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Janine C. Albertson, Individually; Bna, A Minor v. Fremont County

December 2, 2011

JANINE C. ALBERTSON, INDIVIDUALLY; BNA, A MINOR,
INDIVIDUALLY; AND THE ESTATE OF JAMES L. ALBERTSON, PLAINTIFFS,
v.
FREMONT COUNTY, IDAHO, A POLITICAL SUBDIVISION; UNITED STATES OF AMERICA, THE GOVERNMENT OF THE UNITED STATES OF AMERICA, MICHAEL T. BENSON, INDIVIDUALLY; AND DOES A THROUGH J, FICTITIOUSLY NAMED, DEFENDANTS.



The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

On February 1, 2009, James Albertson sustained fatal injuries while snowmobiling on a groomed trail within in the Caribou-Targhee National Forest located in Fremont County, Idaho. The accident occurred when Mr. Albertson drove onto the state highway at an intersection in the trail, and collided with a passing mini van. Plaintiffs -- Janine Albertson (the deceased's wife), BNA (the minor child of the deceased), and the Estate of James Albertson -- seek relief against Fremont County and the United States of America (the "United States") for wrongful death and negligence, alleging that the defendants failed to maintain the snowmobile trail in a reasonably safe condition and, in particular, failed to place or maintain traffic control signals and warning signs indicating hazardous or dangerous conditions.

Before the Court are Fremont County's Motion for Summary Judgment, (Dkt. 80), and the United States' Motion for Summary Judgment. (Dkt. 88.) Defendants argue, among other things, that they are immune from suit under Idaho's Recreational Use Statute, which provides immunity to those who make their land available to the public for recreational use without charge. Fremont County and the United States also have filed motions to strike or disregard several exhibits that Plaintiffs submitted in opposition to Defendants' motions for summary judgment. (Dkt. 102, 106.)

The parties presented oral argument on the motions on October 20, 2011. At the conclusion of the hearing, the Court ordered supplemental briefing on an issue raised by the United States in its reply brief in support of its motion for summary judgment. All of the issues now have been fully briefed and the motions are ripe for adjudication. Having fully reviewed the motions, the parties' memoranda and supplemental materials filed in support of each party's position, and for the reasons discussed below, both of Defendants' motions for summary judgment will be granted as to Plaintiffs' claims for negligence per se and denied as to Plaintiffs' claims for ordinary negligence. Defendants' motions to strike will be denied.

BACKGROUND

The Caribou-Targhee National Forest, managed by the United States Forest Service (the "Forest Service"), contains over 500 miles of groomed winter recreational snowmobile trails. Prior to February 1, 2009, the date Mr. Albertson sustained his fatal injuries, the Forest Service and Fremont County entered into various agreements concerning the operation and maintenance of a winter trail system within the forest.

Plaintiffs claim that these agreements created duties on the part of the Forest Service and Fremont County, and that Defendants breached their duties by failing to maintain the snowmobile trails in accordance with the agreements. During the 2008-2009 winter season, and at the time of the accident in this case, the Forest Service, Fremont County and the Idaho Department of Parks and Recreation were operating under a Cost-Share Agreement. (Dkt. 81 at 8.) The purpose of the Cost-Share Agreement was "to document the cooperation among the parties for the groomed snowmobile trails program within the boundaries of State Designated Snowmobile Areas #22a and 22b in Fremont County." (Id.) Pursuant to the Cost-Share Agreement, the Forest Service and Fremont County mutually agreed to develop and implement an Annual Operating Plan and a Sign Plan. (Id. at 11.)

The Cost-Share Agreement and the Annual Operating Plan assign various responsibilities related to the operation and maintenance of the trail system. For instance, the Annual Operating Plan provides that "The County Shall . . . [a]ssist the Forest Service with trail maintenance, as necessary, to keep the snowmobile trails open and safe[,]" and "[i]n cooperation with the Forest Service, [the County shall] mark trails, install sign[s] on trails and trailheads as necessary and as designated in the attached Sign Plan." (Dkt. 98-13) (capitalization omitted). The Sign Plan, referenced in both the Cost-Share Agreement and the Annual Operating Plan, lists the junctions along the trail system and sets forth the type of signs required to be installed at each junction. (Dkt. 98-12.) The Annual Operating Plan also requires the Sign Plan to be in compliance with the federal standards set forth in a document entitled EM-7100-15, Standards for Forest Service Signs and Posters. (Id.)

The parties, in their briefing, directed the Court to several other documents concerning the installation of, and standards governing, signs along the snowmobile trail. These documents relate to the alleged legal obligations of the Forest Service and Fremont County and will be addressed in more detail below in the Court's discussion of the parties' duties.

Pursuant to the Cost-Share Agreement, the costs of operating the groomed winter trail program are shared among the County, the State of Idaho, and the Forest Service. (Dkt. 81 at 8.) It is undisputed that non-resident and resident snowmobile owners are charged mandatory registration fees for use of snowmobiles within the State of Idaho. See Idaho Code §§ 67-7103 and 67-7104. The fees are collected by vendors and then remitted to the Idaho Department of Parks and Recreation. Idaho Code § 67-7106. Snowmobile owners can designate a county or snowmobile area to receive a portion of their registration fee.

Under the Cost-Share Agreement, the Idaho Department of Parks and Recreation is required to "disburse snowmobile registration funds to the County for use in the operation and maintenance of the grooming program." (Id.) Moreover, the Cost-Share Agreement provides for the institution of a County Snowmobile Advisory Committee, which includes representatives of the Forest Service, and advises "on the use and expenditures of funds for the grooming program." (Dkt. 81.)

Plaintiffs allege that the Forest Service "has in fact received a portion of the funds disbursed to Fremont County to purchase traffic counters, print trail maps, pay for law enforcement on the trails by the Forest Service and subsidize [the Forest Service's] law enforcement training." (Pl.s' Statement of Material Facts in Dispute with the United States, Dkt. 98-2 at 3.) It is undisputed that Mr. Albertson paid a registration fee of $32.50 on January 30, 2009, and designated an area within Fremont County as the use area to receive a portion of his fee distributed under the above program.

Idaho State Highway 20 is the main thoroughfare for vehicular traffic through Fremont County and, at various locations, crosses the groomed winter recreation snowmobile trails located in the Caribou-Targhee National Forest. One of those crossings is at Junction 57, where the Chick Creek trail crosses Highway 20 near Ponds Lodge, Idaho. The Sign Plan called for three signs on each side of Highway 20 -- a Stop sign, a Stop Ahead sign, and an Intersection Ahead sign.

On the morning of February 1, 2009, a group of twelve recreational snowmobilers, including James Albertson, were riding snowmobiles from West Yellowstone, Montana, to Ponds Lodge. As Mr. Albertson traveled westbound on Chick Creek Trail approaching Junction 57, he rode from the trail onto Highway 20 and collided with a passing van driven by Michael Benson. The injuries sustained during the collision resulted in Mr. Albertson's death.

Following Mr. Albertson's death, Plaintiffs filed an action against Fremont County, the City of Island Park, and Michael Benson.*fn1 (Dkt. 1.) The City of Island Park was dismissed from the case, and Plaintiffs later sought, and were granted, leave to add the United States as a defendant.*fn2 (Dkt. 45.) In their Second Amended Complaint, (Dkt. 43), Plaintiffs allege that the Forest Service and Fremont County failed to operate and maintain the snowmobile trail in a reasonably safe condition and that Mr. Albertson's death was the result of the Defendants' negligence. Specifically, Plaintiffs allege that, of the three signs required to be installed by the Sign Plan, only the Stop sign was present on the day of the accident and it was obscured by a pine tree and could not be seen by snowmobilers approaching the intersection. Plaintiffs further allege that two additional warning signs (a Stop Ahead sign and an Intersection Ahead sign) should have been installed in accordance with the Sign Plan, but that on the day of the accident neither was present. Finally, Plaintiffs contend that Defendants' failure to install and maintain the appropriate signs on the trail in accordance with the Sign Plan (and other standards governing the placement of signs on the trail) was exasperated by the fact that the trail was laid out and groomed with a sharp right-hand turn immediately prior to the Stop sign. Plaintiffs claim that the lay out of the trail created a dangerous condition, making it hard for snowmobile operators to appreciate the danger of the approaching highway and further obscuring the already obscured Stop sign at the intersection.

It is disputed whether some type of warning sign (other than the Stop sign at the intersection) was properly posted at the time of the accident. Plaintiffs claim that no warning sign was posted and the United States recognizes in its motion for summary judgment that, "[s]hortly after the accident, Fremont County discovered that the stop ahead sign that had been posed east of the highway crossing near Junction 57 was missing or knocked down." (Dkt. 88-1 at 4.) The United States' motion for summary judgment also states that "[n]o one knows who knocked the stop ahead sign down or when that sign was knocked down." (Id.) The parties have submitted a significant amount of deposition testimony and other evidence in support of their positions concerning whether the warning sign was (or was not) properly posted at the time of the accident. These facts, as they relate to the disposition of the motions presently before the Court, will be addressed below.

DISCUSSION

1. Defendants' Motions to Strike

In response to the motions for summary judgment filed by the United States and Fremont County, Plaintiffs filed numerous exhibits in support of their position that neither defendant is entitled to judgment as a matter of law. (Dkt. 98.) All of the exhibits are attached to the declaration of Plaintiffs' counsel, William L. Mauk. (Dkt. 98-3.) Fremont County and the United States both move the Court, through separate motions, for an order striking several of the exhibits attached to Mr. Mauk's declaration. (Dkt. 102, 106.) Defendants argue that much of the testimony and many of the exhibits submitted through Mr. Mauk's declaration are either inadmissible or submitted in an inadmissible form, and therefore should be stricken or disregarded by the Court when considering the motions for summary judgment.*fn3

Rule 56 of the Federal Rules of Civil Procedure requires that "affidavit[s] or declaration[s] used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Rule 56 also provides that "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). Given the language of Rule 56(c), the Court of Appeals for the Ninth Circuit repeatedly has held that unauthenticated documents cannot be considered in opposition to a motion for summary judgment. See, e.g., Cristobal v. Siegel, 26 F.3d 1488, 1494 (9th Cir. 1994).And, a statement in an attorney's affidavit that an exhibit is a "true and correct copy" has been held not to provide authentication where the attorney lacked personal knowledge to authenticate the document. Beyene v. Coleman Sec. Serv., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988).

Under Rule 56(e), if a party's materials in support or opposition to summary judgment fail to meet the requirements of Rule 56(c), the Court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it; or

(4) issue any other appropriate order.

Fed. R. Civ. P. 56(e).

On October 7, 2011, the Court ordered expedited briefing on Defendants' motions to strike so that the motions to strike and the motions for summary judgment could be argued by the parties, and considered by the Court, at the same time. (Dkt. 110.) In their response to Defendants' motions to strike, Plaintiffs filed supplemental materials, which largely cured the evidentiary deficiencies asserted by Defendants. Based on Plaintiffs' supplemental materials, the United States withdrew its objections to all but four of the exhibits attached to Mr. Mauk's declaration. Fremont County, on the other hand, has not withdrawn its objections and argues that, even if the deficiencies have been cured, the Court should nonetheless strike the exhibits because they were not properly filed in the first instance.

The Court heard oral arguments on Defendants' motions on October 20, 2011. During the hearing, the United States and Fremont County conceded that the alleged evidentiary defects related to the materials attached to Mr. Mauk's declaration largely had been cured. Having considered the parties' arguments and materials submitted on the motions, the Court finds that Plaintiffs' supplemental materials cured most of the evidentiary defects alleged by Fremont County and the United States in their motions to strike. To the extent that the alleged defects have been cured, the Court will not accept Fremont County's invitation to strike Plaintiffs' materials, which now meet the requirements of Rule 56(c), on the basis that they were not properly filed in the first instance. To the extent that Defendants maintain their objections to certain exhibits attached to Mr. Mauk's declaration (on grounds other than authentication or lack of foundation, which have been cured), the challenged materials will be addressed below.*fn4

A. Expert Report of Kim Raap

In opposition to Defendants' motions for summary judgment, Plaintiffs have submitted an expert report prepared by Kim Raap. The report is attached to Plaintiffs' counsel's declaration as Exhibit A and filed with the Court on a compact disc. (Dkt. 98-3 at 3.) Fremont County and the United States both filed motions to strike the report on the ground that it had not been properly authenticated. As indicated above, Plaintiffs have filed supplemental materials laying the foundation for the expert report. (See Dkt. 110-4.)

Fremont County continues to oppose the Court's consideration of the expert report in connection with its motion for summary judgment, arguing that the Court should not consider the report because Plaintiffs did not properly authenticate the document in the first instance. As noted above, Rule 56(e) authorizes the Court to allow a party to cure evidentiary deficiencies associated with materials filed in support or opposition to a motion for summary judgment. Because Plaintiffs already have cured the evidentiary deficiency associated with Mr. Raap's report, the Court finds that it would not be appropriate to disregard the exhibit in this case and Fremont County's opposition to the Court's consideration of the exhibit is overruled.

Aside from the report's alleged evidentiary deficiency, the United States objects to Mr. Raap's expert report on an additional ground. Specifically, the United States objects to statements contained in the report related to the layout and design of the snowmobile trail. Plaintiffs refer to Mr. Raap's report in their opposition to Defendants' motions for summary judgment and state that one of the issues in this case, as explained by Mr. Raap, involves a design defect in the trail system. Plaintiffs argue that this defect rendered the trail unsafe.

The United States argues that the "design" of the snowmobile trail was not raised in Plaintiffs' complaint and therefore should not be considered by the Court. The gist of the Unites States' argument is that Plaintiffs did not plead negligent design in their complaint, and that since the United States was not given notice of the "negligent design claim," Plaintiffs should not be allowed to raise the claim through Mr. Raap's expert report. Based on this argument, the United States "requests that the Court disregard, strike and/or deem waived any and all 'design allegations' from the record and preclude Mr. Raap from offering any opinions concerning the design, layout and/or alignment of any of the trails on the Forest, including Chick Creek Trail." (Dkt. 106 at 6.)

Like the United States, Fremont County argues that Plaintiffs may not raise this issue because it was not properly pled in Plaintiffs' complaint. Fremont County addresses the issue in its reply brief in support of its motion for summary judgment. (Dkt. 105.) The County asks the Court to rule as a matter of law that Plaintiffs may not raise a negligence claim based on the "design" of the trail.*fn5

For the reasons set forth below, the Court finds that the statements contained in Mr. Raap's expert report concerning the layout of the snowmobile trail do not exceed the scope of Plaintiffs' complaint. The United States' motion to strike portions of Mr. Raap's expert report, and Fremont County's request for a ruling that Plaintiffs may not raise the design issue, will therefore be denied.

Mr. Raap's report includes a section entitled "Conditions Present On February 1, 2009 Which Contributed To Mr. Albertson's Fatal Crash." (Expert Report of Kim Raap at 25-33, Dkt. 99.) In that section, Mr. Raap identifies three factors that he believes contributed to Mr. Albertson's death: (1) "Trail design, layout, and alignment"; (2) Trail signing, monitoring, and maintenance"; and (3) "Trail maintenance related to brushing and clearing." (Id. at 25-26.) Mr. Raap opines that the layout of the trail section at issue in this case created an unsafe condition and contributed to Mr. Albertson's accident. (Id. at 30.) Mr. Raap bases his conclusion on the fact that, due to the configuration of the trail, snowmobile riders were required to make an "abrupt turn in the trail before being confronted with the highway previously hidden from their view." (Id.) Mr. Raap also indicates that the turn in the trail made it difficult for riders approaching the highway to see the Stop sign at the intersection. (Id.) According to Mr. Raap, "immediately after negotiating the last bend in the approach route to the highway -- riders must immediately turn their snowmobile to the right to 'square-up' with the Stop sign and highway crossing." (Id.)

The Court finds that Mr. Raap's opinions concerning the layout of the snowmobile trail do not exceed the scope of the allegations contained in Plaintiffs' complaint. Plaintiffs generally contend that the intersection of Highway 20 and the Chick Creek Trail constituted a dangerous condition that Defendants knew or should have known could cause serious injury or death. Plaintiffs allege in their complaint that Defendants had the "duty to operate and maintain the snowmobile trails in a reasonably safe condition, so as to minimize, if not eliminate, all obvious or appreciated hazards or dangers presenting a risk of death or serious injury." (Pl.s' Sec. Am. Compl. ¶ 61(a), Dkt. 43 at 12.) Plaintiffs' complaint also alleges that Defendants had the duty "to regularly and systematically inspect the public snowmobile trails . . . for unsafe, defective or dangerous conditions, including missing, damaged or obstructed traffic control and warning signs and to remove or remedy such conditions, or to adequately warn the traveling public of such unsafe, defective and dangerous conditions." (Id. at ¶ 61(e).) Similarly, Plaintiffs' complaint alleges that "each of the governmental Defendants failed to develop, implement and take measures and precautions necessary, proper and prudent to protect Jimmy Albertson from the collision that caused his death." (Id. at ¶ 63.)

The Court recognizes, and Plaintiffs concede, that their complaint focuses on Defendants' alleged failure to install and maintain the signs on Chick Creek Trail. However, the allegations in Plaintiffs' complaint are not limited to the signage issue. Plaintiffs' complaint refers to "unsafe, defective or dangerous conditions" and Defendants' duty to "remove or remedy such conditions." The complaint also alleges that Defendants had the "duty to operate and maintain the snowmobile trails in a reasonably safe condition, so as to ...


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