Chadd v. United States National Park Service, No. 12-36023, 2015 DJDAR 8542 (9th Cir. July 27, 2015).
In 2010, a sixty-three year old hiker in the Olympic National Park in Washington was attacked by a large (370 pound) mountain goat–one of nearly 300 goats in the park–which gored him in the thigh, severing his femoral artery, and caused him to bleed to death. His survivors sued for damages under the Federal Tort Claims Act (FTCA), alleging that the park service, which had been aware of the aggressive tendencies of this particular goat and had been monitoring the goat, should have killed or removed it prior to the attack (the park service shot and killed the goat after the attack). For some years the service had been attempting to control the behavior of this and other aggressive goats in the park through a process called “hazing,” which involved “aggressive conditioning techniques” like yelling at the goats, and throwing things at them, to teach them to be more fearful of humans.
The FTCA waives the government’s sovereign immunity for tort-type claims, unless the claim at issue falls within “the discretionary function” exception to the waiver. Here, because there was no specific directive on the management of potentially dangerous animals which the park service had violated, and since the service had been engaged in a course of action trying to manage the aggressive goats in the park, the majority concludes that the government’s action is shielded by the discretionary function exception. Accordingly, the majority rules that the plaintiff’s claim is not actionable under the FTCA.
Judge Kleinfeld, in dissent, sees it differently: This “aging tourist, 63, was killed by a horned animal larger than an NFL lineman, which had been the terror of the park for four years…This was no random, unpredictable animal attack. Park personnel knew this particular goat and had been dealing unsuccessfully with its unusual, aggressive behavior towards them and park visitors for four years…This [case does not involve] a policy decision,” but is “analogous to a routine tort case where a homeowner has a fierce dog that has attacked people, but does not get rid of the dog until it has torn some child’s face off. This was ordinary garden variety negligence, which the government must compensate…”