Kendra Summers, a Minor, and Frederick J. Summers, Guardian Ad Litem v. United States (1990)

Under the National 76 514 F.3d 989 , 998 (9th Cir. 2008). 77 453 F.3d 1140 , 1147 (9th Cir. 2006). 78 905 F.2d 1212, 1216 (9th Cir. 1990). 79 509 F.3d 1028, 1034 (9th Cir. 2007).

It is more nearly analogous to cases such as Summers v. United States, 905 F.2d 1212, 1215-16 (9th Cir.1990), holding that the discretionary function exception did not protect the Park Service where it had failed to warn visitors of the danger of stepping on hot coals in a fire ring in the Golden Gate National Recreation Area.

See Gaubert, 499 U.S. at 322 , 111 S.Ct. 1267 (rejecting application of the exception when the "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive" (internal quotation marks omitted)); Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990) (explaining that a government official's failure to take a required action "would not be covered und…

Sutton v. Earles, 26 F.3d 903, 907 (9th Cir.1994); Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990).

Sutton v. Earles, 26 F.3d 903, 907 (9th Cir.1994); Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990).

Prescott, 973 F.2d at 703 (quoting Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990)).

Id. (quoting Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990)).

See Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 , 108 S.Ct. 1954, 1958 , 100 L.Ed.2d 531 (1988); Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990).

See Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 , 108 S.Ct. 1954, 1958 , 100 L.Ed.2d 531 (1988); Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990).

For example, in Summers v. United States, the plaintiffs alleged that the government had failed to warn visitors at Rodeo Beach of the hazards of stepping on hot coals at the beach’s fire pits. 905 F.2d 1212, 1214 (9th Cir. 1990).

In Summers, the plaintiffs alleged that the government had failed to warn visitors at Rodeo Beach of the hazards of stepping on hot coals at the beach’s fire pits. 905 F.2d 1212, 1214 (9th Cir.1990).

It is more nearly analogous to cases such as Summers v. United States, 905 F.2d 1212, 1215-16 (9th Cir.1990), holding that the discretionary function exception did not protect the Park Service where it had failed to warn visitors of the danger of stepping on hot coals in a fire ring in the Golden Gate National Recreation Area.

It is more nearly analogous to cases such as Summers v. United States, 905 F.2d 1212, 1215-16 (9th Cir. 1990), holding that the dis- cretionary function exception did not protect the Park Service where it had failed to warn visitors of the danger of stepping on hot coals in a fire ring in the Golden Gate National Recre- ation Area.

See Gaubert, 499 U.S. at 322 (rejecting application of the exception when the “fed- BOLT v. UNITED STATES 15607 eral statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive” (internal quotation marks omitted)); Summers v. United States, 905 F.2d 1212, 1214 (9th Cir. 1990) (explaining that a government official’s failure to take a required action “would not …

It is more nearly analogous to cases such as Summers v. United States, 905 F.2d 1212, 1215-16 (9th Cir.1990), holding the discretionary function did not protect the Park Service where it had failed to warn visitors of the danger of stepping on hot coals in a fire ring in the Golden Gate National Recreation Area.

It is more nearly analogous to cases such as Summers v. United States, 905 F.2d 1212, 1215-16 (9th Cir.1990), holding the discretionary function did not protect the Park Service where it had failed to warn visitors of the danger of stepping on hot coals in a fire ring in the Golden Gate National Recreation Area.

For the exception to apply, the government must prove that (1) the challenged conduct involves an element of judgment or choice; and (2) the judgment or choice is the type the discretionary function exception was designed to shield, see Berkovitz v. United States, 486 U.S. 531, 536-37 , 108 S.Ct. 1954 , 100 L.Ed.2d 531 (1988), that is, one based on “social, economic, or political policy.” See Summers v. United States, 905 F.2d 1212, 1215 (9th Cir.1990).

In three cases concerning injuries resulting from the government’s failure to post warnings concerning hazards present in national parks, we held that the government’s decision not to post signs warning of obvious dangers such as venturing off marked trails to walk next to the face of a waterfall, and the government’s decision to use brochures rather than posted signs to warn hikers of the dangers of unmaintained trails, involved the exercise of policy judgment of the type C…

In three cases concern- ing injuries resulting from the government’s failure to post warnings concerning hazards present in national parks, we held that the government’s decision not to post signs warning of obvious dangers such as venturing off marked trails to walk next to the face of a waterfall, and the government’s decision to use brochures rather than posted signs to warn hikers of the dangers of unmaintained trails, involved the exercise of policy judgment of the type…

See also Seyler v. United States, 832 F.2d 120, 123 (9th Cir.1987) (failure to place speed limit sign on reservation road not a policy judgment and thus not covered by discretionary function exception); Faber v. United States, 56 F.3d 1122, 1127-28 (9th Cir.1995) (applying same analysis to failure to post warning sign by waterfalls); Summers v. United States, 905 F.2d 1212, 1215 (9th Cir.1990) (applying same analysis to failure to post warning signs after allowing for beach …

See also Seyler v. United States, 832 F.2d 120, 123 (9th Cir. 1987) (failure to place speed limit sign on reservation road not a policy judgment and thus not covered by discretionary function exception); Faber v. United States, 56 F.3d 1122, 1127-28 (9th Cir. 1995) (applying same analysis to failure to post warning sign by waterfalls); Summers v. United States, 905 F.2d 1212, 1215 (9th Cir. 1990) (applying same analysis to failure to post warning signs after allowing for bea…

See Blackburn, 100 F.3d at 1434 (visitor enjoyment, preservation of historical features, avoiding intrusions, protection of wildlife); Valdez, 56 F.3d at 1180 (maximizing access and preservation of natural resources versus the need to minimize potential safety hazards); Childers, 40 F.3d at 976 (access versus safety). 36 The Millers point to Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990), for the proposition that safety is not a consideration based on policy.

The Millers point to Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990), for the proposition that safety is not a consideration based on policy.

See also Berkovitz v. United States, 486 U.S. 531, 536-39 , 108 S.Ct. 1954, 1958-60 , 100 L.Ed.2d 531 (1988); Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990).

We so held in Summers v. United States, 905 F.2d 1212, 1215-17 (9th Cir.1990).

We so held in Summers v. United States, 905 F.2d 1212, 1215-17 (9th Cir.1990).

Dist. v. United States, 880 F.2d 1018 (9th Cir.1989), in which it held that FTCA liability attached to the government’s conduct “because there was no evidence of policy judgment in the government’s negligent failure to remove certain unsuitable materials during construction of the canal.” Summers, 905 F.2d at 1216 (discussing Kenneivick).

“In accordance with the Supreme Court’s decision in Berkovitz , this court utilizes a two-step test to determine whether the FTCA discretionary function exception applies in a given case.” Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990) (citation omitted).

“In accordance with the Supreme Court’s decision in Berkovitz , this court utilizes a two-step test to determine whether the FTCA discretionary function exception applies in a given case.” Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990) (citation omitted).

See id., 111 S.Ct. at 1279 (noting that the discretionary function exception is not restricted to acts of negligence which occur in the course of establishing broad policies, but also protects decisions by regulators exercising day-to-day supervisory authority); Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990).

Summers v. United States, 905 F.2d 1212, 1214 (9th Cir. *768 1990); Kennewick, 880 F.2d at 1025. 5 First, the -court must determine “whether the challenged action is a matter of choice for the acting employees.” Summers, 905 F.2d at 1214 .

Summers, 905 F.2d at 1216 (failing to warn of hidden hot coals at a national recreation area resembled more a departure from safety considerations, rather than a mistaken judgment in a matter concerning political, social, or economic policy).

Discretionary Function Test Following the Supreme Court’s decision in Berkovitz v. United States, 486 U.S. 531 , 108 S.Ct. 1954 , 100 L.Ed.2d 531 (1988), the Ninth *1548 Circuit Court of Appeals adopted “a two-step test to determine whether the FTCA discretionary function exception applies in a given case.” Summers v. United States, 905 F.2d 1212, 1214 (9th Cir.1990) (citation omitted).

As to the public policy considerations, the Valdez court added 26 that only “‘where the challenged governmental activity involves safety considerations under an 27 established policy, rather than the balancing of competing policy considerations, the rationale for 1 at 1180 (emphasis added) (quoting Summers v. United States, 905 F.2d 1212, 1215 (9th Cir. 2 1990), quoting ARA Leisure Services v. United States, 831 F.2d 193, 195 (9th Cir. 1987)).

This is because “‘a failure to effectuate policy choices already made’ will not be protected under the discretionary function exception.” Bear Med., 241 F.3d at 1215 (quoting Camozzi v. Roland/Miller and Hope Consulting Grp., 866 F.2d 287, 290 (9th Cir. 1989)); see also Summers v. United States, 905 F.2d 1212, 1215 (9th Cir. 1990) (“[W]here the challenged governmental activity involves safety considerations under an established policy, rather than the balancing of competing …

Whisnant v. United States, 8 400 F.3d 1177 , 1183 n.3 (9th Cir. 2005); see also Summers v. United States, 905 F.2d 1212 , 1216 9 (9th Cir. 1990) (“[L]iability for negligence may be imposed where, as here, the governmental 10 decision involved is found not to be grounded in economic, political, or social judgment.”); Gotha 11 v. United States, 115 F.3d 176 , 181–82 (3d Cir. 1997) (observing that the discretionary function 12 exception is not meant to apply to “mundane, admini…

June 21, 2011) (quoting Summers v. United States, 905 F.2d 1212, 1215 (9th Cir. 1990)).

See, e.g., Duke v. Dep’t of Agric., 131 F.3d 1407 , 1412 (10th Cir.1997) (discretionary function exception did not apply where the court’s “review of the record reveals no evidence by the government of any social or political justification” but instead “simply relies on the presumption that there was some policy reason for the failure to do anything at the site” of the plaintiffs injury); Summers v. United States, 905 F.2d 1212, 1215 (9th Cir.1990) (“There is no evidence, ho…

In three cases concerning injuries resulting from the government’s failure to post warnings concerning hazards present in national parks, we held that the government’s decision not to post signs warning of obvious dangers such as venturing off marked trails to walk next to the face of a waterfall, and the government’s decision to use brochures rather than posted signs to warn hikers of the dangers of unmaintained trails, involved the exercise of policy judgment of the type C…

In three cases concerning injuries resulting from the government’s failure to post warnings concerning hazards present in national parks, we held that the government’s decision not to post signs warning of obvious dangers such as venturing off marked trails to walk next to the face *695 of a waterfall, and the government’s decision to use brochures rather than posted signs to warn hikers of the dangers of unmaintained trails, involved the exercise of policy judgment of the t…

In three cases concerning injuries resulting from the government's failure to post warnings concerning hazards present in national parks, we held that the government's decision not to post signs warning of obvious dangers such as venturing off marked trails to walk next to the face of a waterfall, and the government's decision to use brochures rather than posted signs to warn hikers of the dangers of unmaintained trails, involved the exercise of policy judgment of the type C…

In three cases concerning injuries resulting from the government’s failure to post warnings concerning hazards present in national parks, we held that the government’s decision not to post signs warning of obvious dangers such as venturing off marked trails to walk next to the face of a waterfall, and the government’s decision to use brochures rather than posted signs to warn hikers of the dangers of unmaintained trails, involved the exercise of policy judgment of the type C…

Faber v. United States, 56 F.3d 1122, 1124 (9th Cir.1995)(failure of forest service to warn about diving accidents despite federal policy promulgated to respond to such accidents); Summers v. United States, 905 F.2d 1212, 1216 (9th Cir.1990)(failure of park service to warn of danger of stepping on hot coals after fire rings were permitted on public beach).

See Maalouf, 208 F.Supp.2d at 37-38 (holding that Swiss Embassy’s failure to warn about a guide wire on a tree that caused a sledding accident was not grounded in public policy); see also, e.g., Cestonaro, 211 F.3d at 755-59 (National Park Service’s failure to warn about the dangers associated with parking in a poorly-lit lot in which previous crimes had been committed); Duke v. Dep’t of Agric., 131 F.3d 1407 (10th Cir.1997) (Forest Service’s failure to post signs warning of…

In Summers v. United States, 905 F.2d 1212, 1216 (9th Cir.1990), the Ninth Circuit found that the discretionary function exception did not apply to the NPS’s failure to warn of hot coals on a park beach because the evidence clearly showed that consideration of visitor safety was not a consideration in the formulation of policy on fire rings in beach areas.

Governmental activity “is not necessarily shielded from suit simply because a discretionary function is in some way involved.” Summers v. United States, 905 F.2d 1212, 1215 (9th Cir.1990).

New York State Dept. of Health v. Andrulonis, 112 S.Ct. 2992 (1992); Summers v. United States, 905 F.2d 1212, 1215 (9th Cir. 1990).

Thus, he asserts that the instant case is akin to those in which courts have held that the National Park Service is not shielded from liability where the challenged conduct “involves safety considerations under an established policy, rather than the balancing of competing policy considerations.” Summers v. United States, 905 F.2d 1212, 1215 (9th Cir.1990) (quoting ARA Leisure Services v. United States, 831 F.2d 193, 195 (9th Cir.1987)).

Id. at 1215.

See Summers v. United States, 905 F.2d 1212, 1215 (9th Cir. 1990) 6 (“[W]here the challenged governmental activity involves safety considerations 7 under an established policy, rather than the balancing of competing policy 8 considerations, the rationale for the exception falls away and the U.S. will be 9 responsible for the negligence of its employees.” (internal quotations and citations 10 omitted)); see also Marlys Bear Med., 241 F.3d at 1215 (“[A] general statutory duty …