Wilderness Visitor Liability Management Guide

1. This document is contained within the Visitor Use Management Toolbox on Wilderness.net. Since other related resources found in this toolbox may be of interest, you can visit this toolbox by visiting the following URL: http://www.wilderness.net/index.cfm?fuse=toolboxes&sec=vum. All toolboxes are products of the Arthur Carhart National Wilderness Training Center.

2. Risk Management Liability for Visitors in Wilderness Areas

3. Two Fundamental Laws • Wilderness Act • (with which you are now very familiar!) • Federal Tort Claims Act • Passed in 1946 • Says that the government shall be liable in the same way and to the same extent as a private individual in the state where the injury occurred.

4. Careful execution of a statute or regulation (such as the Wilderness Act, or following policy directives from Wilderness Management Plan) Exercise of a discretionary function (What’s Discretionary? Can’t decide not to maintain a man-made fixture, or to repair with duct tape) With two exceptions

5. Acts that are Discretionary. . . • Involve an element of judgment or choice. • When a statute, regulation, or policy specifically prescribes a course of action for an employee to follow, the employee has no option but to adhere to the directive and his/her conduct is not discretionary.

6. Dwyer v. U.S. (1999) • Christina Dwyer, hiking in White Mountain National Forest, set up camp in alpine zone. • Ranger Neely told them they would have to move; no camping above tree line. • Daylight fading, weather coming in, tired. • “Move.” No mention of nearby shelter hut. • Dwyer fell down Tuckerman Ravine headwall.

7. Result?

8. Dismissed because of discretionary function exception to FTCA • P’s argument: wilderness supervisor testified that rangers are “expected to consider various factors” in deciding whether to order someone off the vegetation or direct them to emergency shelter. • Dwyer said Neely was in violation of the mandatory policy to offer use of hut to hikers.

9. Defense arguments • No mandatory rule that instructed rangers to take any particular course of action. • Policy states that rangers exercise discretion in advancing Forest Service goals.

10. Other Cases • Cohen v U.S. and Hall v. U.S – visitor falls • Alef v. U.S. – decision not to post signs was “in accordance with statutorily-mandated policy. . .” • Wright v. U.S. – snag fell on trail in Wilderness • Kiehn v. U.S., Fang v. U.S, & Johnson v. U.S. claims that rescue was negligently undertaken • Wysinger v. U.S. – decision not to have a lifeguard on site protected by FTCA

11. On the other hand. . . • ARA Leisure Services v. U.S. – no discretion when road eroded • Mandel v. U.S. – visitor followed instructions of ranger (also Middaugh v. U.S.) • Soto v. U.S. – gov’t. 75% responsible for diving accident injuries (but see Judd v. U.S.and Alef v. U.S. and compare).

12. Common Law Negligence • Only if exceptions to FTCA don’t apply • The law of the state where the accident happened • Basically applies a “reasonable person” standard to what government employee did or didn’t do which caused the injury

13. Must Prove Four Elements • Duty for defendant to protect plaintiff • Breach of that duty • Injury • Connection between the failure to protect the plaintiff and the injury that he/she incurred

14. When would there NOT be a Duty? • Plaintiff was not on agency property • Plaintiff was trespassing • Plaintiff violated rules or law • Act of God (e.g.earthquake) • Open and obvious hazard

17. What constitutes a breach? • Failure to meet standards of profession • Failure to warn of known hidden hazard • Inadequate supervision or enforcement • Negligent maintenance of equipment or facility

25. What Causal Connection is Required? • Must be a connection between what you did or did not do and the person’s injury. • This is sometimes called the “but for” connection.

26. Significant Determinants for Cases • To what extent did the person contribute to his/her own injury? • How easy would it have been to prevent the injury? • How foreseeable was the injury?

27. Significant Determinants for Cases • Who created the hazard? • What was the “character of the area”? • How did the court perceive the agency’s behavior? (e.g., professionally handled or fundamentally negligent and sloppy)

28. The Bottom Line? • Manage Wilderness as Wilderness • Develop policies which favor the natural characteristics and features of the resource rather than the protection of visitors. • Inform visitors of your policies. • Verbally inform superiors of unreasonable hazards. • Let the lawyers worry about the rest.