Oberson v. United States Department of Agriculture
Filed January 31, 2008,
Cite as 04-35268

Federal Service’s Immunity from Suit in Tort Claim Denied

Brian Musselman was injured in a snowmobile accident at Yellowstone National Park’s Big Sky Trail in Montana. Before the incident, Musselman and his friends – Kalahar, Johnson and Leinberger, joined a group of people in a party at a restaurant nine miles north of West Yellowstone where they drank beer, eat steak, and tell stories.

After some time, they left the place. Musselman and Johnson were the first to leave the restaurant and rode their snowmobile towards the direction of the Big Sky Trail. Kalahar and Leinberger followed.

Normally, the Forest Service maintains the trail. It had posted speed limit signs on the trails in the area to warn snowmobile riders against speeding or traveling beyond 60 mph.

The site of the accident is a stretch of flat trail which suddenly drops into a steep hill. The slope is about seventeen feet of elevation over approximately 80 feet or a 25% slope.

Musselman, being an expert snowmobiler, arrived at the hill first. Johnson came next and crashed at the bottom of the hill. Musselman, apparently got off from his snowmobile to help Johnson, when Kalahar and Leinberger came over the hill side by side at tremendous speeds. One of them hit Musselman, resulting in a traumatic brain injury.

As a result of the injury, Musselman was “unable to swallow, speak, understand complex communication, and independently conduct activities of daily living”. He currently resides in an adult care facility.

Lori Oberson, his legal guardian, and others brought suit against the United States under the Federal Tort Claims Act (FTCA), alleging that the United States Forest Service negligently failed to correct or warn of a dangerous condition on the Big Sky snowmobile trail where Musselman was injured.

The government filed a third-party complaint against Jamie Leinberger (Leinberger), Patrick Kalahar and Tim Johnson, alleging that their negligence caused Musselman’s injuries.

Default was taken against Johnson. Kalahar settled with plaintiffs and was dismissed before trial.

The district court entered judgment for Lori Oberson as guardian for Musselman against the United States. According to the district court, the Forest Service’s failure to warn of the hazardous hill was not the result of a decision grounded in public policy or of a choice among competing policy considerations.

The court concluded that the Forest Service’s failure to correct or warn of this hazard was not the type of discretionary decision that would be shielded from tort liability.

The Ninth Circuit issued a published order in which it certified to the Montana Supreme Court the determinative question of the appropriate standard of care. The Montana Supreme Court responded in Oberson v. U.S. Dep’t of Agric., 171 P.3d 715 (Mont. 2007). Based on that decision, the Ninth Circuit amended its prior opinion.

In ruling the Ninth Circuit court of appeals affirmed, holding that the district court did not err in entering judgment against the Forest Service.

The court of appeals therefore affirmed the judgment which held that the federal Forest Service did not enjoy immunity from suit pursuant to the discretionary function exception to the Federal Tort Claims Act’s waiver of immunity in the aftermath of a snowmobile accident in a known hazardous area of a national park.