In this case, plaintiff Steven Judd was injured while diving in the Black Canyon Falls area of the Cleveland National Forest. This national forest is maintained and supervised by the National Forest Service. It consists of one-half million acres of, mostly undeveloped, forest and 1,500 miles of streams in San Diego, Orange, and Riverside counties in California. Black Canyon Falls included a natural pond (37 feet by 30 feet) formed by run-off water from the mountains. At the time of the incident, there were no signs pointing to the falls, nor was it listed in any Forest Service literature. This site is located one-quarter mile from a developed campground. To reach the falls from the campground one could either hike up a stream over rocks and boulders or park on a road adjacent to the falls and traverse a steep, dangerous incline. The facts of the case were as follows:

On April 24, 1981, Judd and his friend parked his friend's car in a public parking area of the Black Canyon campground. There is no charge to park in public parking areas; one is only charged if one wishes to use a camping site. Judd and his friend hiked to the falls via the one-quarter mile "boulder and rock" route. When they arrived, they sunned on the rocks and swam and dove off the rocks into the pond for approximately two hours. There were other persons sunning and swimming at the falls; there were a few other divers...

Judd tested the Black Canyon Falls pool for depth and found a pocket approximately 13 1/2 feet deep. [The water around this two foot in diameter pocket varied from 7 1/2 to 10 feet in depth.] He and a friend dove from rocks about 10 to 15 feet in height into the deeper area of the pond. Judd decided to try a dive from approximately 35 feet above the water. To reach the pond from this point, Judd had to dive over a shelf which protruded 12 feet some 25 feet below him. Due to the fact this 35 foot high rock was farther to the west than the rocks he previously dove from, the deepest part of the pool was approximately 35 feet away, on a horizontal plane, from the spot he chose as a diving platform. Judd climbed up to the rock and sat for approximately 15 minutes looking into the pool. Judd then attempted a swan dive; his head hit something, presumably the bottom. Due to the injury to his head, Judd is now a quadriplegic.

Judd was a competitive diver in high school. He was familiar with shallow water diving from a one meter diving board. He had some experience in recreational, not competitive, high diving.

The Forest Service was aware of sun bathing and swimming activity at Black Canyon Falls, including diving from the lower rocks. However, the Forest Service was not aware of any diving from the 35 foot rock formation where Judd attempted his dive. In addition, there was no evidence of prior diving or jumping injuries at Black Canyon Falls.

Judd alleged that the Forest Service was negligent in failing "to sound out swimming areas and post warning signs" of hazardous diving conditions in the Black Canyon Falls area. The Forest Service responded that its "decision not to take precautionary measures by posting warning signs at Black Canyon Falls" was an exercise of discretion by the forest supervisor and district ranger based upon social, economic, and political policy. Consequently, the Forest Service argued that the failure to warn or take precautions was a discretionary function, immune from negligence liability under the terms of the Federal Tort Claims Act (FTCA).

The issue before the federal district court was, therefore, whether the discretionary function exception to the FTCA barred Judd's recovery under the circumstances of this case. The court provided the following description of discretionary function immunity under the FTCA.

A party may bring a cause of action against the federal government only to the extent that the government has waived its sovereign immunity. The burden of demonstrating an unequivocal waiver of immunity rests on the party bringing suit against the federal government. The "discretionary function exception" to the government's waiver of immunity under the Federal Tort Claims Act is set forth in 28 U.S.C. § 2680(a) precludes the exercise of jurisdiction over any claims "based on 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.

In determining whether the exception applies, a court must look to "the nature of the conduct, rather than the status of the actor" because the exception covers not only agencies, but all employees exercising discretion. The section is to be applied when its purpose would be served; this is to prevent judicial "second-guessing" of administrative decisions based on political, economic, and social policy through private tort actions.

Based upon testimony presented at trial, the federal district court found that "the decision not to post warning signs at Black Canyon Falls was discretionary."

Forest Service policy, as embodied in the Forest Service Manual, requires that signs warning of potentially dangerous conditions be posted only in "developed" areas of National Forest lands. Where an area is not "developed," the Forest Service vests local Forest Service administrators with discretion to post warnings of danger... Thus, in the instant case, a determination of whether the decision not to post a warning sign is discretionary depends on whether the area in question is "developed" or "undeveloped" according to the Forest Service.

As defined in the Forest Service Manual, a developed recreation site consisted of modifications to enhance recreational opportunities such as campgrounds. In determining whether a site was "developed" the Forest Service Manual would apply the following criteria:

(1) A developed site has been modified to accommodate one or more specific recreation opportunities for intensive rather than dispersed uses... (2) At developed sites the modifications are to enhance recreation opportunities, and not merely those needed for resource protection or to satisfy administrative needs. (3) Developed sites are documented by approved site plans. (4) For developed sites it is desirable to publish locative and other site information in directories and on maps to help people find the sites and to encourage continued or additional use. The development site consists of the actual developed area and also the peripheral area surrounding the developed area.

Applying these criteria to the circumstances of this case, the federal district court found that Black Canyon Falls was an undeveloped area.

Because there have been no modifications to the falls area itself, the only means by which Black Canyon Falls could be considered a developed site is if the court were to find it peripheral to the developed area. This court cannot do so. The undisputed testimony is that the Forest Service considered the peripheral area to be the forest land immediately adjacent to a developed area, such as forest land surrounding a parking spur in a campground. No forest service regulations nor habit and custom of the Forest Service support a definition of peripheral to embrace a natural pool one-quarter mile away reached by hiking over boulders and rocks or sliding down a slippery incline. Further, this swimming area is not listed on any Forest Service literature; there are no trail signs pointing the way; there is no clear trail to the Falls; there are no facilities at the Falls. The only maintenance the Forest Service provides is to remove unnatural items from the Falls, such as broken glass or climbing ropes; this is done as part of the general Forest Service policy of keeping unnatural items out of undeveloped forests and wilderness areas and occurs on the infrequent occasions a Forest Service employee is in the falls area.

Discretionary function immunity under the FTCA would not be applicable if the Forest Service negligently failed to comply with a previously adopted safety policy. However, the federal district court found that there was "no evidence in the instant case to support a contention that the absence of a warning sign at Black Canyon Falls was a failure to comply with previously adopted safety policy."

Under Forest Service regulations, the decision to post signs in undeveloped areas is left to the discretion of the Forest Service Supervisor for the Cleveland National Forest, and the District Ranger for the Palomar Ranger District. These two supervisors have elected to post signs warning of hazards in an undeveloped area only if the natural risks are not readily apparent to visitors, such as avalanche areas, or polluted stream water. There are two reasons for the policy: preservation of the natural beauty of the forest and financial concerns. A sign costs a few hundred dollars to make and install, and maintenance costs are high due to frequent theft of Forest Service signs.

According to Forest Service regulations, it was within the discretion of forest supervisors to determine the need for improved management in areas where swimming use is very limited. Under the circumstances of this case, the federal district court found that Judd had failed to show that Black Canyon Falls was anything more than an area of limited use for swimming. Consequently, the court found that the Forest Service did not have a duty to manage the area. As a result, the court concluded that "the discretionary function exception to the Federal Tort Claims Act applies to the decision not to post signs at Black Canyon Falls."

The federal district court also considered whether state law imposed a duty on the Forest Service to post warning signs at Black Canyon Falls. Under the FTCA, the federal government is liable for negligence like a private individual under the law of the jurisdiction where the injury occurred. California law imposed a duty on persons maintaining a "resort" to provide signs indicating the location and depth of pools or other water areas during the season when bathing and swimming are permitted or invited. Judd contended that the swimming activity at Black Canyon Falls made the area a resort within the meaning of the statute, imposing a duty to post warning signs.

This state statute defined a "resort" as "any public bathing or swimming place or resort on a river or stream." In the opinion of the federal district court, the state legislature, in using the phrase "public bathing or swimming place," intended that the statute include 'only establishments whose purpose is, at least in part, to offer to the public access to swimming or bathing." Under the circumstances of this case, the court found "the Forest Service has done nothing to encourage the use of the Falls or to provide access to the area for swimming or bathing." As a result, the court concluded that Black Canyon Falls was not a "resort" within the meaning of the state statute. Consequently, there was no duty under state law to post warning signs.

The Forest Service had argued that it owed no duty to Judd under the terms of the state recreational use statute. As described by the federal district court, this state statute (Cal. Civil Code § 846) provided "a landowner has no liability for failure to keep premises safe for entry or use by others for any recreational purposes or to give any warning of hazardous conditions." However, immunity under this statute would not be available where (1) the landowner was guilty of willful or wanton, malicious misconduct; (2) a consideration (i.e. a fee or some other economic benefit) was paid for the use of the premises; or (3) the user was expressly invited by the landowner to come upon the premises.

Judd argued that the statute was inapplicable because the Forest Service was guilty of willful or malicious misconduct under the circumstances of this case. As defined by the federal district, "willful or wanton misconduct is intentional wrongful conduct, done with either a knowledge that serious injury to another will probably result or with a wanton and reckless disregard of the probable results." Applying these criteria to the facts of the case, the court concluded "there is no evidence the failure to post warning signs was willful or malicious."

In this case, there is no evidence that Forest Service personnel actually knew that persons dove from the spot Judd attempted his dive. Indeed, the evidence is that the Forest Service knew persons sunned, swam, and bathed in the area,and jumped and dove off the lower rocks; there is no evidence anyone at the Forest Service was aware persons actually dove or jumped from high rocks into this small pool. Further, the geography of the area itself would not lead a reasonable person to believe such a dive would be attempted. A dive from 35 feet high off a boulder into a small pool whose depth is approximately 13 1/2 feet at its deepest spot, and whose bottom is visibly rocky and uneven is not the type of danger about which a court would impose constructive knowledge [should have known under the circumstances] on a landowner. The risk is too obvious to a potential diver.

Judd also argued that the consideration exception to immunity under the state recreational use statute should apply in this case "because persons who used a designated camping site at Black Canyon Campground paid a fee." The federal district court rejected this argument.

[T]he evidence is undisputed that Judd and his companion paid no consideration for their day at Cleveland National Forest: national forests do not charge entrance fees... Judd is not claiming damages for a breach of duty which occurred within the developed campground site but rather a claimed breach of duty which occurred at an undeveloped site one-quarter of a mile away. Again, no Forest Service literature lists Black Canyon Falls as a swimming area, and there are no signs pointing to it or any clear trail to hike to get to it from the campground.

The federal district court, therefore, concluded that, pursuant to the state recreational use statute, the Forest Service had "no liability for failure to keep Black Canyon Falls safe for recreational use or for failure to warn of dangerous conditions."

Finally, the federal district court considered the issue of causation. Even if the Forest Service was negligent, this negligence must have caused Judd's injuries for him to recover damages.

Under California law, defendant's negligence act must be the legal cause of the plaintiff's injury in order for the defendant to be held liable. The first element of legal cause is cause in fact: it is necessary to show that "but for" the defendant's negligence the injury would not have been sustained. Once defendant's negligence has been established, the doctrine of proximate [i.e. legal] cause may operate to limit liability. Proximate cause itself is thus not a question of causation: it is simply a policy determination of whether or not the defendant should be held responsible. (Citations omitted.)

Under the circumstances of this case, the federal district court found the failure to post warning signs had not "caused" Judd "to attempt his ill-fated swan dive, despite his testimony that he would not have dived if there had been a warning sign."

The hazards of this dive were readily apparent to a reasonable person. The target deep spot was small, the diving rock was 35 feet high and sloping; there was an overhanging rock 20 feet below Judd which extended 12 feet and over which Judd had to dive. The bottom of the pool was visibly shallow in spots and rocky in spots... [O]nly intoxicated persons and extreme risk takers would attempt this dive. And, for these groups, a sign would be unlikely to deter any but those who wanted an excuse to not attempt the dive. [There was no evidence that Judd was intoxicated.] There is no evidence Judd wanted an excuse not to attempt the dive. He was an experienced diver who knew from his [competitive diving] experience 9 feet was not enough depth to handle a one-meter dive without evasive tactics. The attempted swan dive was approximately 10 times higher than one meter, and Judd knew that in spots the water was much shallower than 9 feet. The natural risks were readily apparent. It is inconceivable a sign could have conveyed more to Judd about the risks of diving than standing 35 feet in height above Black Canyon Falls conveyed to Judd.

Having found no basis for liability under the circumstances of this case, the federal district court entered judgment for the defendant United States.