Appeals panel rejects suit over abandoned mine shaft death

DENVER -- A federal appeals panel has upheld the dismissal of a wrongful death lawsuit filed by the family of a woman who died when the car she was riding in drove off a Forest Service road and into an abandoned mine shaft in the Rocky Mountain foothills of Colorado.

Sarah Ball, 18, was a passenger in the vehicle that drove off the unpaved road in the Arapaho and Roosevelt National Forests in Boulder County shortly before 3 a.m. June 12, 2016. The vehicle ran over an earthen mound before plunging into the mine shaft about 20 feet (6 meters) off the road.

Ball and another passenger, 19-year-old Peter Kim, were killed. The driver, Isaac Lutz, 32, was later sentenced to three years' probation after pleading guilty to reckless endangerment and reckless driving.

Ball's parents, Logan and Elizabeth Ball, filed a wrongful death suit, saying the U.S. government was negligent in not posting a warning sign or erecting a barrier at a fork in the road where the accident occurred. Tree branches partially blocked the left fork, the original road route; the right path led to the mine shaft, their lawsuit contended.

A U.S. District Court dismissed their lawsuit, finding the government was immune from liability under a provision of the Federal Tort Claims Act, which allows lawsuits alleging wrongful injury or death because of negligence. The Balls appealed.

A three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver upheld the dismissal Friday, finding in part that to rule against the Forest Service would be to second-guess Forest Service policy when it comes to warning the public about the risks of using so-called Level 2 roads, suitable for high-clearance vehicles and other backcountry activity.

That policy includes publishing a motorist's guide to Forest Service roads stressing the risks of using them, the panel ruled. It also includes efforts to mitigate the risks of abandoned mines, damaged roads and other hazards if funding permits — and that is not the case with the Forest Service, the panel said.

It noted that there are more than 1,300 remnants of abandoned mines in the Arapaho and Roosevelt forests, including shafts, entrances and tailings, as well as thousands of miles (kilometers) of roads.

“If the government is liable for not posting the warning or putting up the barrier suggested by plaintiffs at the site of the tragic accident in the case, it could protect itself from future liability only by regularly examining all 1,329 mine features and all 1,987 miles of Level 2 roads in the forest for possible hazards and then, at the very least, posting warning signs to alert motorists,” the appeals panel wrote.

“And posting the number of warning signs that would evidently be required could not help but detract from the scenic beauty of the forest, making it a far less attractive place to ‘get away from it all,’ ” it said.

Plaintiffs' attorney Randall Weiner said Tuesday he and his clients are considering whether to take their case before the full 10th Circuit.

"We believe the government should be held accountable to same extent as a private person on lands they control, especially when a warning of a specific hazard would cost a few dollars and could save lives," Weiner said.

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