## Facts

- Kathleen Merando, her daughter Kaylyn, and a friend drove on Route 615 along the New Jersey side of the Delaware Water Gap National Recreation Area.
- A large dead oak tree fell from a park embankment onto the vehicle, killing Kathleen and Kaylyn instantly.
- The tree was approximately 27 feet long and had been topped and de-limbed; it lacked bark and branches.
- Evidence indicated park personnel had topped the tree about ten years earlier during road work, causing it to die and lean toward the roadway.
- The plaintiff alleged National Park Service (NPS) employees negligently topped the tree without removing it and later failed to detect and remove it during hazard-tree inspections.
- The park encompassed roughly 63,000 acres with extensive roads and trails, requiring NPS to manage vegetation and hazards with limited personnel and resources.

## Issues

1. Whether NPS decisions about roadside hazard-tree inspection and removal involved judgment or choice rather than mandatory directives.
2. Whether those decisions were the type of conduct the FTCA discretionary function exception shields because they are susceptible to policy analysis.
3. Whether the discretionary function exception deprived the federal courts of subject-matter jurisdiction over the negligence claims.

## Decision

- The Third Circuit affirmed dismissal for lack of subject-matter jurisdiction.
- The court held that NPS hazard-tree management decisions, including inspection methods, inspection frequency, and removal decisions, involved judgment or choice.
- The court held these judgments were susceptible to policy analysis because they required balancing visitor safety, natural-resource objectives, and budget and staffing limits.
- Because both prongs of the Berkovitz/Gaubert test were satisfied, the discretionary function exception applied and barred the FTCA claims.

## Legal Principles

- Under the FTCA, the United States is not liable for claims based on discretionary functions or duties, even if the discretion is abused.
- The discretionary function exception applies when (1) no specific statute, regulation, or policy mandates a particular course of action, and (2) the challenged judgment is susceptible to policy analysis.
- Agency decisions on inspection and maintenance programs in resource-constrained settings can qualify as discretionary when they entail prioritization and allocation choices.
- Courts assess the nature of the conduct and the discretion conferred by governing directives, not merely whether the case can be framed as “operational negligence.”

## Conclusion

The court held that NPS roadside hazard-tree practices reflected discretionary, policy-laden choices about inspection and removal in a large park, so the FTCA discretionary function exception barred the wrongful-death and negligence claims and required dismissal for lack of jurisdiction.


Merando v. United States, 517 F.3d 160 (3d Cir. 2008)