Oberson

Oberson v. United States Department of Agriculture, Forest Service

Good Law
514 F.3d 989·38 Envtl. L. Rep. (Envtl. Law Inst.) 20031·2008 U.S. App. LEXIS 1943
United States Court of Appeals for the Ninth CircuitJanuary 30, 2008No. 04-35268California5,066 words

Opinion

Lead Opinion

Schwarzer, J.

AMENDED OPINION **

I. PROCEDURAL BACKGROUND

Brian Musselman (Musselman) was gravely injured in a snowmobile accident on a National Forest trail. Lori Oberson, his legal guardian, and others brought this action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680 , 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 United States filed a third-party complaint against Jamie Leinberger (Leinberger), Patrick Kalahar (Kalahar) and Tim Johnson (Johnson), alleging that their negligence caused Musselman’s injuries. Default was taken against Johnson. Kalahar settled with plaintiffs and was dismissed before trial. Following a bench trial, the district court entered judgment for Lori Oberson as guardian for Musselman against the United States in the amount of $4,518,720 and against Leinberger for $5,648,40o.

The Forest Service timely appealed, citing as error the district court’s refusal to apply the discretionary function exception of the FTCA and its finding of negligence. Plaintiffs cross-appealed from the district court’s…

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