United States District Court, E.D. New York
January 29, 2004.
ISABEL & MURRAY COHEN, Plaintiffs -against- UNITED STATES OF AMERICA, Defendant
The opinion of the court was delivered by: RAYMOND DEARIE, District Judge
MEMORANDUM & ORDER
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 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
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
"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
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)
(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
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
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
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
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.
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.
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
Plaintiffs also claim that defendant was negligent in failing to post
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
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
(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
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
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:
(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
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
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
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
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
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.
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
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.