Peter Terbush

After more than five years of litigation, the 9th U.S. Circuit Court of Appeals has given the parents of a climber killed by falling rock in Yosemite National Park another shot at proving that park officials are responsible for his death.

Peter Terbush, 21, died in June 1999 while climbing at Yosemite's Glacier Point Apron. His parents alleged that the negligent design, construction and maintenance of a bathroom water system on top of Glacier Point caused the fatal rockslide.

The “discretionary function exception” to the Federal Tort Claims Act bars claims against federal officials when their challenged actions involve an “element of judgment or choice” and are based on “considerations of public policy.” Applying that exception, a trial judge threw out the Terbushes' entire case in July 2005.

But the 9th Circuit said it was unclear whether the National Park Service (NPS) had met its burden on the negligent maintenance claim and sent that part of the case back to the trial court for further proceedings.

“The difficulty here is that we cannot determine on the record before us whether the challenged maintenance at issue is maintenance that falls beyond policy judgments or whether it tends to the other end of the spectrum, which implicates broader mandates of NPS’s policy regime,” the decision said, and

It is not sufficient for the government merely to waive the flag of policy as a cover for anything and everything it does that is discretionary in nature.

The Terbushes filed suit in November 2002 after learning of a geologist's theory that leaks from the Glacier Point bathroom water system artificially lubricated the cliff face, unleashing a series of rock slides in the months before their son's death. Peter Terbush was anchoring a climbing partner's belay rope when a rock fragment struck him in the head.

The Park Service equated its maintenance decisions to those of officials who must consider competing fire-fighter safety and public safety considerations in deciding how to fight a forest fire or of prison guards who must balance prisoner safety and their own safety in searching inmates’ cells in response to a reported threat.

But Judge M. Margaret McKeown, writing for the 9th Circuit, said it was “a long leap from routine maintenance of a wastewater system to fighting forest fires and guarding prisoners. [Those] decisions and actions ... appear to involve far more than mere maintenance (indeed, what unites them are safety considerations).”

“[W]e decline to adopt a rule that would eviscerate the original purpose of the [tort claims] statute by an overly generous reading of the policy-based prong of the exception,” she concluded.

The government may now have a tough time showing that the maintenance of the wastewater system was “grounded in the NPS's policy regime.” But it would still only be liable if the negligent maintenance caused instability in the Glacier Point cliff face.