The opinion of the court was delivered by: RAYMOND DEARIE, District Judge
This action is brought by Isabel Cohen and her husband, Murray Cohen,
under the Federal Tort Claims Act, 28 U.S.C. § 2671, for personal
injuries sustained by Isabel Cohen as a result of her fall on the Gila
Cliff Dwellings Trail in New Mexico. Plaintiffs have alleged that
defendant was negligent in: (1) failing to repair a broken or eroded log
retainer bar; (2) allowing the trail to become covered with excess loose
gravel; (3) failing to erect handrails; and (4) failing to post
sufficient warnings along the trail. Defendant asserts the discretionary
function exception of 28 U.S.C. § 2680(a) as a defense and denies the
allegations of negligence under both the New Mexico. Recreational Use
Statute and an ordinary negligence standard.
The case was tried to the Court without a jury. Having reviewed the
trial testimony and the post-trial submissions of both parties, the
Court, based on the findings of fact which follow, concludes that
defendant is entitled to judgment.
In April of 1996, plaintiffs were vacationing in Arizona and New Mexico
with Ms. Cohen's two brothers, Alfred and Elliot Herman, and their niece,
Tama Herman. The party visited several national parks including the Grand
Canyon and the Painted Desert. On April 8, 1996, the Cohens and Ms.
Cohen's two brothers (Tama Herman departed early to return to New
York) visited the Gila Cliff Dwellings National Monument in New
Mexico. The park at Gila Cliffs consists of a nature trail and cliff
dwellings that were inhabited by the Mogollon Indians 700 years ago. The
cliff dwellings and the surrounding landscape became the Gila Cliff
Dwellings National Monument in 1907.
The trail at Gila Cliffs is a one mile loop, which begins at the
parking lot and crosses a footbridge over the Gila River. The trail is a
strenuous, rough path made up of native material, and it climbs mortar
stone steps and includes log retainer bars, which help to prevent soil
erosion. Tr. 97, 106, 163, 170. From the canyon bottom, it is
approximately 180 feet up to the cliff dwellings. Tr. 98. At the top of
the trail, there are walkways and paths so that visitors can tour the
cliff dwellings. The trail then conies down across a cliff face, to an
open dirt road, where it switches back down to the river, Tr. 163. The
whole trail takes about one hour to complete. Tr. 102.
At the time of plaintiffs' visit, there was no entrance fee to the
cliff dwellings, nor was there a fee charged to use the trail. All tours
at the Gila Cliff Dwellings are self-guided. A sign posted at the head of
the trail warns visitors of the strenuous, unpaved, rough nature of the
trail and advises visitors to wear proper footgear. Tr. 101-102. Attached
to the trail sign is a box which contains trail guide booklets that can
be borrowed or purchased by visitors for fifty cents. Tr. 102-103. The
trail guide contains a variety of information about the terrain of the
trail, such as its steepness, and it discusses how the trail and the
cliffs are preserved in as natural a condition as possible. Safety
information and precautionary measures are also discussed throughout the
guide. Tr. 103. All visitors have to pass both the sign and the trail box
before starting their
ascent to the cliffs.*fn1 Tr. 101.
Additional information about the trail at Gila Cliffs and the history
of the monument is available at the contact station and the visitors'
center. The contact station, located at the head of the trial, functions
as a mini-visitors center. Interpretive information about the monument
and its surroundings is available inside the station, and warnings and
other pamphlets are posted outside. Tr. 100. The visitors center is
located about one mile from the trail head. Tr. 99. It contains
additional information about the history of the area and the condition of
On April 8, 1996, the day of plaintiffs' visit, the weather was clear
and dry. Plaintiffs paid no admission fee to use the trail or to view the
cliff dwellings.*fn2 Upon entering the park, plaintiffs made their way
to the trail head. Ms. Cohen testified that she saw several signs near
the beginning of the trail, and when asked if she read the signs, she
stated "If there was print, I probably read it." Tr. 20. Mr. Cohen
similarly stated that he glanced at the signs, but "not in a very
detailed way." Tr. 50. Plaintiffs did not purchase a trail guide, and
although Elliot Herman testified that he purchased one, neither plaintiff
recalled reading or even seeing the guide the day of their visit. Tr.
21, 43, 46, 64. In fact, the first time Ms. Cohen ever saw the trail guide
when she received a copy of it along with the accident report. Tr.
After passing the warning sign and trail box at the head of the trail,
the party began their ascent to the cliff dwellings. Ms. Cohen, who was
wearing walking sneakers with treads, made the ascent without incident,
as did the rest of her party. Tr. 22. Once plaintiffs reached the top of
the trail, they leisurely toured the cliff dwellings. At the conclusion
of their tour, the party returned to the trail and started their descent
back to their car.
As plaintiff proceeded down the trail, she was talking with members of
her party, looking both up and down as she was walking, Tr. 41. Plaintiff
testified that the down portion of the trail was rather steep, and she
noted that there were no signs indicating the steep condition or warning
of broken log retainer bars. Tr. 30. At some point near the switchback
area, plaintiff felt her left foot sliding out from under her, and she
stated that her "right foot stopped at the log but there was no piece of
log for [her] left foot to stop at." Tr.31. Plaintiff recalled slipping,
twisting, and then falling. Tr. 30. There were no handrails on that
portion of the trail, so there was "nothing for [her] to have caught on
to when [her] foot twisted or when [she] slipped." Tr. 30. Plaintiff
broke her ankle as a result of the fall, and was unable to continue
walking on her own.
Immediately after her accident, plaintiff looked around to see what
caused her to slip and fall. Tr. 25. She testified that she "noticed that
the step in back of [her], that the piece of wood did not go all the way
across the span, across the width of the step, that a piece of wood, a
significant piece of wood was missing." Tr. 25. When asked if a piece of
the log retainer bar was broken, she stated "Was missing, yes." Tr. 31.
Plaintiff also noted loose gravel, rocks, and twigs on the trail.
Mr. Cohen, who was walking three or four feet behind Ms. Cohen, did
not see his wife fall, but he heard her scream. He looked up and she was
"crumbling in front of [him] and [he] sort of braced her, put [his]
hands under her as she fell. She fell back and [he] sort of set her down
calmly." Tr. 48. After his wife was on the ground, Mr. Cohen testified
that Ms. Cohen pointed to the area where she fell. He described it as a
"dirt gravel area . . . there was a piece of wood that was in disrepair.
It was in obvious disrepair. There was no piece going from the-on the
left side of the-the step coming down." Id.
Elliot Herman testified that he "sort of in [his] peripheral vision saw
her slip." Tr. 68. He stated that they were chatting, she twisted her
ankle, and then "she just went down, like straight down, like you would
sit down." Tr. 68. Mr. Herman did not recall any discussion about the
condition of the trail, either before plaintiff fell or after her
accident. He did, however, have a phone conversation with Ms. Cohen
before his deposition in which they discussed her accident. Tr. 68, 89.
During their conversation, Ms. Cohen talked about steps on the trail, but
she did not mention that one of the steps was broken. Tr. 69.
Alfred Herman took a picture of plaintiff seated on the trail shortly
after her fall. Tr. 26. During his deposition, Mr. Herman was asked to
circle the area in the picture where plaintiff fell. Notably, Mr. Herman
indicated an area different than the one described by plaintiff to be the
area where she fell. Tr. 84, 85; see also Defendant's Exhibit 3
annexed to Defendant's post-trial submission. Furthermore, when Mr.
Herman was asked if the log in the picture looked broken, he stated,
"What it looks like is, it doesn't extend all the way across the trail.
It was less broken, more eroded, I would say." Tr. 75. He continued to
say that "most" of the logs on the rest of the trail extended across the
path. Tr. 75.
Plaintiff remained seated on the trail, while her brother Elliot
Herman went to get assistance. As she was waiting for help, plaintiff
encountered a group of young people who were repairing the trail. Tr. 34.
When no one from Park Services came to help plaintiff, her brother
Elliot, along with several of the young people who were working on the
trail, assisted her down the rest of the trail. Tr. 34.
Once at the end of the trail, plaintiff returned to her van and
stretched her leg out in the back seat. Before she went to the hospital,
Gila Cliff Dwellings Ranger John Harding spoke with plaintiffs and
completed an incident report. See Defendant's Exhibit H.
Remarkably, the incident report makes no mention of a broken or eroded
log retainer bar; it merely reports that Ms. Cohen "felt that steepness
and slickness of trail caused the injury." Id.: see also Tr.
District Ranger and Park Superintendent, Sue Kozacek, learned of
plaintiff's accident the day after it occurred, on April 9, 1986. Several
maintenance workers at the park reported that plaintiff fell on the down
trail in the area of the switchback. Tr. 104, 105. After being advised of
the incident, Sue Kozacek and Site Manager Dennis Carruth conducted an
inspection of the entire down trail. When asked what their inspection of
the down trail revealed, Ms. Kozacek stated:
We saw a trail surface just as it always looked.
There didn't appear to be anything out of place.
In fact, we were really concentrating on trying to
find where this accident would have happened, so
we were very careful, in looking at the surface of
the trail, to see if there was anything out of
Tr. 107. She further testified that all of the retainer logs in the
area were in good condition and that none of the logs was broken, rotted,
or out of place. Id.
Ms. Kozacek also testified about the presence of loose gravel on the
trail. She stated that
loose gravel is part of the natural condition of the trail, and
that the trail was inspected once or twice daily. She noted that although
some loose gravel requires immediate sweeping, not all loose gravel
requires such immediate attention. Tr. 134. According to Ms. Kozacek,
immediate sweeping would only be necessary "[i]f there was a significant
amount of gravel on the trail, if there were large rocks on the trail, if
there were branches that had fallen." Id. She examined the
picture of the accident site taken by Alfred Herman and concluded that
the picture did not reveal a condition that required immediate sweeping.
David Karplus, an employee of the National Park Service and an expert
in trail maintenance and design, testified about the nature of the Gila
Cliff Dwellings trail and its construction. In 1994 and 1995, Mr. Karplus
spent several weeks at Gila Cliff Dwellings assessing the safety of the
trail and the necessity of certain repairs, including re-routing portions
of the down trail. Tr. 163-65. Mr. Karlpus testified about the techniques
used to prevent soil erosion and to preserve its natural condition. More
specifically, he testified about log retainer bars, which are used to
hold the trail in place. He noted that the log retainer bars vary in size
based on the width of the trail and the length required to secure the
log. Tr. 169-170, 191. He stated that the retainer bars are completely
buried when they are first installed, but over time with weather and foot
traffic, the bars can become exposed. Tr. 170-71. In fact, he testified
that some level of exposure was expected and that the level or grade of
exposure varied depending upon the wind, and the amount of foot traffic
among other things. He expected that a foot to a foot and a half of a
retainer log would be exposed within a year. Tr. 192.
David Karplus further testified that exposed log retainer bars in and
of themselves are not hazardous to trail visitors, nor do they constitute
a condition requiring repair or maintenance. Tr.
183-185. Rather, he stated that immediate repair might be necessary
if the log retainer bar was loose or if it was physically broken. Tr.
171-172. He examined the picture of the trail taken where plaintiff fell,
and concluded that the log retainer bars in the picture were partially
exposed, rather than in a state of disrepair. He further noted that the
condition of the retainer bars was in keeping with his plan for the
renovated trail in 1995. Moreover, similar to Sue Kozacek, David Karplus
stated that the retainer bars in the picture did not appear to require
any maintenance. Tr. 184-85.
David Karplus also testified about loose gravel on nature trails. He
stated that nature trails are commonly covered in loose gravel, and that
loose gravel is most often the result of gravity or water. Tr. 185. He
noted that gravel on a trail becomes a hazardous condition when the
gravel is big or "if the gravel is completely covering the trail so that
there's nowhere a person could put their feet with any kind of good
footing." Tr. 185. David Karplus again examined the photograph of ...