Bolt

Opinion by Judge PAEZ; Concurrence by Judge WALLACE.

After Carol Bolt fell on snow and ice in the common parking area of the U.S. Army apartment complex where she lived, in Fort Wainwright, Alaska, she brought a negligence claim against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 . The district court held that the discretionary function exception to the FTCA’s grant of jurisdiction, see § 2680(a), did not apply because Army policies set forth specific and mandatory rules for snow and ice removal from parking areas. It granted the government’s motion for summary judgment, however, concluding that the Army was similar to a municipality and therefore, in light of Hale v. City of Anchorage, 389 P.2d 434 (Alaska 1964), not liable for injuries due to natural accumulations of snow and ice.

We affirm in part and reverse in part and remand for further proceedings. We affirm the district court’s jurisdictional ruling that the FTCA’s discretionary function exception does not apply, but we reverse the grant of summary judgment pursuant to Hale because the relevant question here *1031 is whether a private landlord, not a municipality, would be liable…

concurring:

I concur in the result reached by the majority. Section 2680(a) of the FTCA provides an exception for claims based on the “exercise or performance or ... failure to exercise or perform a discretionary function or duty.” Under United States v. Gaubert, 499 U.S. 315 , 111 S.Ct. 1267 , 113 L.Ed.2d 335 (1991), we first ask “whether the alleged wrongful conduct violated a specific and mandatory regulation or statute.” Bibeau v. Pac. Nw. Research Found., Inc., 339 F.3d 942, 945 (9th Cir.2003) (citing Gaubert, 499 U.S. at 324-25 , 111 S.Ct. 1267 ). If the answer is yes, our analysis ends, and the discretionary exception does not apply. Id.

Bolt alleges that Sergeant Khan breached his duty to ensure that the residents removed the snow from the lot as well as his duty to report the lot’s hazardous conditions to the appropriate authorities.

The Residents’ Handbook charges Sergeant Khan, as Senior Occupant, with responsibility “for the supervision, as necessary, of resident policing and appearance.” This includes “timely removal of snow and ice from steps, porches, driveways and sidewalks.” Although the Handbook makes residents responsible “for the removal (within 24 hours) of…

Robert A. Sparks, Law Office of Robert A. Sparks, Fairbanks, AK, for the appellant.

Eric J. Feigin, Department of Justice, Civil Division, Washington, D.C., for the appellee.

Before: J. CLIFFORD WALLACE, JOHN T. NOONAN, and RICHARD A. PAEZ, Circuit Judges.

Opinion by Judge PAEZ; Concurrence by Judge WALLACE.

PAEZ, Circuit Judge:

After Carol Bolt fell on snow and ice in the common parking area of the U.S. Army apartment complex where she lived, in Fort Wainwright, Alaska, she brought a negligence claim against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 . The district court held that the discretionary function exception to the FTCA's grant of jurisdiction, see § 2680(a), did not apply because Army policies set forth specific and mandatory rules for snow and ice removal from parking areas. It granted the government's motion for summary judgment, however, concluding that the Army was similar to a municipality and therefore, in light of Hale v. City of Anchorage, 389 P.2d 434 (Alaska 1964), not liable for injuries due to natural accumulations of snow and ice.

We affirm in part and reverse in part and remand for further proceedings. We…