Plaintiff alleges that Ben Johnson would not have died but for the Park Service's negligent failure to: (1) adequately regulate recreational climbing activity in Grand Teton National Park; (2) initiate a rescue effort after Macal's initial report; and (3) conduct a reasonable rescue effort after Macal's second report. In response to these allegations, the defendant filed a motion to dismiss, or, in the alternative, for summary judgment, asserting as a matter of law: (1) Plaintiff's action is jurisdictionally barred by the discretionary function exception to the FTCA, 28 U.S.C. 2680(a); and (2) the United States had no legal duty to rescue Ben Johnson. We review these issues de novo. Oberndorf v. City and County of Denver, 900 F.2d 1434, 1437 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). Because we conclude the discretionary function exception deprived the district court of jurisdiction, we do not address the propriety of the district court's summary judgment rulings regarding legal duty, breach of duty, or proximate cause.

Plaintiff (father of the deceased) sought to recover damages from the United States, alleging the National Park Service was negligent in undertaking the rescue of the decedent.

The district court concluded Plaintiff's claim could not stand because he failed to establish a legal duty imposed upon the National Park Service. In addition, the district court found Plaintiff failed to present evidence of a breach of duty or proximate cause sufficient to put those elements of negligence at issue.

The Federal Tort Claims Act (FTCA) authorizes civil suits against the United States for money damages ... for injury or loss of property, or personal injury ... 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). This broad waiver of sovereign immunity is limited, however, by the discretionary function exception, which prohibits any claim against the United States "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Id. § 2680(a) (emphasis added). The discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." 

This circuit applies the principles set forth in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), to guide its application of the discretionary function exception. Zumwalt, 928 F.2d at 953; Boyd v. United States ex rel. U.S. Army, Corps of Eng'rs, 881 F.2d 895, 897 (10th Cir. 1989). We first consider whether the challenged action "is a matter of choice for the acting employee." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. If a statute, regulation, or policy prescribes a specific course of conduct, then an employee must "adhere to the directive" and no discretion is involved. Id. If, however, the challenged action is discretionary, we must then determine whether it is of the kind Congress intended to shield through the exception. Id. The Court concluded that Congress intended to shield only those "governmental ... decisions based on considerations of public policy"--decisions " 'grounded in social, economic and political policy.' " Id. at 537, 108 S.Ct. at 1959 (quoting Varig, 467 U.S. at 814, 104 S.Ct. at 2765). Accordingly, the discretionary function exception will not bar a negligence claim if the government's "policy leaves no room for an official to exercise policy judgment in performing a given act, or if the act simply does not involve the exercise of such judgment." Id. at 546-47, 108 S.Ct. at 1964.

By statute, the Park Service is directed to promote and regulate the use of ... national parks ... by such means and measures as conform to the fundamental purpose of the said parks ... which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1 (1988) (emphasis added). Grand Teton National Park is to be administered in accordance with this general mandate. Id. § 406d-1. According to the affidavit of Jack Stark, Superintendent, Grand Teton National Park, no federal statutes or regulations apply to the National Park Service or to Grand Teton National Park which specify how mountain climbing should be regulated. The Park Service has never promulgated a formal mountain climbing policy or climbing regulations. The Park does, however, require climbers to obtain a permit before departing on a climb. The purpose of the permit system is to educate climbers via face-to-face ranger contact. When a permit is requested, rangers attempt to evaluate the climbers' capabilities, and suggest alternative climbs if appropriate. Rangers have no authority, however, to prohibit climbers from taking a particular route.

Within this broad statutory/regulatory framework, we first examine Plaintiff's assertion that Park Service decisions regarding climbing regulation are not insulated from liability. Plaintiff concedes these decisions involve an exercise of judgment or choice, and thereby satisfy the first Berkovitz prong. No statute, regulation, or policy specifically prescribes a course of action for the National Park Service to follow. Decisions as to the extent or nature of mountain climbing regulation are truly the product of the Park Service's independent judgment--they are discretionary. See Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958.

We now turn to the issue of whether Park Service decisions if, when and how to conduct rescue operations are shielded by the discretionary function exception. Fundamentally, Plaintiff alleges that the National Park Service was negligent in its response to Ben Johnson's plight. However, the dispositive threshold issue is not whether the Park Service was negligent, but rather what was the nature of the Park Service's decisions. In response to this issue, Plaintiff baldly asserts that "[t]he rangers [sic] negligent actions in responding to Macal and Wechner 'simply did not involve the exercise of [social, economic, and political] judgment,' " and, therefore, do not invoke the discretionary function exception. A closer analysis is in order.

Again, we must first determine whether the challenged action "is a matter of choice for the acting employee." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. In addition to the general statutory directive quoted above, the Secretary of the Interior is authorized, not mandated, to assist National Park visitors in emergencies. 16 U.S.C. § 12 (1988). No statute imposes a duty to rescue, nor are there regulations or formal Park Service policies which prescribe a specific course of conduct for search or rescue efforts. Instead, the decision if, when or how to initiate a search or rescue is left to the discretion of the SAR team. Therefore, the rangers must act without reliance upon fixed or readily ascertainable standards when making a search or rescue decision in the field. Plaintiff wisely concedes that these decisions are discretionary and therefore satisfy the first prong of Berkovitz.

Governmental actions outside the regulatory context may be protected by the discretionary function exception. Allen, 816 F.2d at 1422 (citing Varig, 467 U.S. at 810-14, 104 S.Ct. at 2762-65, and Dalehite, 346 U.S. at 31, 73 S.Ct. at 965). Furthermore, "the nature of the conduct, rather than the status of the actor ... governs whether the discretionary function exception applies in a given case." Varig, 467 U.S. at 813, 104 S.Ct. at 2764. The fact that the rangers, as employees, make nonregulatory search and rescue decisions is therefore inconsequential to our determination of whether those decisions are policy judgments. The nature of the rescue decision process is the critical inquiry: Do Park Service search and rescue decisions simply involve weighing safety considerations under an established program or do they involve the balancing of competing policy considerations?

Park Service search and rescue decisions are not guided by formal standards. Yet, these decisions are not arbitrary. The record demonstrates that Park rangers make individual search and rescue decisions based on the following considerations:

(1) Safety--It is a primary objective of the Park Service to protect the safety of both the visitors and the rangers. For this reason the rangers consider a variety of factors, including but not limited to, the nature of the situation reported (e.g., lost, overdue, off route, injured), 8 the weather, the nature and difficulty of the terrain, the number of climbers, and the presence or absence of a leader at the scene.

(2) Human resources--The Park Service has limited manpower resources which it must allocate and deploy carefully. In June 1987, Grand Teton National Park had 17,197 visitors per day. Hikers and climbers accounted for 1,009 of these daily visitors. During this same period, forty seasonal and twelve permanent rangers (including the eighteen search and rescue rangers in the Jenny Lake Subdistrict) patrolled 332,331 acres--over 519 square miles of extremely rugged terrain.

(3) Economic resources--The Park Service has limited economic resources which it must use wisely. Search and rescue efforts are expensive. For example, a helicopter search costs $750 per hour.

(4) Governmental interference--The climbing community appreciates the inherent danger of the sport and is perceived to value the individual freedom of a backcountry experience.

We need not find evidence in the record that the rangers in this instance considered each of the identified policy factors. The discretionary function exception may apply in the absence of a conscious decision, so long as the Park Service's search and rescue program allowed room for the rangers to make independent policy judgments. See Berkovitz, 486 U.S. at 546, 108 S.Ct. at 1964; Richardson v. United States, 943 F.2d 1107, 1111 (9th Cir.1991); Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 892 (3d. Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991). The record before us adequately supports our conclusion that the rangers' decision if, when or how to rescue inherently involves the balancing of safety objectives 9 against such practical considerations as staffing, funding and minimizing government intrusion. As such, these decisions are grounded in social and economic policy, and thus are shielded from liability under the FTCA discretionary function exception.

The material facts of this case are undisputed. On June 28, 1987, decedent, Ben Johnson, and three companions, Robin Macal, Daniel Feikin and David Wechner, hiked to the summit of Buck Mountain in Grand Teton National Park. Macal and Wechner had acquired the necessary climbing permit from the Jenny Lake Ranger Station the previous afternoon. The four climbers had varying degrees of experience. Wechner was the designated leader of the party. Johnson was the least experienced, with no technical climbing experience whatsoever. Johnson and his companions began their ascent at approximately 8:00 a.m. via Buck Mountain's east ridge, a nontechnical route. The four climbers reached the summit at different times between 9:00 and 10:30 a.m.

After gathering at the summit, the group descended in pairs, at different times, via the east face, a nontechnical route regarded as relatively easy. The two most experienced climbers, Macal and Wechner, descended first. They reached Timberline Lake at approximately 12:00 noon, the entire descent taking approximately fifteen minutes. Although Johnson and Feikin began their descent along the east face shortly thereafter, they soon strayed south, entering more difficult and technical terrain. Unable to find their way back to the easier route, Johnson and Feikin attempted to descend the southern route. At some point, however, Feikin resolved he could go no further and remained on a ledge where he was in visual contact with Macal and Wechner waiting at Timberline Lake. Johnson, on the other hand, decided to continue his descent. After leaving the summit, Johnson was in occasional voice contact, but never in visual contact with Macal and Wechner.
At approximately 2:30 p.m. Macal and Wechner decided to summon help from the Park Rangers. Macal ran from Timberline Lake to the trailhead where he retrieved his vehicle and drove to the Moose Visitor's Center. Arriving at the visitor's center at approximately 4:30 p.m., he approached Ranger James Springer and informed him that Johnson and Feikin were off course and stuck, but that he believed there was a ranger in the area. At this point Macal was unaware, and therefore unable to report, that at approximately 3:15 p.m. Johnson had fallen on a hard snowslope, crashed into rocks and sustained a serious head injury and lacerations. Upon receiving Macal's information, Springer made radio contact with Ranger Randy Harrington, who had been in the vicinity of Buck Mountain, to determine whether he knew of any climbers in distress. Ranger Harrington reported that he had encountered four climbers descending Buck Mountain and that they were walking through Death Canyon. After talking with Harrington, Ranger Springer told Macal he should return to Whitegrass Trailhead to wait for his companions.

Macal returned to the trailhead and remained in the area until approximately 8:45 p.m. when Wechner arrived from Timberline Lake. After Wechner reported he had not seen Johnson and that Feikin was still stranded on the ledge, Macal realized the communication between Rangers Springer and Harrington had been erroneous. 2 Wechner and Macal then drove to the Moose Visitor's Center where they told Ranger Northrup about the previous miscommunication. They informed him Feikin had been on the same ledge for over four hours and Johnson had not been seen since earlier in the day. Both Wechner and Macal were still unaware that Johnson was injured. Northrup contacted Ranger Peter Armington, the Jenny Lake District search and rescue (SAR) coordinator.
Ranger Armington consulted with his SAR team 3 concerning a possible rescue effort. At approximately 9:30 p.m., Armington decided to send climbing rangers Harrington and Larsen to Buck Mountain to retrieve Feikin from the ledge and to look for Johnson. The rangers reached Feikin in the early morning hours, but were unable to locate Johnson. A helicopter search was initiated at first light, 6:15 a.m. Johnson's body was located approximately twenty minutes later in a melt pool near Timberline Lake. Johnson had died from hypothermia at approximately 10:30 p.m. the previous night.

Ranger Armington consulted with his SAR team 3 concerning a possible rescue effort. At approximately 9:30 p.m., Armington decided to send climbing rangers Harrington and Larsen to Buck Mountain to retrieve Feikin from the ledge and to look for Johnson. The rangers reached Feikin in the early morning hours, but were unable to locate Johnson. A helicopter search was initiated at first light, 6:15 a.m. Johnson's body was located approximately twenty minutes later in a melt pool near Timberline Lake. Johnson had died from hypothermia at approximately 10:30 p.m. the previous night.

The plaintiff, the father of the deceased, argued the National Park Service should have started its search for his son much sooner than they did. This argument was translated into the legal claims of "(1) adequately regulate recreational climbing activity in Grand Teton National Park; (2) initiate a rescue effort after Macal's initial report; and (3) conduct a reasonable rescue effort after Macal's second report." The adequate regulation claim was that the father argued the park service should be more involved and stay current with all persons climbing in the park. The other two claims were based on when the park service responded to the friend of the deceased request for help. The father argued they did not respond fast enough, and if they had responded in a timely manner, his son would still be alive.

The Park Service response was that their actions were discretionary and thus not subject to review. All federal agencies are controlled by laws enacted to provide direction and control of their actions and service to the public. Those areas where the park service or any other federal agency do not have direct directions or that are based on each individual circumstance at the time are called diescretionary actions. This is called the discretionary function exception to the general law directing the Park Service and controlling the lawsuits that may be directed at the park service, the FTCA (the Federal Tort Claims Act).

The Federal Tort Claims Act defines how the US government can be sued and by whom. The Federal Tort Claims Act is narrow in its scope and lists specific requirements for suing the US government. To allow agencies of the government to act without fear of being sued, the courts have created the discretionary function exception. This is defined as which "prohibits any claim against the United States "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Meaning, if the actions of the government are found to be discretionary, not in violation of any other law, regulation, or rule, then the agency cannot be sued.

After careful examination of the record, we find nothing to contradict the government's evidence that Park Service search and rescue decisions are discretionary decisions requiring rangers to balance competing policy considerations. 11 In opposing the government's summary judgment motion, Plaintiff had the burden of presenting evidence that would put in issue the discretionary nature of these decisions. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Plaintiff has failed to meet this burden.

We recognize that, in the plaintiff's view, this is a harsh end. However, Plaintiff's entire case rests on the assertion that Park Service personnel could have communicated more accurately and responded more quickly. While this assertion may be true (i.e., the rangers' interview and response may have deviated from standards against which liability is measured where liability is available), it is not sufficient to establish FTCA liability. Allen, 816 F.2d at 1424. Factual issues concerning negligence are irrelevant to the threshold issue of whether the officials' actions are shielded from liability by the discretionary function exception. Id. at 1421. The Park Service's conduct involved the permissible exercise of policy judgment; therefore, governmental immunity is preserved under 28 U.S.C. § 2680(a) "whether or not the discretion involved be abused."

In summary, we conclude the district court properly granted summary judgment. The record reveals no disputed material facts as to the discretionary nature of the Park Service's actions. Plaintiff has confused negligence with immunity--to adopt the argument would be to jeopardize the Park rangers' autonomy to make difficult, individualized search and rescue decisions in the field. We seriously doubt Congress intended to expose these decisions to the second guessing of courts far removed from the exigencies of the moment. Plaintiff's negligence claims are therefore barred by the discretionary function exception to the FTCA. The district court's grant of summary judgment in favor of the United States is AFFIRMED.

Here whether or not the park service controls climbing in the park and to what degree was found to be discretionary. How much money the park had, how many employees it had who had the experience and training to perform mountaineering rescues, and when to start a rescue were all within the bounds of the park service and not subject to a lawsuit in how or when they made those decisions.

Under the laws of the US, there is no legal duty to rescue someone unless you place the person needing rescue in peril or you have accepted a legal responsibility to rescue a person. An example of the second is that a guide has a legal duty to rescue a client because the relationship between the guide and the client implies that. The guide was hired by the client to guide, keep the client out of danger, and if necessary, rescue the client.

Other than that, there is no legal duty to rescue. The example taught in law schools in the US is a pedestrian walking past a hole in the sidewalk who sees someone in need of a rescue from the hole has no legal obligation to rescue, even call for help, and can continue their walk with any legal obligation, even to call for a rescue.

In most common law countries—such as the United States, United Kingdom, Canada, New Zealand, and South Africa—there is generally no legal duty to rescue someone in distress. That means a person is not legally required to help or even call for help, unless they have created the danger or have a special legal relationship with the person in need (e.g., a guide and a client).

By contrast, in many countries with civil law systems—where the law is codified—there is a legal obligation to assist others in danger, provided doing so does not put the rescuer at significant risk. For example, countries like Iran, the Czech Republic, and North Macedonia require individuals to help others in need unless it endangers their own safety. Failure to act in such countries may lead to civil or criminal penalties.

This case highlights the significant legal differences in how various countries handle emergencies in outdoor activities like mountaineering, hiking, or climbing. Before engaging in such activities abroad, it is wise to understand not only your own legal duties, but also the responsibilities of your companions and local authorities under that country’s legal system.