the Denali Park Road without guardrails was grounded in policy, but the failure to maintain a pass on that road to “conform to the original grades and alignments” and to be “firm, [and] of uniform cross section” as required by Park Service standards was not).
*920 As a safety standard operates to remove discretion under the first prong of the discretionary function test when the standard “is embodied in a specific and mandatory regulation or statute which creates clear duties incumbent upon the governmental actors,” Kennewick Irr. Dist. v. United States, 880 F.2d 1018 , 1026 (9th Cir.1989), I would hold as the district court did, that discretion was not erased by the Safety Plan or any language in the Engineering Manual.