In a recent case concerning the U.S. Court of Appeals for the Eighth Circuit, the dismissal of a slip-and-fall lawsuit against the government was affirmed, eschewing the discretionary-function exception. This decision was sparked by an incident involving a woman who had tumbled on a walkway at a national monument undergoing renovations.
The woman in question, Autumn Hilger, had slipped and fallen at the Mount Rushmore National Memorial, subsequently pursuing a negligence lawsuit against the government. However, Hilger’s claims were dismissed by the U.S. District Court for the District of South Dakota’s Western Division, due to a lack of subject matter jurisdiction. The court reached this verdict by invoking the discretionary-function exception to the Federal Tort Claims Act (FTCA).
According to Judge Bobby Ed Shepherd, who spoke on behalf of the Eighth Circuit panel, the discretionary-function exception’s applicability hinges on whether the challenged conduct is ‘susceptible to policy analysis’. Shepherd highlighted that the use of policy analysis by the decision-maker isn’t the determining factor, but rather the question lay in the conduct’s potential for analysis. Judge Shepherd also noted that safety concerns are commonly recognized as a policy consideration when dealing with the discretionary-function exception.