The Rescue of Elizabeth Brown
According to the New Hampshire Union-Leader, a Massachusetts woman, 41-year-old Elizabeth Brown, was seriously injured on August 10, 2015, around 1:15 p.m., while climbing Mt. Moriah in White Mountain National Forest. She was near the summit when she ran into a tree limb, which lacerated her head and caused profuse bleeding that needed immediate medical treatment. Ms. Brown was fortunate that two fellow hikers found her shortly thereafter.
The kind strangers bandaged her head and called 9-1-1. However, they were more than four miles from the nearest road so Ms. Brown had to hike along with her newfound companions all the way down the mountain to Route 16, one of the major thoroughfares to and from the White Mountains.
It was slow going. They’d only made it about two miles when, at 5 p.m., they were met by a Fish and Game officer and two hikers from the Appalachian Mountain Club. The four continued to assist her until she was safely on her way to a hospital. Ms. Brown was an experienced, well supplied hiker, who was herself a member of the Appalachian Mountain Club. She and the others had the presence of mind and equipment necessary to tend to her injury.
Given her experience and preparedness, one may wonder how she got into the accident in the first place. What if it turns out that the accident was not Ms. Brown’s fault, but the fault of those who managed the park? (The White Mountain National Forest is one of hundreds of parks, including 16 in Massachusetts, that are managed by the National Park Service, a federal agency.) Could she sue?
Sovereign Immunity and the Federal Tort Claims Act
In times past, people were not allowed to sue their king. This doctrine was called “sovereign immunity” and even today the doctrine of sovereign immunity protects governments from most kinds of lawsuits. Before 1946, in the U.S., it took a special act of Congress to sue the government for injuries the government caused. Eventually, Congress grew weary of dealing with people’s personal injury claims and in 1946 passed the Federal Tort Claims Act (FTCA), 28 U.S. Code §1346(b), which created an exception to the sovereign immunity doctrine.
This act allows you to bring a claim against the government “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)
The Federal Tort Claims Act (FTCA) covers many different kinds of situations. For example, it allows you to sue for damages if you were involved in a traffic collision with a U.S. Postal Service truck; if you slipped and fell on U.S. government owned property, including the recreational areas of a national park; or even if a poorly constructed FEMA trailer collapsed onto you.
Recreational Use Statute
However, the government also has many potential defenses to liability. If you found yourself in Ms. Brown’s situation, and wanted to sue, the government’s most relevant defense would be the “Recreational Use Statute”. It says that if a landowner allows the public to use his or her land recreationally at no cost (or low cost), then that landowner isn’t liable for the personal injuries people sustain on the land. And, remember, the U.S. government isn’t liable either in circumstances where a private person wouldn’t have been liable.