Anyone having a business relationship with the U.S. Government who believes the Government or one of its representatives has acted, or failed to act in such a manner as to cause harm, should be aware of the restrictions placed on governmental liability by the Federal Tort Claims Act, especially the discretionary function exception to liability as interpreted by the courts.

On July 27, 2015, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of a lawsuit filed under the Federal Tort Claims Act (FTCA) against the United States and the National Park Service following the death of a visitor to the Olympic National Park in the State of Washington. The case is Chadd v. United States, et al.. A large, wild mountain goat was known by National Park Service personnel to pose a threat to anyone at any time and, in 2010, it fatally attacked a visitor to the Olympic National Park, and only then was it “destroyed.” 

The lawsuit claimed that Park Service personnel breached a duty of reasonable care owed to Park visitors by failing to destroy the mountain goat despite the threats it was known to pose.

Bound by Ninth Circuit precedent, Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc), the panel majority held that the FTCA’s discretionary function exception shielded the Government and the Park Service from any liability for the death of Mr. Chadd. The Court of Appeals noted that when a particular action or inaction is susceptible to a policy analysis, then the discretionary function exception to government liability applies.

However, as pointed out by the dissenting Senior Circuit Judge Kleinfeld, the death was caused by “a horned animal bigger than an NFL lineman that had been the terror of the Park for four years…and this was no random, unpredictable animal attack.”