Appeals Court Upholds $10.2 Million Award to Injured Snowmobiler

A federal appeals court panel has upheld a lower court’s decision ordering the U.S. Forest Service and a snowmobiler to pay nearly $10.2 million to a Michigan man who suffered severe brain injuries when he was struck by a snowmobile near West Yellowstone in 1996.

The panel’s 20-page opinion, issued Wednesday, stems from a February 2004 decision by U.S. District Judge Donald Molloy of Missoula. Molloy ruled that the Forest Service must pay 40 percent of the award for the crash, which left Brian Musselman of Hope, Mich., with permanent disabilities.

Court records showed that 16 days before Musselman was injured, two snowmobiles and a snow grooming machine were involved in a crash at the same location. Molloy determined the Forest Service failed to fix dangerous conditions along the groomed trail, or to warn snowmobilers of the hazard.

He assigned 50 percent of the liability in the crash to Jamie Leinberger of Bay City, Mich., one of two snowmobilers Musselman’s family originally sued.

According to court records, Musselman met a group of friends — including Leinberger, Patrick Kalahar and Tim Johnson — at a restaurant north of West Yellowstone on Feb. 25, 1996. Musselman and Kalahar each drank at least three beers, Johnson consumed three to four beers, and Leinberger had four to eight beers, court documents said. Kalahar and Johnson’s hometowns were not available.

The four left the restaurant on their snowmobiles at about 10 p.m. and drove down a stretch of Big Sky Trail that none of them had been on before.

Court records say Musselman, an “expert snowmobiler,” and Johnson were in the lead and went over an unexpected and unmarked drop-off, causing Johnson to crash.

Musselman then got off his snowmobile and entered the trail, either to help Johnson or to warn the other two riders of the steep drop, court documents said.

It was at that time that Leinberger and Kalahar “came flying over the hill side-by-side,” court records said. “One of the two riders hit Musselman’s head, causing catastrophic brain injuries.”

The injury left Musselman unable to swallow, speak, understand complex communication or live on his own, court records said.

His family sued the Forest Service, the state Department of Fish, Wildlife and Parks, the West Yellowstone Chamber of Commerce, and Kalahar and Leinberger. Kalahar and the chamber of commerce both settled before the trial, and FWP was dismissed from the suit.

In his ruling, Molloy said it was impossible to determine which snowmobile hit Musselman. But he concluded that Kalahar and Leinberger together were 50 percent at fault because they came over the hill at a high rate of speed and were under the influence of alcohol.

The Forest Service was 40 percent at fault for failing to maintain a safe trail or mark dangerous areas, and Musselman was 10 percent at fault, Molloy ruled.

The agency appealed Molloy’s ruling, saying there was no causal relationship between the lack of a warning sign at the hill and Musselman’s injuries. It said Kalahar and Leinberger’s speed and intoxication, along with Musselman’s carelessness in entering the trail, were the “independent, intervening causes” of the crash.

A three-judge panel of the 9th U.S. Circuit Court of Appeals disagreed. It said the Forest Service was made aware of the hazards of the crash site through its investigation of the wreck that happened 16 days before Musselman was injured.

The Forest Service also argued that its decisions regarding “warranting” of the trail were grounded in policy considerations and were the type of discretionary decisions Congress intended to shield from tort liability. Warranting is the process the agency uses to identify and correct hazards on trails.

The 9th Circuit panel responded that the agency warranted the trail in 1993 and didn’t identify the hill as a hazard. At that time, the speed limit on the trail was 35 mph.

“Later, in 1996, the (Forest) Service raised the speed limit to 45 mph — the limit in effect at the time of the accident — simply to conform to the speed limit in Yellowstone Park, resulting in the creation of the hazardous condition at the hill,” the panel wrote. “Because the trails were never warranted at the higher speed limit of 45 mph, the Service is not shielded by the warranting process.”

Calls to the attorneys for Musselman’s family and the Forest Service were not immediately returned Wednesday evening, and attempts to reach Leinberger were unsuccessful.