2004 | Cited 0 times | E.D. New York | January 29, 2004


This action is brought by Isabel Cohen and her husband, Murray Cohen,under the Federal Tort Claims Act, 28 U.S.C. § 2671, for personalinjuries sustained by Isabel Cohen as a result of her fall on the GilaCliff Dwellings Trail in New Mexico. Plaintiffs have alleged thatdefendant was negligent in: (1) failing to repair a broken or eroded logretainer bar; (2) allowing the trail to become covered with excess loosegravel; (3) failing to erect handrails; and (4) failing to postsufficient warnings along the trail. Defendant asserts the discretionaryfunction exception of 28 U.S.C. § 2680(a) as a defense and denies theallegations of negligence under both the New Mexico. Recreational UseStatute and an ordinary negligence standard.

The case was tried to the Court without a jury. Having reviewed thetrial testimony and the post-trial submissions of both parties, theCourt, based on the findings of fact which follow, concludes thatdefendant is entitled to judgment.


In April of 1996, plaintiffs were vacationing in Arizona and New Mexicowith Ms. Cohen's two brothers, Alfred and Elliot Herman, and their niece,Tama Herman. The party visited several national parks including the GrandCanyon and the Painted Desert. On April 8, 1996, the Cohens and Ms.Cohen's two brothers (Tama Herman departed early to return to NewPage 2York) visited the Gila Cliff Dwellings National Monument in NewMexico. The park at Gila Cliffs consists of a nature trail and cliffdwellings that were inhabited by the Mogollon Indians 700 years ago. Thecliff dwellings and the surrounding landscape became the Gila CliffDwellings National Monument in 1907.

The trail at Gila Cliffs is a one mile loop, which begins at theparking lot and crosses a footbridge over the Gila River. The trail is astrenuous, rough path made up of native material, and it climbs mortarstone steps and includes log retainer bars, which help to prevent soilerosion. Tr. 97, 106, 163, 170. From the canyon bottom, it isapproximately 180 feet up to the cliff dwellings. Tr. 98. At the top ofthe trail, there are walkways and paths so that visitors can tour thecliff dwellings. The trail then conies down across a cliff face, to anopen dirt road, where it switches back down to the river, Tr. 163. Thewhole trail takes about one hour to complete. Tr. 102.

At the time of plaintiffs' visit, there was no entrance fee to thecliff dwellings, nor was there a fee charged to use the trail. All toursat the Gila Cliff Dwellings are self-guided. A sign posted at the head ofthe trail warns visitors of the strenuous, unpaved, rough nature of thetrail and advises visitors to wear proper footgear. Tr. 101-102. Attachedto the trail sign is a box which contains trail guide booklets that canbe borrowed or purchased by visitors for fifty cents. Tr. 102-103. Thetrail guide contains a variety of information about the terrain of thetrail, such as its steepness, and it discusses how the trail and thecliffs are preserved in as natural a condition as possible. Safetyinformation and precautionary measures are also discussed throughout theguide. Tr. 103. All visitors have to pass both the sign and the trail boxbefore starting theirPage 3ascent to the cliffs.1 Tr. 101.

Additional information about the trail at Gila Cliffs and the historyof the monument is available at the contact station and the visitors'center. The contact station, located at the head of the trial, functionsas a mini-visitors center. Interpretive information about the monumentand its surroundings is available inside the station, and warnings andother pamphlets are posted outside. Tr. 100. The visitors center islocated about one mile from the trail head. Tr. 99. It containsadditional information about the history of the area and the condition ofthe trail.

On April 8, 1996, the day of plaintiffs' visit, the weather was clearand dry. Plaintiffs paid no admission fee to use the trail or to view thecliff dwellings.2 Upon entering the park, plaintiffs made their wayto the trail head. Ms. Cohen testified that she saw several signs nearthe beginning of the trail, and when asked if she read the signs, shestated "If there was print, I probably read it." Tr. 20. Mr. Cohensimilarly stated that he glanced at the signs, but "not in a verydetailed way." Tr. 50. Plaintiffs did not purchase a trail guide, andalthough Elliot Herman testified that he purchased one, neither plaintiffrecalled 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 guidewasPage 4when 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 waswearing walking sneakers with treads, made the ascent without incident,as did the rest of her party. Tr. 22. Once plaintiffs reached the top ofthe trail, they leisurely toured the cliff dwellings. At the conclusionof their tour, the party returned to the trail and started their descentback to their car.

As plaintiff proceeded down the trail, she was talking with members ofher party, looking both up and down as she was walking, Tr. 41. Plaintifftestified that the down portion of the trail was rather steep, and shenoted that there were no signs indicating the steep condition or warningof broken log retainer bars. Tr. 30. At some point near the switchbackarea, plaintiff felt her left foot sliding out from under her, and shestated that her "right foot stopped at the log but there was no piece oflog for [her] left foot to stop at." Tr.31. Plaintiff recalled slipping,twisting, and then falling. Tr. 30. There were no handrails on thatportion of the trail, so there was "nothing for [her] to have caught onto when [her] foot twisted or when [she] slipped." Tr. 30. Plaintiffbroke her ankle as a result of the fall, and was unable to continuewalking on her own.

Immediately after her accident, plaintiff looked around to see whatcaused her to slip and fall. Tr. 25. She testified that she "noticed thatthe step in back of [her], that the piece of wood did not go all the wayacross the span, across the width of the step, that a piece of wood, asignificant piece of wood was missing." Tr. 25. When asked if a piece ofthe 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, didnot 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 downcalmly." Tr. 48. After his wife was on the ground, Mr. Cohen testifiedthat 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 theleft side of the-the step coming down." Id.

Elliot Herman testified that he "sort of in [his] peripheral vision sawher slip." Tr. 68. He stated that they were chatting, she twisted herankle, and then "she just went down, like straight down, like you wouldsit down." Tr. 68. Mr. Herman did not recall any discussion about thecondition of the trail, either before plaintiff fell or after heraccident. He did, however, have a phone conversation with Ms. Cohenbefore his deposition in which they discussed her accident. Tr. 68, 89.During their conversation, Ms. Cohen talked about steps on the trail, butshe did not mention that one of the steps was broken. Tr. 69.

Alfred Herman took a picture of plaintiff seated on the trail shortlyafter her fall. Tr. 26. During his deposition, Mr. Herman was asked tocircle the area in the picture where plaintiff fell. Notably, Mr. Hermanindicated an area different than the one described by plaintiff to be thearea where she fell. Tr. 84, 85; see also Defendant's Exhibit 3annexed 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 tosay that "most" of the logs on the rest of the trail extended across thepath. Tr. 75.Page 6

Plaintiff remained seated on the trail, while her brother ElliotHerman went to get assistance. As she was waiting for help, plaintiffencountered a group of young people who were repairing the trail. Tr. 34.When no one from Park Services came to help plaintiff, her brotherElliot, along with several of the young people who were working on thetrail, assisted her down the rest of the trail. Tr. 34.

Once at the end of the trail, plaintiff returned to her van andstretched her leg out in the back seat. Before she went to the hospital,Gila Cliff Dwellings Ranger John Harding spoke with plaintiffs andcompleted an incident report. See Defendant's Exhibit H.Remarkably, the incident report makes no mention of a broken or erodedlog retainer bar; it merely reports that Ms. Cohen "felt that steepnessand slickness of trail caused the injury." Id.: see also Tr.35.

District Ranger and Park Superintendent, Sue Kozacek, learned ofplaintiff's accident the day after it occurred, on April 9, 1986. Severalmaintenance workers at the park reported that plaintiff fell on the downtrail in the area of the switchback. Tr. 104, 105. After being advised ofthe incident, Sue Kozacek and Site Manager Dennis Carruth conducted aninspection of the entire down trail. When asked what their inspection ofthe 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 thearea 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 thetrail. She stated thatPage 7loose gravel is part of the natural condition of the trail, andthat the trail was inspected once or twice daily. She noted that althoughsome loose gravel requires immediate sweeping, not all loose gravelrequires such immediate attention. Tr. 134. According to Ms. Kozacek,immediate sweeping would only be necessary "[i]f there was a significantamount of gravel on the trail, if there were large rocks on the trail, ifthere were branches that had fallen." Id. She examined thepicture of the accident site taken by Alfred Herman and concluded thatthe picture did not reveal a condition that required immediate sweeping.Id.

David Karplus, an employee of the National Park Service and an expertin trail maintenance and design, testified about the nature of the GilaCliff Dwellings trail and its construction. In 1994 and 1995, Mr. Karplusspent several weeks at Gila Cliff Dwellings assessing the safety of thetrail and the necessity of certain repairs, including re-routing portionsof the down trail. Tr. 163-65. Mr. Karlpus testified about the techniquesused to prevent soil erosion and to preserve its natural condition. Morespecifically, he testified about log retainer bars, which are used tohold the trail in place. He noted that the log retainer bars vary in sizebased on the width of the trail and the length required to secure thelog. Tr. 169-170, 191. He stated that the retainer bars are completelyburied when they are first installed, but over time with weather and foottraffic, the bars can become exposed. Tr. 170-71. In fact, he testifiedthat some level of exposure was expected and that the level or grade ofexposure varied depending upon the wind, and the amount of foot trafficamong other things. He expected that a foot to a foot and a half of aretainer log would be exposed within a year. Tr. 192.

David Karplus further testified that exposed log retainer bars in andof themselves are not hazardous to trail visitors, nor do they constitutea condition requiring repair or maintenance. Tr.Page 8183-185. Rather, he stated that immediate repair might be necessaryif 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 partiallyexposed, rather than in a state of disrepair. He further noted that thecondition of the retainer bars was in keeping with his plan for therenovated trail in 1995. Moreover, similar to Sue Kozacek, David Karplusstated that the retainer bars in the picture did not appear to requireany maintenance. Tr. 184-85.

David Karplus also testified about loose gravel on nature trails. Hestated that nature trails are commonly covered in loose gravel, and thatloose gravel is most often the result of gravity or water. Tr. 185. Henoted that gravel on a trail becomes a hazardous condition when thegravel is big or "if the gravel is completely covering the trail so thatthere's nowhere a person could put their feet with any kind of goodfooting." Tr. 185. David Karplus again examined the photograph of theaccident site and determined that the gravel shown in the picture did notrise 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 thesovereign immunity of the United States government and provides that it"shall be liable for injuries resulting from the negligent acts of itsemployees in the same manner and to the same extent as a privateindividual would be liable under like circumstances." Henretig v.United States, 490 F. Supp. 398, 402 (S.D. Fla. 1980); see alsoCoulthurst v. United States, 214 F.3d 106, 108 (2d Cir. 2000). Inpertinent part, the FTCA authorizes suit against the federal government"to recover damages for injury . . . caused byPage 9the negligent or wrongful act or omission of any employee of theGovernment while acting within the scope of his office or employment,under circumstances, where the United States, if a private person, wouldbe 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. See28 U.S.C. § 1346(b)(1) (noting that the under the FTCA, the UnitedStates "would be liable to the claimant in accordance with the law of theplace where the act or omission occurred").

A. The Discretionary Function Exception

The discretionary function exception acts as a significant limitationon the FTCA's waiver of sovereign immunity. See Coulthurst, 214F.3d at 108. The exception exempts from coverage "[a]ny claim . . .based upon the exercise or performance or the failure to exercise orperform a discretionary function or duty on the part of a federal agencyor an employee of the Government, whether or not the discretion involvedbe abused." 28 U.S.C. § 2680(a). The discretionary function exceptionwas enacted to "`prevent judicial `second-guessing' of legislative andadministrative decisions grounded in social, economic, and politicalpolicy through the medium of an action in tort.' " Palay v. UnitedStates, 349 F.3d 418, 427 (7th Cir. 2003) (quoting UnitedStates v. Gaubert, 499 U.S. 315, 323 (1991)). Where the exceptionapplies, the United States has chosen not to waive its immunity, and "thecourts are without jurisdiction over such claims." O'Toole v. UnitedStates of America, 295 F.3d 1029, 1033 (9th Cir. 2002).

In order for the discretionary function exception to apply, twoconditions must be satisfied. First, the acts alleged to be negligentmust be discretionary, meaning that the actsPage 10"involve an element of choice and are not compelled by statute orregulation." Coulthurst, 214 F.3d at 109. If a "federalstatute, regulation, or policy specifically prescribes a course of actionfor an employee to follow," then the first requirement of judgment orchoice is not met. Gaubert, 499 U.S. at 322 (internalquotations omitted). Second, the "judgment or choice in question mustbe grounded in considerations of public policy or susceptible to policyanalysis." Coulthurst, 214 F.3d at 109 (internal quotationsomitted) (citing Gaubert, 499 U.S. at 322-23; Berkovitzv. 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 aretwo discrete issues: 1) the Park Service's decision to include the logretainer bars on the trail, which is a question of design and 2) the ParkService's maintenance of those log retainer bars. See ARA LeisureServ. v. United States, 831 F.2d 193, 195 (9th Cir. 1987)(distinguishing between the initial design decision not to includeguardrails and the failure to maintain a stretch of road in a safecondition).

a. Design Question

David Karplus testified that there are no written guidelines specifyinghow a trail should be designed. Tr. 189. He stated that the National ParkService publishes guidelines for trail design, but these guidelines donot function as rules which must be followed; rather they familiarizepeople with the various issues that come up in creating and preservingtrails. Tr. 189-90. Since there is no mandatory statute, regulation, orpolicy governing the design and construction of nature trails, the ParkService legitimately exercised discretion in deciding to include logretainer bars in the trail, and thus the first requirement of thediscretionary function exception test is satisfied. See, e.g., Baumv. United States, 986 F.2d 716, 722-23 (4th Cir. 1993)Page 11(finding that maintenance of guardrails and bridges on parkproperty are decisions subject to the judgment of the Park Service).

The remaining issue is whether the judgment involved in choosing logretainer bars is of the type normally involving considerations ofeconomic, social, or political history. Here the government contends that"[d]esign and construction decisions on the Gila Cliff Dwellings Trailare guided by the public policy of maintaining the park in as natural asetting as possible." See Defendant's Post-Trial Submission at13. Sue Kozacek, the District Ranger, noted that a focal point of thevisitor's experience at the Gila Cliffs is the historical significance ofthe monument and its relation to its natural surroundings. Tr. 96.Furthermore, David Karplus stated that the addition of non-nativematerial to the site detracts from the visitor's ability to experiencethe site closely. Tr. 190.

It is well-established that "aesthetic considerations, includingdecisions to preserve the historical accuracy of national landmarks,constitute legitimate policy concerns." Shansky v. UnitedStates, 164 F.3d 688, 693 (1st Cir. 1999). Indeed, "Congressinstructed the Park Service to endeavor `to conserve the scenery and thenatural and historic objects' of the property in its charge `and toprovide for the enjoyment of the same in such a manner and by means aswill 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 preventsoil erosion and keep the trail in place. Furthermore, they areconsistent with the environment of the Gila National Forest, and clearlyserve the Park Service's policy of preserving nature. Accordingly,defendant's decision to incorporate them in its design of the Gila CliffsTrail is protected by the discretionary function exception and to theextent that plaintiffs' claim is based on this designPage 12preference, this Court lacks jurisdiction. See ARA LeisureServ. v. United States, 831 F.2d 193 (9th Cir. 1987) (finding thatthe Park Service's decision to design and construct a park withoutguardrails was covered by the discretionary function exception on theground that the park policies required roads to be aestheticallypleasing).

b. Maintenance of the Log Retainer Bars

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

Here, similar to the design question, the first requirement of thediscretionary function exception is met. Plaintiff has provided noevidence of, nor does the record reveal, an explicit policy mandating themaintenance of the log retainer bars. Thus the Park Service's repairdecisions are the product of choice, protected under the first prong ofthe discretionary function exception test. The issue is whether the ParkServices' repair decisions are grounded in policy concerns.

Although several circuits have found that a failure to repair was basedon public policy concerns, the Court concludes that there is no suchpublic policy rationale in this case. Where the courts have found afailure to repair within the ambit of appropriate discretion, thechallenged governmental activity most often involved the balancing ofcompeting 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 ParkService's decision not to repair orPage 13redesign a culvert head on a drainage ditch); Cope v.Scott, 45 F.3d 445 (D.C. Cir. 1995) (determining that Park Service'sdecision not to repave a slippery stretch of a parkway was protectedbecause determining the appropriate course of action would require abalancing of factors such as the overall purpose and allocation offunds); Baum v. United States, 986 F.2d 716, 724 (4th Cir.1993) (noting that decisions involving improvements to public facilitiesoften 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 maintenancework-"maintenance work that would be expected of any other landowner"— and it "is not the kind of policy decision that thediscretionary function exception protects." O'Toole v. UnitedStates, 295 F.3d 1029, 1036 (9th Cir. 2002) (finding government'sdecision to forgo needed repairs of irrigation system was not protectedby discretionary function exception because such repairs constitutedroutine maintenance); ARA Leisure Serv. v. United States,831 F.2d 193 (9th Cir. 1987) (holding that discretionary function exceptiondid not apply to preclude government's liability where the Park Servicepermitted a road to erode to half its width creating an unreasonablydangerous condition). Construing the discretionary function exceptionbroadly so as to include routine maintenance work would undermine thegoal 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 abroad construction, it could almost completely nullify the goal of the[FTCA]."). "[I]n order to effectuate Congress's intent to compensateindividuals harmed by government negligence, the FTCA, as a remedialstatute, should be construed liberally, and its exceptions shouldbe read narrowly." O'Toole, 295 F.3d at 1037.Page 14

The Court's holding that the discretionary function exception doesnot shield the government from liability for failure to maintain the logretainer bars only goes to the Court's jurisdiction over the plaintiffs'negligence claim. The merits of plaintiffs' negligence claim will beaddressed later in this opinion.

2. Handrails

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

While the Court finds defendant's reasons for not erecting hand railson the down trail persuasive, the decision falls squarely within thediscretionary function exception, and thus the Court has no jurisdictionover this claim. See. e.g., Shansky v. United States,164 F.3d 688 (1st Cir. 1999) (decision not to place handrails at exit wassusceptible to policy analysis and thus protected by discretionaryfunction exception); Zuk v. United States, 698 F. Supp. 1577,1579 (S.D. Fla. 1988) (failure to erect guardrails comes withindiscretionary 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 functionexception).

3. Warnings

Plaintiffs also claim that defendant was negligent in failing to postsufficient warningPage 15signs about the steep nature of the trail and about the presence ofdefective log retainer bars. Where a specific hazard is involved, such asa broken log retainer bar, the decision whether to place a warning is notdiscretionary. See Duke v. Dep't of Agriculture, 131 F.3d 1407,1411 (10th Cir. 1997). Thus, if the log retainer bars in question wereindeed broken, defendant would have no discretion in deciding whether towarn visitors of the condition.3

In contrast to specific hazards, the decision to place general warningsabout the nature of the trail is discretionary, and is therefore withinthe scope of the exception. See id. at 1411. (holding that afailure to warn is not discretionary where a specific hazard is involved,but finding such a situation "distinct from the multitude of hazards thatmight exist in . . . a wilderness trail through a national park orforest, where warnings might detract from the area's character or safetystructures 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 deemeddiscretionary, the defendant would still prevail because no liability mayattach for failure to warn of obvious conditions. See Arenivas v.Continental Oil Co., 102 N.M. 106, 109 (N.M. Ct. App. 1984) (findingthat landowner has no duty to warn of open and obvious dangers). All ofthe conditions (other than the defective log retainer bars) of whichplaintiffs complain, such as the steepness of the trail and the lack ofhandrails, were visible and obvious. See Zuk, 698 F. Supp. at1580-81; Henretig, 490 F. Supp. at 405.

B. Defendant Owed Plaintiffs No DutyPage 16

1. Applicability of New Mexico's Recreational Use Statute

The liability of defendant under the laws of New Mexico. depends uponthe application of New Mexico's Recreational Use Statute ("NMRUS"). TheNMRUS limits landowners' liability for damages suffered by those whoenter their land free of charge to pursue recreational activities. Inpertinent 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 beapplied in FTCA cases where the federal land in question is used forrecreational purposes. See Maldonado v. United States,893 F.2d 267 (10th Cir. 1997) (finding that the NMRUS applies to lands ownedby 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 staterecreational use statutes).

The parties do not dispute that the park at Gila Cliffs was open to thepublic for recreational activities. They do, however, dispute whetherthere was a charge to enter the park. Defendant maintains that there wasno admission fee and thus it is entitled to the protections of the NMRUS.Plaintiffs argue that the NMRUS does not apply because they previouslyPage 17purchased a $10 Golden Age Passport, which permitted them to enterall National Parks, and a member of their party (Mr. Herman) purchased atrail guide for fifty cents.

The NMRUS does not define "without charge or other consideration," andit appears that the New Mexico. Supreme Court has never addressed themeaning of the term as used in the statute. The majority view among othercourts interpreting recreational use statutes is that" `charge' means anactual admission fee paid for permission to enter the land forrecreational purposes." Hardy v. Loon Mountain RecreationCorp., 276 F.3d 18, 20-21 (1st Cir. 2002) (citing inter aliaHoward v. United States, 181 F.3d 1064 (9th Cir. 1999) (finding thatpayment of fee to private teacher for sailing lessons in restrictedmilitary harbor is not a charge by the government); Wilson v. UnitedStates, 989 F.2d 953 (8th Cir. 1993) (holding that fee charged touse 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 chargewhere the parking fee was per car, not per occupant, and any other meansof accessing the park was free); see also Zuk v. United States,698 F. Supp. 1577, 1582 (S.D. Fl. 1988) (finding plaintiff's claim barredunder Florida's RUS where there were licensing and operating fees butthere was no charge to enter or use the park). The Court concludes thatthe New Mexico. court would most likely adopt the majority view that theword "charge" as used in the recreational statute requires a quidpro quo arrangement. See Hardy, 276 F.3d at 20 (notingthat district courts sitting in diversity must predict how a state courtwould resolve a novel legal issue).

At the time of plaintiffs' visit to the Gila Cliff Dwellings NationalMonument, there was no admission fee. Plaintiffs testified that they paidno fee to enter the park, and they did not recall whether they showedtheir Golden Age Passport. Even if plaintiffs had shown theirPage 18passport, however, it would not affect the applicability of theNMRUS because the passport was not required for admission. Thus, therewas no quid pro quo arrangement. Plaintiffs' further claim thatthe trail pamphlet constitutes a "charge" is similarly misplaced.Visitors were not required to purchase a trail guide; they could purchasea 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 consideredtrespassers. See NMRUS § 17-4-7(4) (stating that anyowner who opens lands to the public without charge and grants permissionto use land for recreational purposes "does not thereby assume anygreater . . . duty of care . . . to such person, than if suchpermission had not been granted and such person or group weretrespassers"). In order to determine defendant's duty of care totrespassers, the Court must look to the New Mexico. Uniform JuryInstructions. See Maldonado v. United States, 893 F.2d 267,269 (10th Cir. 1990) (noting that "the NMUJI have been approved by theNew Mexico. Supreme Court and trial courts in New Mexico. are bound tofollow the Supreme Court's order requiring the use of uniform juryinstructions" (internal citations and quotations omitted)). According tothe NMUJI, "[t]he owner of land has no liability to a trespasser injuredon his land from a natural condition of that land." NMUJI § 13-1307.Rather, a landowner is only liable to an injured trespasser if thetrespasser's injury resulted from an unreasonably dangerous artificialcondition. 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 ofnature necessary to prevent trail erosion, and therefore argues that thelog retainer bars do not constitute an artificial condition. While it istrue that log retainer bars help to stabilize the natural condition ofthe Gila Cliffs trail, they are nevertheless "artificial" in that theyalter the park's natural condition. Indeed, defendant itself offeredtestimony 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 becausethey do not create "an unreasonable risk of death or bodily harm." NMUJI§ 13-305. As defendant notes, plaintiffs have offered no experttestimony that log retainer bars are inherently dangerous or flawed.Moreover, David Karplus, defendant's trail expert, testified that somedegree of erosion was expected with log retainer bars and such erosion inand of itself does not constitute a hazardous condition. Finally, SueKozacek stated that prior to plaintiff's fall, there had been no othersimilar accidents on the Gila Cliffs trail. Therefore, defendant had noactual or constructive knowledge of any dangerous condition posed by thelog retainer bars. Tr. 129-130.

b. Loose Gravel

Loose gravel, unlike the log retainer bars, constitutes a naturalcondition. David Karplus and Sue Kozacek both testified that loose gravelis common on nature trails, and David KarplusPage 20stated that loose gravel is often the result of gravity or water.Tr. 185. Because loose gravel is a natural condition, according to NMUJIdefendant owes plaintiff no duty for any injury she suffered as a resultof the loose gravel. See NMUJI § 13-307 (landowner notliable to trespasser injured on his land as a result of a naturalcondition).

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

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

1. Log Retainer Bars

Plaintiffs failed to produce sufficient evidence that the log retainerbars were defective or improperly maintained. As an initial matter, therewas no proof of a broken log retainer bar. Isabel Cohen described thecondition that made her fall as a missing piece of wood. She stated, "Inoticed that the step in back of me, that the piece of wood did not goall the way across the span, across the width of the step, that a pieceof wood, a significant piece of wood was missing." Tr. 25. Murray Cohensimilarly stated that the log retainer bar did not extend all the wayacross the step. He testified that "there was no piece going from theleft side of the — step coming down." Tr. 48. Alfred Herman,likewise stated that the log retainer bar did not appear to bePage 21broken, but rather it did not extend the width of the trail. Hestated, "It was less broken, more eroded." Tr. 74. Moreover, Sue Kozacekfound no broken log retainer bars during her inspection of the down trailthe day after plaintiff's accident. Tr. 107. In fact, she stated that thetrail surface was in good condition and she found no rotted or out ofplace log retainer bars. Tr. 107. Finally, the incident report, whichplaintiffs helped to complete the day of the accident, makes no mentionof 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 logretainer bar. Indeed, David Karplus listened to plaintiff's observationsand her account of the accident, as well as Sue Kozacek's testimony aboutthe condition of the trail the day after plaintiff's fall, and concludedthat the testimony of both witnesses was consistent with a partiallyexposed 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 retainerbars is consistent with the trail's normal condition, and he noted thatsuch exposure often occurs when log retainer bars are installed with dirtfill, as they were at Gila Cliffs. When log retainer bars are initiallyPage 22installed they are completely buried in dirt fill. Over time andwith use, however, the dirt fill compacts and compresses around the logretainer bar, causing the blending point of the log retainer bar tobecome exposed. Tr. 171. David Karplus testified that some degree ofexposure, 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, partiallyexposed log retainer bars do not pose a hazardous condition. Tr. 183.Indeed, partial exposure is an inherent part of the design of the logretainer bars. Mr. Karplus also noted that log retainer bars have a lifeexpectancy of 7 to 15 years, and he stated that the log retainer bars atissue in this case were replaced in 1995, the year before the accident.

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

2. Loose Gravel

Plaintiffs have failed to demonstrate that the loose gravel on thetrail constituted a negligent condition. Nature trails, like the trail atGila Cliffs, are composed of natural materials and the presence of loosegravel and other natural material on the trail, such as dirt or pineneedles, is common. Moreover, loose gravel is clearly visible to thosewalking on the trail, and itPage 23rarely creates a hazardous condition; immediate sweeping is onlynecessary where there is a significant amount of gravel on the trail orwhere there are large rocks or fallen branches. Tr. 134, 185.

Plaintiffs have offered no proof that the amount of gravel on the trailwas excessive, nor have they offered proof that there were large rocks orbranches blocking the trail; their testimony merely recounted the factthat there was some gravel on the trail. Tr.25, 51. Moreover, both SueKozacek and David Karplus examined plaintiff's photograph of the accidentsite and concluded that the amount of gravel depicted in the photographdid not amount to a condition requiring immediate sweeping. Finally, theconclusion that the loose gravel did not present an unreasonable dangeris reinforced by the absence of other incident reports. SeeHenretig, 490 F. Supp. at 404.


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


1. The 1992 annual statement for interpretation of the Gila CliffDwellings National Monument, which was prepared by the then site manager,concluded that the signage at the park contained insufficient informationabout the altitude and rustic nature of the trail. In response to thereport, the park constructed a new sign warning of the trail's dangersand revised the trail pamphlet. The new sign and the revised pamphletwere in place and available at the time of plaintiffs' visit.

2. Seven or eight years prior to plaintiffs' visit to the CliffDwellings, they purchased a Golden Age Passport for ten dollars. Thepassport allowed plaintiffs to enter any national park free of charge.Such a pass was not required at Gila Cliffs since admission was free, andMr. Cohen testified that he could not recall whether he showed the passupon entering the park.Tr.55.

3. As discussed later, however, plaintiffs failed to prove that thelog retainer bars were defective, and thus the Court does not need toaddress this issue.

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