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United States District Court, E.D. New York

January 29, 2004.


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 Page 2 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 Page 3 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 the trail.

  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 was Page 4 when she received a copy of it along with the accident report. Tr. 21, 43.

  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. Id.. Page 5

  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. Page 6

  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. 35.

  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 place.
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 Page 7 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. Id.

  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. Page 8 183-185. 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 the accident site and determined that the gravel shown in the picture did not rise to the level of a hazardous condition. Tr. 185.


  This suit is brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). Subject to various exceptions, the Act waives the sovereign immunity of the United States government and provides that it "shall be liable for injuries resulting from the negligent acts of its employees in the same manner and to the same extent as a private individual would be liable under like circumstances." Henretig v. United States, 490 F. Supp. 398, 402 (S.D. Fla. 1980); see also Coulthurst v. United States, 214 F.3d 106, 108 (2d Cir. 2000). In pertinent part, the FTCA authorizes suit against the federal government "to recover damages for injury . . . caused by Page 9 the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances, where the United States, if a private person, would be liable to the claimant." Coulthurst, 214 F.3d at 108 (quoting 28 U.S.C. § 1346(b)).

  The applicable law is that of the State of New Mexico. See 28 U.S.C. § 1346(b)(1) (noting that the under the FTCA, the United States "would be liable to the claimant in accordance with the law of the place where the act or omission occurred").

 A. The Discretionary Function Exception

  The discretionary function exception acts as a significant limitation on the FTCA's waiver of sovereign immunity. See Coulthurst, 214 F.3d at 108. The exception exempts from coverage "[a]ny claim . . . 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 an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The discretionary function exception was enacted to "`prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.' " Palay v. United States, 349 F.3d 418, 427 (7th Cir. 2003) (quoting United States v. Gaubert, 499 U.S. 315, 323 (1991)). Where the exception applies, the United States has chosen not to waive its immunity, and "the courts are without jurisdiction over such claims." O'Toole v. United States of America, 295 F.3d 1029, 1033 (9th Cir. 2002).

  In order for the discretionary function exception to apply, two conditions must be satisfied. First, the acts alleged to be negligent must be discretionary, meaning that the acts Page 10 "involve an element of choice and are not compelled by statute or regulation." Coulthurst, 214 F.3d at 109. If a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," then the first requirement of judgment or choice is not met. Gaubert, 499 U.S. at 322 (internal quotations omitted). Second, the "judgment or choice in question must be grounded in considerations of public policy or susceptible to policy analysis." Coulthurst, 214 F.3d at 109 (internal quotations omitted) (citing Gaubert, 499 U.S. at 322-23; Berkovitz v. United States. 486 U.S. 531, 536-37 (1988)).

  1. Log Retainer Bars

  With respect to the log retainer bars, the Court finds that there are two discrete issues: 1) the Park Service's decision to include the log retainer bars on the trail, which is a question of design and 2) the Park Service's maintenance of those log retainer bars. See ARA Leisure Serv. v. United States, 831 F.2d 193, 195 (9th Cir. 1987) (distinguishing between the initial design decision not to include guardrails and the failure to maintain a stretch of road in a safe condition).

  a. Design Question

  David Karplus testified that there are no written guidelines specifying how a trail should be designed. Tr. 189. He stated that the National Park Service publishes guidelines for trail design, but these guidelines do not function as rules which must be followed; rather they familiarize people with the various issues that come up in creating and preserving trails. Tr. 189-90. Since there is no mandatory statute, regulation, or policy governing the design and construction of nature trails, the Park Service legitimately exercised discretion in deciding to include log retainer bars in the trail, and thus the first requirement of the discretionary function exception test is satisfied. See, e.g., Baum v. United States, 986 F.2d 716, 722-23 (4th Cir. 1993) Page 11 (finding that maintenance of guardrails and bridges on park property are decisions subject to the judgment of the Park Service).

  The remaining issue is whether the judgment involved in choosing log retainer bars is of the type normally involving considerations of economic, social, or political history. Here the government contends that "[d]esign and construction decisions on the Gila Cliff Dwellings Trail are guided by the public policy of maintaining the park in as natural a setting as possible." See Defendant's Post-Trial Submission at 13. Sue Kozacek, the District Ranger, noted that a focal point of the visitor's experience at the Gila Cliffs is the historical significance of the monument and its relation to its natural surroundings. Tr. 96. Furthermore, David Karplus stated that the addition of non-native material to the site detracts from the visitor's ability to experience the site closely. Tr. 190.

  It is well-established that "aesthetic considerations, including decisions to preserve the historical accuracy of national landmarks, constitute legitimate policy concerns." Shansky v. United States, 164 F.3d 688, 693 (1st Cir. 1999). Indeed, "Congress instructed the Park Service to endeavor `to conserve the scenery and the natural and historic objects' of the property in its charge `and to provide for the enjoyment of the same in such a manner and by means as will leave them unimpaired for the enjoyment of future generations.' " Id. (quoting 16 U.S.C. § 1).

  The log retainer bars used on the Gila Cliffs Trail help to prevent soil erosion and keep the trail in place. Furthermore, they are consistent with the environment of the Gila National Forest, and clearly serve the Park Service's policy of preserving nature. Accordingly, defendant's decision to incorporate them in its design of the Gila Cliffs Trail is protected by the discretionary function exception and to the extent that plaintiffs' claim is based on this design Page 12 preference, this Court lacks jurisdiction. See ARA Leisure Serv. v. United States, 831 F.2d 193 (9th Cir. 1987) (finding that the Park Service's decision to design and construct a park without guardrails was covered by the discretionary function exception on the ground that the park policies required roads to be aesthetically pleasing).

  b. Maintenance of the Log Retainer Bars

  Unlike the design decision, the Court finds that the alleged failure to maintain the log retainer bars in a safe condition is not within the discretionary function exception. Thus, if defendant was indeed negligent in its maintenance of the retainer bars, it could be held liable to plaintiffs.

  Here, similar to the design question, the first requirement of the discretionary function exception is met. Plaintiff has provided no evidence of, nor does the record reveal, an explicit policy mandating the maintenance of the log retainer bars. Thus the Park Service's repair decisions are the product of choice, protected under the first prong of the discretionary function exception test. The issue is whether the Park Services' repair decisions are grounded in policy concerns.

  Although several circuits have found that a failure to repair was based on public policy concerns, the Court concludes that there is no such public policy rationale in this case. Where the courts have found a failure to repair within the ambit of appropriate discretion, the challenged governmental activity most often involved the balancing of competing public policy considerations, such as the allocation of funds, safety of visitors, and the inconvenience of the necessary maintenance. See. e.g., Mitchell v. United States, 225 F.3d 361 (3d Cir. 2000) (holding that discretionary function exception applied to Park Service's decision not to repair or Page 13 redesign a culvert head on a drainage ditch); Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995) (determining that Park Service's decision not to repave a slippery stretch of a parkway was protected because determining the appropriate course of action would require a balancing of factors such as the overall purpose and allocation of funds); Baum v. United States, 986 F.2d 716, 724 (4th Cir. 1993) (noting that decisions involving improvements to public facilities often involve policy questions of how best to allocate resources).

  In this case, there are no competing public policy considerations. Maintaining the log retainer bars is routine maintenance work-"maintenance work that would be expected of any other landowner" — and it "is not the kind of policy decision that the discretionary function exception protects." O'Toole v. United States, 295 F.3d 1029, 1036 (9th Cir. 2002) (finding government's decision to forgo needed repairs of irrigation system was not protected by discretionary function exception because such repairs constituted routine maintenance); ARA Leisure Serv. v. United States, 831 F.2d 193 (9th Cir. 1987) (holding that discretionary function exception did not apply to preclude government's liability where the Park Service permitted a road to erode to half its width creating an unreasonably dangerous condition). Construing the discretionary function exception broadly so as to include routine maintenance work would undermine the goal and purpose of the FTCA. See Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1999) ("[I]f the word `discretionary' is given a broad construction, it could almost completely nullify the goal of the [FTCA]."). "[I]n order to effectuate Congress's intent to compensate individuals harmed by government negligence, the FTCA, as a remedial statute, should be construed liberally, and its exceptions should be read narrowly." O'Toole, 295 F.3d at 1037. Page 14

  The Court's holding that the discretionary function exception does not shield the government from liability for failure to maintain the log retainer bars only goes to the Court's jurisdiction over the plaintiffs' negligence claim. The merits of plaintiffs' negligence claim will be addressed later in this opinion.

  2. Handrails

  Although not addressed in their submissions, at trial plaintiffs claimed that defendant was negligent in failing to erect handrails on the down portion of the trail. Defendant argued that its decision was protected by the discretionary function exception because it was grounded in public policy concerns about preserving the natural condition of the trail. Defendant further maintains that handrails are not necessary on the down portion of the trail because although the trail is steep, it is at a flat enough grade that there is no major falling hazard necessitating handrails. Tr. 188.

  While the Court finds defendant's reasons for not erecting hand rails on the down trail persuasive, the decision falls squarely within the discretionary function exception, and thus the Court has no jurisdiction over this claim. See. e.g., Shansky v. United States, 164 F.3d 688 (1st Cir. 1999) (decision not to place handrails at exit was susceptible to policy analysis and thus protected by discretionary function exception); Zuk v. United States, 698 F. Supp. 1577, 1579 (S.D. Fla. 1988) (failure to erect guardrails comes within discretionary function exception and therefore, no liability may attach); Henretig v. United States, 490 F. Supp. 398, 404 (S.D. Fla. 1980) (failure to erect hand rails comes within discretionary function exception).

  3. Warnings

  Plaintiffs also claim that defendant was negligent in failing to post sufficient warning Page 15 signs about the steep nature of the trail and about the presence of defective log retainer bars. Where a specific hazard is involved, such as a broken log retainer bar, the decision whether to place a warning is not discretionary. See Duke v. Dep't of Agriculture, 131 F.3d 1407, 1411 (10th Cir. 1997). Thus, if the log retainer bars in question were indeed broken, defendant would have no discretion in deciding whether to warn visitors of the condition.*fn3

  In contrast to specific hazards, the decision to place general warnings about the nature of the trail is discretionary, and is therefore within the scope of the exception. See id. at 1411. (holding that a failure to warn is not discretionary where a specific hazard is involved, but finding such a situation "distinct from the multitude of hazards that might exist in . . . a wilderness trail through a national park or forest, where warnings might detract from the area's character or safety structures might be costly"). Accordingly, just as with the handrails, this Court lacks jurisdiction over defendant's claim.

  Even if the decision to post general warnings was not deemed discretionary, the defendant would still prevail because no liability may attach for failure to warn of obvious conditions. See Arenivas v. Continental Oil Co., 102 N.M. 106, 109 (N.M. Ct. App. 1984) (finding that landowner has no duty to warn of open and obvious dangers). All of the conditions (other than the defective log retainer bars) of which plaintiffs complain, such as the steepness of the trail and the lack of handrails, were visible and obvious. See Zuk, 698 F. Supp. at 1580-81; Henretig, 490 F. Supp. at 405.

  B. Defendant Owed Plaintiffs No Duty Page 16

  1. Applicability of New Mexico's Recreational Use Statute

  The liability of defendant under the laws of New Mexico. depends upon the application of New Mexico's Recreational Use Statute ("NMRUS"). The NMRUS limits landowners' liability for damages suffered by those who enter their land free of charge to pursue recreational activities. In pertinent part the NMRUS provides:

Any owner . . . of land who, without charge or other consideration, other than a consideration paid to said landowner by the state, the federal government or any other governmental agency, grants permission to any person or group to use his lands for the purpose of hunting, fishing, trapping, camping, hiking, sightseeing or any other recreational use does not thereby:
(1) extend any assurance that the premises are safe for each purpose; or
(2) assume any duty of care to keep such lands safe for entry or use; or
(3) assume responsibility or liability for any injury or damage to, or caused by, such person or group; or
(4) assume any greater responsibility, duty of care or liability to such person or group, than if such permission had not been granted and such person or group were trespassers.
N.M.S.A. 17-4-7 (Michie 2003). State recreational use statutes may be applied in FTCA cases where the federal land in question is used for recreational purposes. See Maldonado v. United States, 893 F.2d 267 (10th Cir. 1997) (finding that the NMRUS applies to lands owned by the federal government and set aside for recreational purposes); Kirkland v. United States, 930 F. Supp. 1443 (D. Col. 1996) (noting that the United States is entitled to the protection of state recreational use statutes).

  The parties do not dispute that the park at Gila Cliffs was open to the public for recreational activities. They do, however, dispute whether there was a charge to enter the park. Defendant maintains that there was no admission fee and thus it is entitled to the protections of the NMRUS. Plaintiffs argue that the NMRUS does not apply because they previously Page 17 purchased a $10 Golden Age Passport, which permitted them to enter all National Parks, and a member of their party (Mr. Herman) purchased a trail guide for fifty cents.

  The NMRUS does not define "without charge or other consideration," and it appears that the New Mexico. Supreme Court has never addressed the meaning of the term as used in the statute. The majority view among other courts interpreting recreational use statutes is that" `charge' means an actual admission fee paid for permission to enter the land for recreational purposes." Hardy v. Loon Mountain Recreation Corp., 276 F.3d 18, 20-21 (1st Cir. 2002) (citing inter alia Howard v. United States, 181 F.3d 1064 (9th Cir. 1999) (finding that payment of fee to private teacher for sailing lessons in restricted military harbor is not a charge by the government); Wilson v. United States, 989 F.2d 953 (8th Cir. 1993) (holding that fee charged to use facilities was not a charge to use the surrounding land); Majeske v. Jekyll Island State Park Auth., 209 Ga. App. 118 (Ga. App. 1993) (holding that a parking fee does not constitute a charge where the parking fee was per car, not per occupant, and any other means of accessing the park was free); see also Zuk v. United States, 698 F. Supp. 1577, 1582 (S.D. Fl. 1988) (finding plaintiff's claim barred under Florida's RUS where there were licensing and operating fees but there was no charge to enter or use the park). The Court concludes that the New Mexico. court would most likely adopt the majority view that the word "charge" as used in the recreational statute requires a quid pro quo arrangement. See Hardy, 276 F.3d at 20 (noting that district courts sitting in diversity must predict how a state court would resolve a novel legal issue).

  At the time of plaintiffs' visit to the Gila Cliff Dwellings National Monument, there was no admission fee. Plaintiffs testified that they paid no fee to enter the park, and they did not recall whether they showed their Golden Age Passport. Even if plaintiffs had shown their Page 18 passport, however, it would not affect the applicability of the NMRUS because the passport was not required for admission. Thus, there was no quid pro quo arrangement. Plaintiffs' further claim that the trail pamphlet constitutes a "charge" is similarly misplaced. Visitors were not required to purchase a trail guide; they could purchase a trail guide for fifty cents or borrow one free of charge. Therefore, since no fee was charged by defendant for entrance to the Gila Cliffs, the NMRUS applies.

  2. Defendant's Duty of Care Under the NMRUS

  Under the NMRUS, visitors to the Gila Cliff Dwellings are considered trespassers. See NMRUS § 17-4-7(4) (stating that any owner who opens lands to the public without charge and grants permission to use land for recreational purposes "does not thereby assume any greater . . . duty of care . . . to such person, than if such permission had not been granted and such person or group were trespassers"). In order to determine defendant's duty of care to trespassers, the Court must look to the New Mexico. Uniform Jury Instructions. See Maldonado v. United States, 893 F.2d 267, 269 (10th Cir. 1990) (noting that "the NMUJI have been approved by the New Mexico. Supreme Court and trial courts in New Mexico. are bound to follow the Supreme Court's order requiring the use of uniform jury instructions" (internal citations and quotations omitted)). According to the NMUJI, "[t]he owner of land has no liability to a trespasser injured on his land from a natural condition of that land." NMUJI § 13-1307. Rather, a landowner is only liable to an injured trespasser if the trespasser's injury resulted from an unreasonably dangerous artificial condition. The jury instructions provide the following:

  [i]f the owner creates or maintains an artificial condition on the land, then he or she has a duty to use ordinary care to warn of the condition and of the risk involved if: Page 19


(1) The condition involves an unreasonable risk of death or bodily harm to persons coming onto the land;
(2) He or she knows or reasonably should know that there are persons on the land in dangerous proximity to the condition; and
(3) He or she has reason to believe that the trespasser will not discover the condition or realize the risk involved.
NMUJI § 13-305.

 a. Log Retainer Bars

  Defendant characterizes the log retainer bars as mere modifications of nature necessary to prevent trail erosion, and therefore argues that the log retainer bars do not constitute an artificial condition. While it is true that log retainer bars help to stabilize the natural condition of the Gila Cliffs trail, they are nevertheless "artificial" in that they alter the park's natural condition. Indeed, defendant itself offered testimony that the log retainer bars were used to re-route the trail.

  Although the log retainer bars constitute an artificial condition, defendant owes no duty to plaintiffs with respect to the bars because they do not create "an unreasonable risk of death or bodily harm." NMUJI § 13-305. As defendant notes, plaintiffs have offered no expert testimony that log retainer bars are inherently dangerous or flawed. Moreover, David Karplus, defendant's trail expert, testified that some degree of erosion was expected with log retainer bars and such erosion in and of itself does not constitute a hazardous condition. Finally, Sue Kozacek stated that prior to plaintiff's fall, there had been no other similar accidents on the Gila Cliffs trail. Therefore, defendant had no actual or constructive knowledge of any dangerous condition posed by the log retainer bars. Tr. 129-130.

  b. Loose Gravel

  Loose gravel, unlike the log retainer bars, constitutes a natural condition. David Karplus and Sue Kozacek both testified that loose gravel is common on nature trails, and David Karplus Page 20 stated that loose gravel is often the result of gravity or water. Tr. 185. Because loose gravel is a natural condition, according to NMUJI defendant owes plaintiff no duty for any injury she suffered as a result of the loose gravel. See NMUJI § 13-307 (landowner not liable to trespasser injured on his land as a result of a natural condition).

 C. Even Under an Ordinary Negligence Standard, Plaintiffs have Failed to Establish Defendant's Liability

  Even if the NMRUS statute did not apply in this case, defendants would nevertheless prevail because plaintiffs have failed to prove the existence of a negligent condition. Under New Mexico. law, a landowner has a duty to "act as a reasonable man in maintaining his property in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk." Ford v. Bd. of Cty Comm's of Cty Dona Ana, 118. N.M. 134, 139 (1994). This duty of care extends to all persons, other than trespassers, who enter the land with the owner's express or implied consent. Id.

  1. Log Retainer Bars

  Plaintiffs failed to produce sufficient evidence that the log retainer bars were defective or improperly maintained. As an initial matter, there was no proof of a broken log retainer bar. Isabel Cohen described the condition that made her fall as a missing piece of wood. She stated, "I noticed that the step in back of me, 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. Murray Cohen similarly stated that the log retainer bar did not extend all the way across the step. He testified that "there was no piece going from the left side of the — step coming down." Tr. 48. Alfred Herman, likewise stated that the log retainer bar did not appear to be Page 21 broken, but rather it did not extend the width of the trail. He stated, "It was less broken, more eroded." Tr. 74. Moreover, Sue Kozacek found no broken log retainer bars during her inspection of the down trail the day after plaintiff's accident. Tr. 107. In fact, she stated that the trail surface was in good condition and she found no rotted or out of place log retainer bars. Tr. 107. Finally, the incident report, which plaintiffs helped to complete the day of the accident, makes no mention of a defective or broken log retainer bar; it merely discusses the steep, slick condition of the trail.

  The credible evidence indicates the presence of a partially exposed log retainer bar. Indeed, David Karplus listened to plaintiff's observations and her account of the accident, as well as Sue Kozacek's testimony about the condition of the trail the day after plaintiff's fall, and concluded that the testimony of both witnesses was consistent with a partially exposed log retainer bar. He testified:

I can visualize the condition that could be present on the trail that would allow both those statements that appear to contradict each other to both be true . . . That would be if you had a retainer bar buried into the hillside, the bar on the right-hand side of the trail was exposed, the other part buried under the soil, the plaintiff would have seen coming on the trail, she could have slipped On the part that was not exposed, her right foot would have stopped on the trail, the left foot would have slipped, fallen down, sat back, see a part missing of the retainer bar, either missing, physically removed, or not visual because its buried. Ms. Kozacek would come out the next day, said I see the retainer bar is in place, I see no retainer bars loose, nothing missing, and not being able then to reconcile, basically seeing nothing wrong.
Tr. 179.

  Mr. Karplus further testified that partial exposure of log retainer bars is consistent with the trail's normal condition, and he noted that such exposure often occurs when log retainer bars are installed with dirt fill, as they were at Gila Cliffs. When log retainer bars are initially Page 22 installed they are completely buried in dirt fill. Over time and with use, however, the dirt fill compacts and compresses around the log retainer bar, causing the blending point of the log retainer bar to become exposed. Tr. 171. David Karplus testified that some degree of exposure, up to a foot to a foot and half within a year, was expected. Tr. 192.

  David Karplus explained that unlike broken log retainer bars, partially exposed log retainer bars do not pose a hazardous condition. Tr. 183. Indeed, partial exposure is an inherent part of the design of the log retainer bars. Mr. Karplus also noted that log retainer bars have a life expectancy of 7 to 15 years, and he stated that the log retainer bars at issue in this case were replaced in 1995, the year before the accident.

  The Court finds that plaintiffs have failed to prove the existence of a negligent condition. Plaintiffs offered no proof that the log retainer bars were negligently designed. Furthermore, the credible evidence indicates that partial exposure is both an expected occurrence and inherent in the very design of log retainer bars. Because eventual exposure is inherent in the design of log retainer bars, plaintiffs' claim essentially amounts to an assertion that log retainer bars were a poor choice and the Park Service was negligent in including them in the trail. As discussed earlier, such a claim, challenging the Park Service's design decisions, is precluded by the discretionary function exception.

  2. Loose Gravel

  Plaintiffs have failed to demonstrate that the loose gravel on the trail constituted a negligent condition. Nature trails, like the trail at Gila Cliffs, are composed of natural materials and the presence of loose gravel and other natural material on the trail, such as dirt or pine needles, is common. Moreover, loose gravel is clearly visible to those walking on the trail, and it Page 23 rarely creates a hazardous condition; immediate sweeping is only necessary where there is a significant amount of gravel on the trail or where there are large rocks or fallen branches. Tr. 134, 185.

  Plaintiffs have offered no proof that the amount of gravel on the trail was excessive, nor have they offered proof that there were large rocks or branches blocking the trail; their testimony merely recounted the fact that there was some gravel on the trail. Tr.25, 51. Moreover, both Sue Kozacek and David Karplus examined plaintiff's photograph of the accident site and concluded that the amount of gravel depicted in the photograph did not amount to a condition requiring immediate sweeping. Finally, the conclusion that the loose gravel did not present an unreasonable danger is reinforced by the absence of other incident reports. See Henretig, 490 F. Supp. at 404.


  The foregoing constitutes the Court's findings of fact and conclusions of law. Accordingly, defendant is entitled to judgment.


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