A helicopter view of a waterfall in Yosemite National Park on June 19, 2016, in Yosemite Valley, Calif.

The families of two boys killed when a tree limb fell on their tent in California’s Yosemite National Park may sue the government under the Federal Tort Claims Act (FTCA) for negligent failure to prevent the deaths, a divided Ninth Circuit said, according to Bloomberg Law.

The families alleged National Park Service officials knew or should have known about the danger posed by the tree, and failed to abate the risk or warn campers about it.

Their claims aren’t precluded by an exception to the FTCA that shields the government from liability for decisions that involve policy considerations, the U.S. Court of Appeals for the Ninth Circuit majority held Oct. 10.

No such discretion was involved here, the majority said.

The government admitted that in each of the two years preceding the 2015 accident, the campground was inspected and hundreds of hazard trees were identified, the opinion said.

Once park officials undertook to evaluate the danger of trees in the campground, they were required to do so according to the established policies in a Yosemite Park Directive that details how to rate tree hazards, the majority said.

Although it’s unclear whether the families will succeed in showing the officials were negligent in evaluating the tree under the system, such evaluation isn’t exempt from the tort claims act’s scope, it said.

Similarly, the park had a duty under the directive to inform visitors about the risk, which didn’t involve discretionary decisions, the majority said.

But the district court properly dismissed the families’ claims that the National Park Service fraudulently concealed the tree risk so it could continue charging camping fees, the majority said.

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