United States Ninth Circuit

In plaintiffs' action against the government under the Federal Tort Claims Act (FTCA) alleging the Forest Service negligently failed to correct or warn of a dangerous condition on a snowmobile trail resulting in serious injury, a judgment for plaintiffs is affirmed where: 1) the discretionary function exception did not shield the Forest Service from liability; and 2) the Forest Service's negligence was established under Montana law. (Amended and superseding opinion)

Appellate Information

• Argued 12/07/2005
• Decided 01/30/2008
• Published 01/30/2008

Judges

• SCHWARZER, Senior District Judge., Before:  RONALD M. GOULD and MARSHA S. BERZON, Circuit Judges, and WILLIAM W SCHWARZER, Senior District Judge.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Tom L. Lewis, Lewis, Slovak & Kovacich, Great Falls, MT, and Andrew D. Huppert, Petit, Hock & Huppert, Missoula, MT, for Plaintiffs/Appellants Lori Oberson, Legal Guardian for Brian Musselman, Kimberlee Musselman, individually and as Natural Mother of Devon Musselman, a minor.


• For Appellees:
  
• Bernard F. Hubley, USHE-Office of the U.S. Attorney, Helena, MT, and H. Thomas Byron, III, U.S. Department of Justice, Civil Division/Appellate Staff, Washington, DC, for Defendant/Third-Party Plaintiff/Appellee United States Department of Agriculture, Forest Service., Lucy T. France, Garlington, Lohn & Robinson, PLLP, Missoula, MT, for Defendant/Third-Party Plaintiff State of Montana, by and through the Department of Fish, Wildlife and Parks., Gig A. Tollefsen, Berg, Lilly & Tollefsen, Bozeman, MT, for Defendant/Third-Party Plaintiff West Yellowstone Chamber of Commerce., Jamie Louis Leinberger, Bay City, MI, for Third-Party Defendant Jamie Louis Leinberger., Marshal L. Mickelson, Corette, Pohlman, Allen, Black & Carlson, Butte, MT, for Third Party Defendant Patrick B. Kalahar.