2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-20-2008

Merando v. USA

Precedential or Non-Precedential: Precedential

Docket No. 06-4657

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"Merando v. USA" (2008). 2008 Decisions. Paper 1494.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-4657

 

ANTON MERANDO, AS GENERAL ADMINISTRATOR 

AND ADMINISTRATOR AD PROSEQUENDUM 

OF THE ESTATES OF KATHLEEN MERANDO 

AND KAYLYN MERANDO,

Appellant

v.

UNITED STATES OF AMERICA; COUNTY OF SUSSEX;

TOWNSHIP OF WALPACK; PUBLIC 

SERVICE ELECTRIC AND GAS;

JOHN DOES 1-10 (SAID NAMES BEING FICTITIOUS);

XYZ CORPS. 1-10 (SAID NAMES BEING FICTITIOUS);

JERSEY CENTRAL POWER AND LIGHT

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 04-3288)

Honorable Garrett E. Brown, Jr., District Judge

 

Submitted under Third Circuit LAR 34.1(a)

December 14, 2007

BEFORE: RENDELL, GREENBERG, and 

VAN ANTWERPEN, Circuit Judges

(Filed: February 20, 2008)

 
2

Richard A. Grodeck

Feldman Grodeck

80 Main Street

West Orange, NJ 07052

 Attorneys for Appellant

Christopher J. Christie

United States Attorney

Pamela Perron

Assistant U.S. Attorney

970 Broad Street

Newark, NJ 07102

 Attorneys for Appellee

 

OPINION OF THE COURT

 

GREENBERG, Circuit Judge.

This case comes on before this Court on an appeal from

an order of the District Court entered October 5, 2006,

dismissing a complaint for lack of subject matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1). Merando v.

United States, Civ. No. 04-3288, 2006 WL 2865486 (D.N.J. Oct.

5, 2006). The action arose in the aftermath of a tragedy when on

August 11, 2003, a tree in the Delaware Water Gap National

Recreation Area fell onto a roadway and crushed a passing car

driven by Janine Noyes in which Kathleen Merando and her

nine-year old daughter Kaylyn Merando were passengers. Mrs.

Merando and Kaylyn were killed instantly. Anton Merando,

Mrs. Merando’s husband and Kaylyn’s father, filed this action

alleging that the Government negligently pruned and failed to

find and remove the hazardous tree. But the District Court

dismissed the case as it concluded that the discretionary function

exception to the Federal Tort Claims Act deprived it of subject

matter jurisdiction and thus immunized the Government from

suit. We will affirm.
3

I. FACTS AND PROCEDURAL HISTORY

The Delaware Water Gap National Recreation Area

(“Park”) occupies 63,000 acres in New Jersey and Pennsylvania

along the Delaware River. The Park primarily is forested land

accessed by 169 miles of roadways, 68 miles of trails, and

several streams. The developed areas include campgrounds,

boat launch areas, visitor centers, picnic areas, historic sites, and

parking lots. The Pennsylvania side of the Park contains more of

the developed attractions and thus more people visit it than visit

the New Jersey side which does not have developed beaches,

boat launches, or visitor centers. The National Park Service, an

agency within the Department of the Interior, manages the Park.

On August 11, 2003, Noyes was driving her car southerly

on Route 615 on the New Jersey side of the Park with Kathleen

and Kaylyn Merando as passengers. Noyes drove the car by a

twenty-seven foot tall red oak tree that was about six yards off

the road. The Government took title to the land where the oak

tree was situated in 1969 and to the roadway itself in 1996. The

tree’s natural growth caused it to lean with its branches

extending over the roadway. More than ten years before the

tragedy here, an unknown person wielding a chainsaw had

“topped” and delimbed the tree, leaving it standing in a “Y”

shape with no bark or branches and with the dead tree pole

leaning toward the roadway. As their car passed nearby the tree

fell and crushed the car instantly killing Mrs. Merando and

Kaylyn.

On July 9, 2004, Anton Merando filed his complaint in

the District Court which he amended on August 2, 2004. He

originally sued the United States of America, Sussex County,

Walpack Township, Public Service Electric and Gas, Jersey

Central Power and Light, John Does 1-10, and XYZ Corps. 1-10

but except for the United States of America all are no longer

parties to this case.

Mr. Merando alleged that the District Court had subject

matter jurisdiction pursuant to the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. §§ 1346(b), 2679. In count one of his

amended complaint, he alleged that the Government as well as
4

all the other defendants negligently pruned the tree causing it to

die and eventually collapse, killing the decedents. In count two,

he alleged that the tree constituted a hazardous and extremely

dangerous condition of which the Government and all the other

defendants knew or should have known and that all the

defendants negligently failed to act to remove the tree, killing

the decedents. In count three, he alleged that the decedents

sustained severe injuries resulting in pain and suffering that

continued until their deaths.

The Government moved to dismiss the amended

complaint for lack of subject matter jurisdiction on the basis of

the discretionary function exception to the FTCA, and on

October 5, 2006, the District Court granted the motion. While

the Government also filed a motion to dismiss the complaint for

failure to state a claim, arguing that the New Jersey Landowners

Liability Act, N.J. Stat. Ann. §§ 2A:42A-2 to 10 (West 2000),

barred the action, inasmuch as the District Court found that it did

not have subject matter jurisdiction, it did not address that

motion.

On October 26, 2006, Mr. Merando filed a timely notice

of appeal. 

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the final order of the District

Court pursuant to 28 U.S.C. § 1291 and exercise plenary review

over application of the FTCA’s discretionary function exception. 

See Mitchell v. United States, 225 F.3d 361, 362 (3d Cir. 2000). 

We resolve the question of whether the District Court had

subject matter jurisdiction by this opinion.

III. DISCUSSION

A. The Discretionary Function Exception
5

The United States of America, as a sovereign, is immune

from suit unless it consents to be sued. United States v.

Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351 (1980) (citing

United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767,

769-70 (1941)). Nevertheless, under the FTCA, the United

States has waived its sovereign immunity for:

claims . . . for money damages . . . for injury or

loss of property, or personal injury or death 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 in

accordance with the law of the place where the act

or omission occurred.

28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674.

The FTCA carves out a “discretionary function”

exception, however, which provides that the Government cannot

be sued for any 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 plaintiff, here Mr. Merando, bears the

burden of demonstrating that his claims fall within the scope of

the FTCA’s waiver of government immunity, In re Orthopedic

Bone Screw Prod. Liab. Litig., 264 F.3d 344, 361 (3d Cir. 2001),

but “‘[t]he United States has the burden of proving the

applicability of the discretionary function exception.’” 

Cestonaro v. United States, 211 F.3d 749, 756 n.5 (3d Cir. 2000)

(quoting Nat’l Union Fire Ins. v. United States, 115 F.3d 1415,

1417 (9th Cir. 1997)).

The discretionary function exception “marks the boundary

between Congress’ willingness to impose tort liability upon the

United States and its desire to protect certain governmental

activities from exposure to suit by private individuals.” United

States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig

Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762 (1984). The
6

exception’s purpose is “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.” Id. at 814, 104 S.Ct. at 2765.

Courts make two-part inquiries to determine whether the

discretionary function exception applies in any particular case. 

United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267,

1273-74 (1991). First, a court must determine whether the act

giving rise to the alleged injury and thus the suit involves an

“element of judgment or choice.” Id. at 322, 104 S.Ct. at 1273

(quoting Berkovitz v. United States, 486 U.S. 531, 536, 108

S.Ct. 1954, 1958 (1988)). “The requirement of judgment or

choice is not satisfied if a ‘federal statute, regulation, or policy

specifically prescribes a course of action for an employee to

follow,’ because ‘the employee has no rightful option but to

adhere to the directive.’” Id. (quoting Berkovitz, 486 U.S. at

536, 108 S.Ct. at 1958-59); see also Mitchell v. United States,

225 F.3d at 363; Cestonaro, 211 F.3d at 753. The Supreme

Court has stated:

[I]f a regulation mandates particular

conduct, and the employee obeys the direction, the

Government will be protected because the action

will be deemed in furtherance of the policies

which led to the promulgation of the regulation. If

the employee violates the mandatory regulation,

there will be no shelter from liability because there

is no room for choice and the action will be

contrary to policy. On the other hand, if a

regulation allows the employee discretion, the very

existence of the regulation creates a strong

presumption that a discretionary act authorized by

the regulation involves consideration of the same

policies which led to the promulgation of the

regulations.

Gaubert, 499 U.S. at 324, 111 S.Ct. at 1274 (internal citation

omitted).
7

Second, even if the challenged conduct involves an

element of judgment, the court must determine “whether that

judgment is of the kind that the discretionary function exception

was designed to shield.” Id. at 322-23, 111 S.Ct. at 1273.

Because the purpose of the exception is 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, when properly construed, the

exception protects only governmental actions and

decisions based on considerations of public policy.

Id. (internal quotation marks and citations omitted). The “focus

of the inquiry is not on the agent’s subjective intent in exercising

the discretion conferred by the statute or regulation, but on the

nature of the actions taken and on whether they are susceptible

to policy analysis.” Id. at 325, 111 S.Ct. at 1275; see also

Mitchell, 225 F.3d at 363-64; Cestonaro, 211 F.3d at 753;

Sea-Land Serv. Inc. v. United States, 919 F.2d 888, 892 (3d Cir.

1990).

B. The Challenged Government Conduct

Before we can make the two-part Gaubert inquiry to

determine whether the discretionary function exception

immunizes the Government from a suit based on its conduct, we

must identify the conduct at issue. Cestonaro, 211 F.3d at 753. 

Mr. Merando contends that the conduct for purposes of the

discretionary function exception analysis is twofold: first, that

the Park Service’s Roads and Maintenance crews negligently

“topped” the tree without removing it; and second, that the crews

negligently failed to find and remove the “topped” tree. He

contends that the discretionary function exception does not apply

here because the Park Service’s unwritten hazardous tree

management plan mandated the crews never to “top” trees but

rather to identify and remove hazardous trees as they drove the

roads of the Park.
8

On the other hand the Government contends that the

conduct at issue is the Park Service’s decisions that comprise its

hazardous tree management plan and its execution of that plan.

To aid us in our analysis, we review Autery v. United

States, a case that is remarkably similar to this case. 992 F.2d

1523 (11th Cir. 1993); see also Rosebush v. United States, 119

F.3d 438, 441-42 (6th Cir. 1997) (relying on Autery in

determining what conduct was at issue when plaintiffs sued the

Government for negligently failing to maintain fire pit at

campground). In Autery, a black locust tree fell on a passing car

in the Great Smokey Mountain National Park, killing one

passenger and injuring another. 992 F.2d at 1524. At the time

of the accident, the Park Service had an unwritten policy “to

make every reasonable effort within the constraints of budget,

manpower, and equipment available to detect, document,

remove, and prevent tree hazards.” Id. at 1525. To implement

this policy, Park Service personnel “initially conducted visual

inspections from trucks driven along the road. Any tree that

appeared hazardous was then inspected more closely.” Id. In

the Autery situation Park Service personnel received information

regarding the risks posed by black locust trees in the park. After

a bench trial, the district court found that the Government “had

negligently failed to (1) devise, implement and follow an

appropriate tree hazard management plan; (2) properly maintain

the National Park area; (3) properly inspect the trees in the

National Park in the area where the accident occurred; and (4)

identify and remove the hazardous trees which fell and struck

[the victims].” Id. at 1524.

On appeal, the Court of Appeals for the Eleventh Circuit

confronted the question of identifying the conduct at issue for

purposes of a discretionary function exception analysis. The

Government argued that the conduct was the Government’s

“decision to establish and implement a tree inspection program,”

while the plaintiffs contended that the conduct was “the park’s

failure to carry out the mandates of its then existing policy of

identifying and eliminating known hazardous trees.” Id. at 1527

(quotation marks omitted). The district court had held that “the

inquiry . . . is whether the Park Service officials had discretion
9

under their Tree Hazard Management Plan to remove

‘hazardous’ trees.” Id.

The court of appeals, however, stated:

The government’s focus on the decision to

establish a tree inspection plan is too broad; as

plaintiffs concede, the government had the

discretion to adopt or not adopt a plan at all. The

more important question is whether any statute,

regulation or agency guideline specifically

provided that if a tree inspection plan were

developed, it would have to include particular

inspection procedures.

Id. (footnote omitted). The court continued:

Plaintiffs’ and the district court’s focus, on the

other hand, is too narrow. The particular inquiries

posed by plaintiffs and the district court are based

on misinterpretations of the law. Plaintiffs’

support their contention that the discretionary

function exception does not apply to the manner in

which park personnel administered the inspection

plan by relying on Fifth Circuit cases that had held

that the government was not protected when it was

performing an operational function. The Supreme

Court squarely rejected this proposed distinction in

Gaubert, ruling that the Fifth Circuit ‘erred in

holding that the [discretionary function] exception

does not reach decisions made at the operational or

management level.’ Gaubert, 499 U.S. at 325, 111

S.Ct. at 1275. ‘Discretionary conduct is not

confined to the policy or planning level.’ Id.; see

also Varig Airlines, 467 U.S. at 813, 104 S.Ct. at

2764 (‘[I]t is the nature of the conduct, rather than

the status of the actor, that governs whether the

discretionary function exception applies in a given

case.’).
10

Id. at 1527-28 (internal citations, quotation marks and footnote

partially omitted). The court added:

The district court’s inquiry, on the other hand, by

asking whether the park officials had discretion to

remove ‘hazardous’ trees, begs the question. The

tree inspection program was designed to identify

which trees were hazardous. Whether park

personnel had discretion in executing that plan is

the relevant issue. The district court’s analysis

appears to collapse the question of whether the

Park Service was negligent into the discretionary

function inquiry. That is, after finding that the

Park Service had knowledge of the danger of black

locust trees, the district court imposed a

‘reasonableness’ requirement on the government’s

conduct.

Id. at 1528. The court concluded:

It is the governing administrative policy, not the

Park Service’s knowledge of danger, however, that

determines whether certain conduct is mandatory

for purposes of the discretionary function

exception. The FTCA expressly provides that the

exception applies to policy judgments, even to

those constituting abuse of discretion. Therefore,

the relevant inquiry here is whether controlling

statutes, regulations and administrative policies

mandated that the Park Service inspect for

hazardous trees in a specific manner. If not, then

the Park officials’ decision to employ a particular

inspection procedure – and its execution of that

plan – is protected by the discretionary function

exception.

Id. (internal citations and quotation marks omitted). Ultimately,

the court of appeals held that the discretionary function

exception immunized the Government from a lawsuit based on

the decisions Park Service personnel made in designing and

implementing the park’s unwritten tree inspection program, and
11

thus the court dismissed the case for lack of subject matter

jurisdiction. 

Mr. Merando presents an argument that is very similar to

the plaintiffs’ argument and the district court’s decision in

Autery. He contends that the conduct at issue is the

Government’s alleged failure properly to prune, find, and

remove the hazardous tree. 

Mr. Merando’s allegation that the Government

negligently pruned the tree causing it to decay and collapse

implies that it was the Government that topped the tree. But this

allegation is unsupportable because Mr. Merando has not shown

that the Government in any way was involved in the topping of

the tree either by consenting to its topping or actually topping it

itself. In reaching this conclusion, we recognize, of course, that

the Government took title to the site of the tree in 1969. 

Moreover, we realize that Mr. Merando contends in his brief that

“according to the evidence” the tree was topped “during the 30+

years after the [National Parks Service] took title to it in 1969,”

therefore suggesting that it controlled the tree when the unknown

person topped it. Appellant’s Br. at 14. 

We cannot, however, draw any inference from this

chronology of events as it cannot be inferred that, against

Government policy not to top trees, it was the Government that

topped the tree or that it consented to its topping merely because

it may have owned the land on which the tree was situated when

the unknown person topped it. After all, in Mr. Merando’s

answers to interrogatories he tells us that “[i]t is understood from

documents which have been produced in discovery . . . that the

County of Sussex retained responsibility for tree trimming and

clearance even after jurisdiction for the County Road was

transferred to the United States of America” in 1996, app. at

281, thus suggesting that Sussex County topped the tree. On the

other hand, in an uncontested motion for summary judgment

Sussex County asserted that “[t]he identity of the company or

individuals who topped the tree is unknown” but that the “tree

was topped presumably by a power company.” Furthermore,

there would be no basis to infer that the Government consented

to the topping of the tree or actually topped it merely because the
Clearly we can examine the facts with respect to the 1

identity of the person who topped the tree on this appeal from a

dismissal predicated on the want of subject matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1). See Cestonaro,

211 F.3d at 752.

12

tree was situated in a 63,000 acre park at a location that it may

have owned when the unknown person topped the tree. Clearly,

too many different entities had access to the tree to permit a trier

of the fact to draw that inference. 

In sum, there is simply neither direct evidence nor

evidence from which an inference can be drawn that the

Government topped the tree and this absence of evidence as a

factual matter eliminates from this case Mr. Merando’s claim

that Park Service personnel violated a mandatory policy not to

“top” trees. 

1

Accordingly, we only will analyze the other aspect of Mr.

Merando’s claim: his challenge to the Government’s alleged

negligent failure to find and remove the tree. Mr. Merando

argues that the Park Service’s crews did not have discretion not

to find and remove the hazardous tree. Like the district court’s

decision in Autery, however, Mr. Merando’s argument begs the

question. The Park Service designed its hazardous tree

management plan, which we detail below, to identify which trees

were hazardous. The relevant issue here is whether the Park

Service had discretion in formulating and executing that plan. 

Mr. Merando’s claims regarding the Government’s

alleged negligent failure to find and remove the tree essentially

are a challenge to the Park Service’s plan for finding and

managing hazardous trees. The Park Service’s plan and its

execution of that plan constitutes the conduct at issue for

purposes of the discretionary function exception analysis. Like

the plaintiffs’ argument in Autery, Mr. Merando’s focus on the

actions of the Park Service crews simply is too narrow. The

relevant inquiry is whether the controlling statutes, regulations,

and administrative policies mandate that the Park Service locate

and manage hazardous trees in any specific manner. If not, the
13

Park Service’s decisions as to the precise manner in which to do

so, and its execution of those decisions, clearly fall within the

discretionary function exception to the government’s tort

liability. See also Varig Airlines, 467 U.S. at 819-20, 104 S.Ct.

at 2767-68 (discretionary function exception protects both

Government’s decision to “spot-check” airplanes for compliance

with safety regulations and execution of those “spot-checks” by

Government personnel).

C. Whether the Discretionary Function Exception

Immunizes the Government from a Lawsuit Based

on its Conduct

Now that we have identified the Government’s conduct at

issue in this case, we determine whether the discretionary

function exception immunizes it from a lawsuit based on that

conduct. In this inquiry we first must decide whether a statute,

regulation, or policy required the Park Service to locate and

manage hazardous trees in any specific manner, or whether the

Government’s actions were discretionary because they involved

an “element of judgment or choice.” Gaubert, 499 U.S. at 322,

111 S.Ct. at 1273.

The National Park Service was established to

promote and regulate the use of the Federal areas known

as national parks, monuments, and reservations . . . by

such means and measures as conform to the fundamental

purpose of the said parks, monuments, and reservations,

which purpose is to conserve the scenery and the natural

and historic objects and the wild life therein and to

provide for the enjoyment of the same in such manner and

by such means as will leave them unimpaired for the

enjoyment of future generations.

16 U.S.C. § 1. The Park Service’s specific mission for the

Delaware Water Gap National Recreation Area is to maintain the

property “for public outdoor recreation use and enjoyment . . . by

the people of the United States and for preservation of the

scenic, scientific, and historic features contributing to public

enjoyment of such lands and waters . . . .” 16 U.S.C. § 460o.
14

In the administration of the Park, “the Secretary of the

Interior may utilize such statutory authorities relating to areas of

the national park system and such statutory authorities otherwise

available to him for the conservation, management, or disposal

of vegetative, mineral, or fish or wildlife resources as he deems

appropriate . . . .” 16 U.S.C. § 460o-3. Moreover, the Secretary

shall adopt and implement . . . a land and water use

management plan, which shall include specific

provision for, in order of priority – (1) public

outdoor recreation benefits; (2) preservation of

scenic, scientific, and historic features contributing

to public enjoyment; (3) such utilization of natural

resources as in the judgment of the Secretary of the

Interior is consistent with, and does not

significantly impair, public recreation and

protection of scenic, scientific, and historic

features contributing to public enjoyment.

16 U.S.C. § 460o-4.

The Park Service’s “Management Policies 2001” manual

sets out its visitor safety policy:

The saving of human life will take precedence

over all other management actions as the Park

Service strives to protect human life and provide

for injury-free visits. The Service will do this

within the constraints of the 1916 Organic Act. 

The primary – and very substantial – constraint

imposed by the Organic Act is that discretionary

management activities may be undertaken only to

the extent that they will not impair park resources

and values. . . . When practicable, and consistent

with congressionally designated purposes and

mandates, the Service will reduce or remove

known hazards and apply other appropriate

measures, including closures, guarding, signing, or

other forms of education. In doing so, the

Service’s preferred actions will be those that have

the least impact on park resources and values . . . . 
15

These management policies do not impose parkspecific visitor safety prescriptions. The means by

which public safety concerns are to be addressed is

left to the discretion of superintendents and other

decision-makers at the park level, who must work

within the limits of funding and staffing.

App. at 368. Significantly, nothing in the above-quoted statutes

or policies mandates how the Government should locate or deal

with hazardous trees.

In addition to these statutes and policies, the Park Service

issued a 1991 document entitled “Natural Resources

Management Guidelines,” containing a “Hazardous Tree”

section that “provides the foundation for each park to implement

its own hazardous tree management plan . . . , and also to

provide a general scheme for such plans.” App. at 177. This

section states in pertinent part:

The following guidance may be used in developing

a park plan. Each plan must be tailored to a park’s

particular requirements according to vegetation

type(s), type of visitor use areas, frequency of

visitation, and other factors.

. . . .

Periodically, any trees which stand within falling

distance of public use areas and which might pose

a hazard to the public or significant property

should be systematically inspected for flaws. The

form and frequency of routine inspection or

surveillance will depend on the type of visitor use

areas (which will be defined later). The

constraints of manpower available to a park may

not permit periodic inspection of all pertinent

areas. . . . Frequency of inspection as called for in

the [hazardous tree management plan] becomes a

local issue keyed to the nature of the park and

visitor use.
16

. . . .

Any tree denoted as hazardous should be promptly

cared for, using the best arboricultural techniques,

to eliminate the hazardous status of the tree. If it

cannot be made safe, or if the effort to make it safe

would be too costly in terms of manpower or

dollars, then the tree may be removed.

. . . .

Deliberate visual inspections of transportation

corridors should include all trees that could affect

the roadway. Areas that may be screened or

otherwise difficult to view from the road should be

given a walk-through inspection. Drive-by

inspections may not catch all flaws in the trees

along roadways. However, it is generally

recognized that it may not be realistically possible

to walk by all trees along miles of roadways, and

under these conditions a documented drive-by

inspection should be considered satisfactory.

App. at 179-83.

The 1991 guidelines – which explicitly state that they

“may be used” – do not mandate any particular methods of

hazardous tree identification or removal. Instead, they make

suggestions that Park officials are free to accept or reject. Thus,

according to Park Superintendent John Donahue, although “the

Park has used this guideline as a reference point in its attempt to

draft a workable hazard tree management plan,” the Park

officials have not “been able to institute such a plan.” App. at

291.

Although the Park Service has not instituted a written

hazardous tree management plan, its Roads and Trails crews

follow an unwritten plan for identifying and removing hazardous

trees in the Park. In areas of high visitor usage, i.e., where

people are known to congregate and buildings are located, the

Roads and Trails crews inspect trees on foot, looking at
17

individual trees. In undeveloped, low usage areas, Roads and

Trails crews perform “windshield inspections”: while driving

they survey the scene for dangerous conditions. If a tree or limb

impedes traffic on the road, is leaning into the road, overhangs

the road, or otherwise is made known to the crew as defective,

the crew gets out and examines the tree more closely. There is

no specific route or schedule for windshield inspections. 

Once a Park Service crew identifies a hazardous tree, it

will take steps to manage the problem the same or the next day,

depending on the availability of proper equipment. Pursuant to

the unwritten policy, Park Service crews will not top trees and

leave the trunk standing, because a topped tree quickly will die

and become hazardous. 

In considering whether the discretionary function

exception protected the Government in this case, the District

Court looked to three cases for guidance. Because we, too, find

that these cases are particularly useful for our analysis, we will

review them as well.

In Varig Airlines the Supreme Court held that the

discretionary function exception immunized the Government

from suit for its alleged negligence in certifying two separate

planes for use in commercial aviation. 467 U.S. at 821, 104

S.Ct. at 2768. The Government had devised a system of

compliance review in which it would “spot-check” aircraft

manufacturers’ own inspections and tests to establish that an

aircraft design conformed to safety regulations. Id. at 816-17,

104 S.Ct. at 2766. The Court stated that the plaintiffs’

“contention that the FAA was negligent in failing to inspect

certain elements of aircraft design before certificating the

[aircraft] necessarily challenges two aspects of the certification

procedure: the FAA’s decision to implement the ‘spot-check’

system of compliance review, and the application of that ‘spotcheck’ system to the particular aircraft involved in these cases.” 

Id. at 819, 104 S.Ct. at 2767. The Court concluded that the

discretionary function exception immunized the Government’s

decision to implement the “spot-check” system, and stated:
18

the FAA has determined that a program of ‘spotchecking’ . . . best accommodates the goal of air

transportation safety and the reality of finite

agency resources. Judicial intervention in such

decisionmaking through private tort suits would

require the courts to ‘second-guess’ the political,

social, and economic judgments of an agency

exercising its regulatory function. It was precisely

this sort of judicial intervention in policymaking

that the discretionary function exception was

designed to prevent.

Id. at 819-20, 104 S.Ct. at 2767-68. The Court also determined

that “the acts of FAA employees in executing the ‘spot-check’

program in accordance with agency directives are protected by

the discretionary function exception as well,” because the

employees were

specifically empowered to make policy judgments

regarding the degree of confidence that might

reasonably be placed in a given manufacturer, the

need to maximize compliance with FAA

regulations, and the efficient allocation of agency

resources.

Id. at 820, 104 S.Ct. at 2768.

In Mitchell v. United States we concluded that the

discretionary function exception immunized the Government

from a lawsuit brought by a plaintiff whose car collided with a

concrete head-wall at the end of a drainage ditch in the Delaware

Water Gap National Recreation Area. 225 F.3d at 366. We

found that the National Park Service’s decision about how and

when to reconstruct the road was a discretionary decision that

required the Park Service to “balance its mission of preserving

the parklands against the severity of design flaws and the

different levels of deterioration of the road.” Id. at 364. We

stated that “[t]he Service’s choice to focus on a few highly

dangerous portions of the road rather than to distribute its finite

resources along the whole of Route 209 is a policy choice this

court should not second-guess.” Id.
19

The District Court here also considered Autery, which we

discussed above when determining what the Government’s

conduct was that was at issue in this case. In Autery, as we have

noted, a tree fell on a car as it drove through the Great Smokey

Mountain National Park, killing one passenger and injuring

another. At the time of the accident, the Government had an

unwritten policy under which its personnel would conduct visual

inspections of trees while driving along the road, and more

closely inspect any tree that appeared hazardous. The issue

before the court of appeals was “whether controlling statutes,

regulations and administrative policies mandated that the Park

Service inspect for hazardous trees in a specific manner. If not,

then the Park officials’ decision to employ a particular

inspection procedure – and its execution of that plan – is

protected by the discretionary function exception.” Id. at 1528. 

The court found that there was no policy establishing a

mandatory requirement so as to deprive Government personnel

of discretion, and that “the inspection plan in effect at the time of

the accident did not compel park employees to inspect certain

trees on certain days or remove a particular number of trees per

week.” Id. at 1529. The court also noted that “there was no

evidence presented in the district court that park personnel did

not fully comply with the tree inspection procedure.” Id. at

1530. The court then determined that the Government’s

discretionary conduct was susceptible to policy analysis:

To decide on a method of inspecting potentially

hazardous trees, and in carrying out the plan, the

Park Service likely had to determine and weigh the

risk of harm from trees in various locations, the

need for other safety programs, the extent to which

the natural state of the forest should be preserved,

and the limited financial and human resources

available.

Id. at 1531. Accordingly, the court held that the discretionary

function exception deprived it and the district court of

jurisdiction over a suit against the Government based on the

decisions made by Government personnel in designing and

implementing the unwritten tree inspection program in the park. 

Id. at 1531.
20

We conclude that the controlling statutes, regulations, and

policies that led to the creation of the Park Service’s unwritten

plan did not mandate any particular methods of hazardous tree

management. As the District Court noted, the Park Service “was

responsible for choosing the methods by which it maintained the

Park and protected its visitors. The [Park Service’s] decisions

concerning tree inspections, i.e. using windshield inspections for

lower usage areas, involved the type of judgment or choice that

the discretionary function exception protects.” Merando, 2006

WL 2865486, at *6. Like the Government’s hazardous tree

management plan in Autery, the unwritten inspection plan in this

case “did not compel park employees to inspect certain trees on

certain days or remove a particular number of trees per week.” 

Id. at 1529. In these circumstances, both the Government’s

decision to implement “windshield inspections” for low usage

areas of the Park and its selection of the method of execution of

those inspections by Park Service personnel required the

exercise of discretion.

Furthermore, both the Park Service’s decision to

implement the “windshield inspection” program and the

execution of those inspections by Park personnel are susceptible

to policy analysis, and thus they satisfy the second prong of the

Gaubert inquiry for the Government to have immunity for its

conduct. The Government had to consider how best to use its

limited financial and human resources in a manner that balanced

visitor safety with visitor enjoyment and conservation of the

Park. See 16 U.S.C. § 1. Moreover, as in Autery, the

Government had to “determine and weigh the risk of harm from

trees in various locations [and] the need for other safety

programs, the extent to which the natural state of the forest

should be preserved, and the limited financial and human

resources available.” 992 F.2d at 1531.

Mr. Merando attempts to distinguish Autery, contending

that “[t]he Eleventh Circuit found that park inspections there

(windshield inspections) were not mandated to be conducted in a

specific manner, like daily, unlike the inspections here, and

consequently held that the exception applied. . . . Here the

windshield inspections were required to be conducted on Route

615 as the crews traveled it day-to-day, and Park policy
21

mandated that topped trees be reported for removal.” 

Appellant’s rep. br. at 7.

Mr. Merando is incorrect. While the Park Service’s

unwritten plan required personnel to scan for hazardous trees as

they drove the Park’s roads, there is no statute, regulation, or

policy dictating the specifics of that requirement; i.e., Park

Service personnel were not told when or how often to drive

Route 615, or when to exit their vehicles to conduct individual

tree inspections. This case clearly is on all fours with Autery. 

Moreover, although Park Service personnel were required to

report a hazardous tree if they were aware of it, there is no

evidence that they saw the tree that fell on the Merandos. 

Whether they would have been required to report the tree if they

had seen it therefore is irrelevant to our analysis. Indeed, we

will assume that it is likely that Park Service personnel would

have identified and removed the hazardous tree if they had

conducted a close-up, individual inspection of the tree and thus

this tragedy would not have happened. But because of the Park

Service’s decision to implement “windshield inspections” in low

usage areas of the Park, Park Service personnel did not find and

remove the tree. The discretionary function exception

immunizes the Government from a lawsuit based on these

circumstances.

We are struck by the similarity of Park Service’s

“windshield inspections” to the FAA’s “spot-check” program in

Varig Airlines. In both situations, the Government was required

to “establish priorities for the accomplishment of its policy

objectives by balancing the objectives sought to be obtained

against such practical considerations as staffing and funding.” 

Varig Airlines, 467 U.S. at 819, 104 S.Ct. at 2767. Like the

claims in Varig Airlines, Mr. Merando’s claims in this case

necessarily challenge both the Park Service’s decision to

implement the “windshield inspection” program and the acts of

the Park Service employees in carrying out that program. Their

conduct here is indistinguishable in a legal sense from the FAA’s

conduct in Varig Airlines which the Supreme Court held to be

protected by the discretionary function exception.
22

Mr. Merando argues that the FAA’s implementation of

the “spot check” program in Varig Airlines is distinguishable

from the Park Service’s decision to implement the “windshield

inspection” program here, because “the decision [in Varig

Airlines] to use representative sample inspections was a

resource-driven, discretionary act, intentionally leaving the vast

majority of designs and individual planes uninspected,” while in

this case “all of Route 615 was routinely driven, and all of its

cognizable trees were to be inspected in that process. No

‘sampling’ ever occurred, nor did the Park’s employees describe

a policy to sample by inspecting only certain areas of Route 615

as representative of the rest.” Appellant’s rep. br. at 4-5.

Mr. Merando, however, has not sufficiently distinguished

these two cases: like the decision in Varig Airlines, the

Government’s choice here to use “windshield inspections” in

low usage areas of the Park was a discretionary decision, driven

by limited resources, not to individually inspect every potentially

hazardous tree in the Park, even if that meant that some hazards

would remain unidentified. There is no escape from the fact that

in forested areas trees always can fall and pose a danger to any

person in the area and it is not only entirely appropriate that

Government personnel have discretion as to what trees to inspect

and how to make the inspections but necessary that they have

that discretion. Accordingly, it is clear that the execution of the

“spot check” program in Varig Airlines by FAA personnel,

where the personnel were “specifically empowered to make

policy judgments,” mirrors the execution of the “windshield

inspection” program by the Park Service in this case, where the

personnel were not given a specific inspection plan mandating

the particular trees to inspect or the routes to drive.

The Park Service’s determination on how to distribute its

finite resources to locate and remove hazardous trees also is

similar to the decision the Park Service faced in Mitchell, where

the Park Service had to decide how to improve a long stretch of

dangerous and deteriorating roadway. Here, knowing that it

could not inspect every tree in the Park, the Park Service decided

to expend the bulk of its resources on high-visitor use areas of

the Park. Like the Government decision in Mitchell, the Park
23

Service’s decision in this case represents “a policy choice this

court should not second-guess.” Mitchell, 225 F.3d at 364.

Mr. Merando argues that this case differs from Mitchell

because in Mitchell “the Park knew . . . that the road culvert in

question might be a safety hazard, but allocated its finite

resources to other, more pressing road projects,” while in this

case “the Park did not concede that it knew any hazardous trees

existed on Route 615, claimed it did not know the topped tree on

Route 615 which killed the Merandos existed, and was not

following any Park improvement, or resource plan which

prevented it from knowing or from reporting it for removal.” 

Appellant’s rep. br. at 5-6.

Mr. Merando does not explain why his purported

distinction between these two cases is relevant to the question at

hand and we think that the difference in the facts does not create

a legal distinction between the situations. To start with it would

be strange to hold that the Government could be liable for

injuries caused by a risk of which it was unaware but not be

liable for risk caused by a danger of which it was aware but

chose not to remedy. If anything it might be thought that courts

would reach the opposite result. In any event, the Park Service

knew that every tree in the Park could become hazardous to the

safety of its visitors, employees, and property, which is why it

decided to implement the inspection program. Moreover, and

contrary to Mr. Merando’s claim in his reply brief, the Park

Service was following a “resource plan” – namely, its hazardous

tree management plan, which took into account the resources

available for locating and removing hazardous trees throughout

the Park. As in Mitchell, the Park Service made a decision to

“allocate[ ] its finite resources to other, more pressing [ ]

projects,” Appellant’s rep. br. at 5, when it decided to conduct

more thorough inspections in high-use areas of the Park and

implement the “windshield inspection” program in the area of

the Park where the tree was located. Thus, Mr. Merando’s

claimed distinction between this case and Mitchell is incorrect.

In these circumstances, the District Court correctly

concluded that the discretionary function exception immunized

the Government from a lawsuit based on its decisions regarding
24

the maintenance of the Park and the carrying out of that

maintenance by the Roads and Trails crew. While we recognize

that there was a terrible event with awful consequences here,

unfortunately for Mr. Merando the courts simply do not have

jurisdiction over his suit.

D. The New Jersey Landowners Liability Act

In the District Court and on this appeal, the Government

also argued that the courts should dismiss Mr. Merando’s

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)

because the New Jersey Landowners Liability Act, N.J. Stat.

Ann. §§ 2A:42A-2 to 10 bars the action. Inasmuch as we have

concluded that by reason of the discretionary function exception

to the sovereign immunity waiver the federal courts do not have

jurisdiction over this case and we thus will affirm the order of

October 5, 2006, dismissing this action on that basis, we do not

consider the New Jersey statute. 

IV. CONCLUSION

For the foregoing reasons, we will affirm the decision of

the District Court of October 5, 2006. No costs shall be taxed on

this appeal.