Hantavirus Claims Against USA Can Proceed

SAN FRANCISCO (CN) - The federal government may be liable for some, but not all claims from a hantavirus outbreak that infected 10 people at a Yosemite National Park campsite and killed three, a federal judge ruled.

Families claim in a consolidated complaint that they were infected by the lethal Hantavirus outbreak that hit Yosemite National Park during the summer of 2012. They say the 10 confirmed cases and at least three deaths could have been prevented had the park taken steps to control deer mice that nest in the walls of "signature tent cabins" in Curry Village.

According to the 2014 consolidated complaint, the families were "unknowingly exposed to Hantavirus" from mice that hid in "the interior wall [of the tent cabins]," which "created a rodent harborage allowing feces, urine and saliva to accumulate undetected."

Hantavirus pulmonary syndrome is a lung disease that can be fatal in humans. Hantavirus is carried by deer mice; people can contract the disease by direct contact with their urine, droppings and saliva, by breathing in tiny airborne particles of dust or by being bitten, according to the U.S. Centers for Disease and Control.

The families sued the United States; Delaware North Companies (DNC), which ran the hotel, restaurant and visitor services in Yosemite; and Yosemite Construction, which built the signature tent cabins, alleging wrongful death, negligence, liability and failure to warn, under the Federal Tort Claims Act.

Delaware North filed a cross-claim against the United States, saying that if it is held at fault for the plaintiffs' injuries, "the U.S. bears all or part of that fault."

The defendants filed a motion to dismiss based on subject matter jurisdiction, on Oct. 31, 2014.

The court considered whether the Federal Tort Claims Act's waiver of sovereign immunity applied as exceptions to some claims.

U.S. District Judge Maxine Chesney found that under the act's discretionary function exception, "the provisions of the FTCA do not apply to claims 'based upon the exercise or performance of 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 considering each claim within that scope, Chesney denied said the plaintiffs' claims for negligence in the cabins' design.

"To the extent plaintiffs' claims are based on the superintendent's having approved the project subsequent to the completion of the work and without requiring submission of plans drawn by an architect or engineer, and the extent plaintiffs and DNC's claims are based on the lack of review from a rodent-exclusion perspective, such claims are barred by the discretionary function exception," she wrote in the Feb. 26 ruling.

Chesney also dismissed negligence claims based on the defendants' failure to conduct three evaluations of the cabins per year, on the lack of hiring an integrated pest management coordinator and failure to warn.

"No statute, regulation, policy, or other document mandated that the National Park Service provide visitors to Curry Village with a warning regarding the danger of Hantavirus. [The] claims are barred by the discretionary function exception."

But Chesney refused to dismiss claims based on negligence in delaying notification that guests may have been exposed to the virus, and failing to place rodent traps.

"The United States has not shown such claims are barred by the discretionary function exception," the judge said.

She added: "the stay of discovery on issues not pertaining to jurisdiction is hereby lifted."

The plaintiffs' attorney Daniel Brier, of Myers Brier & Kelly in Scranton, Pa., did not immediately return a phone call on Monday afternoon.

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