Wesberry v. United States
Wesberry v. United States
Opinion of the Court
DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION [29]; GRANTING DEFENDANT'S MOTION TO DISMISS [26]
I. INTRODUCTION
Plaintiffs Becky Wesberry and Jim Wesberry bring this personal injury action against the United States. The Wesberrys, a married couple from Texas, allege that Becky Wesberry fell and sustained serious injuries when leaving Ford's Theatre, the historic site of President Abraham Lincoln's assassination on April 14, 1865. The United States National Park Service, an agency of the United States Department of the Interior, is responsible for administering the Theatre. The Wesberrys assert a negligence claim against the United States under the Federal Tort Claims Act ("FTCA"),
II. BACKGROUND
A. Ford's Theatre and Ms. Wesberry's Injury
Ford's Theatre is administered by the National Park Service as a historic site within the National Mall and Memorial Parks Area. See Decl. of Karen Cucurullo ("Cucurullo Decl.") ¶ 3, ECF No. 12-1. In 1968, the National Park Service re-opened Ford's Theatre to the public after attempting to restore it to the state in which it operated on the night President Lincoln was assassinated.
The Organic Act requires the National Park Service to manage the National Park System in a manner that conforms to the purpose of the parks, which is to "conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life ... as will leave them unimpaired for the enjoyment of future generations."
The Ford's Theatre façade includes five doors that exit from the lobby onto 10th Street, Northwest. See Am. Compl. ¶¶ 12-13, ECF No. 9; Cucurullo Decl. ¶ 7. Because the sidewalk outside is slightly below the exits and the sidewalk itself is on a slope, each exit includes between one and five steps down to the walkway. See Am. Compl. ¶¶ 13, 17; Cucurullo Decl. ¶ 7. According to Plaintiffs, three of the five exits were not originally doorways at all, but rather windows that were converted sometime in the 1960's. See Pls.' Mot. for Reconsideration at 10, ECF No. 29. When the Theatre was re-opened under National Park Service control in 1968, none of the five exits had handrails. See Cucurullo Decl. ¶ 9; accord Am. Compl. ¶ 16. However, sometime between 1968 and 1996, handrails were installed alongside stairs for three of the five exits-specifically, the three exits with the greatest number of steps. See Cucurullo Decl. ¶ 8; Def.'s Mot. Dismiss Ex. 2, ECF No. 12-4 (depicting stairs with handrails).
*36According to the Amended Complaint, on April 28, 2014, Plaintiffs Becky and Jim Wesberry were leaving Ford's Theatre when Ms. Wesberry fell down two, low-rise steps at the building's exit, causing her multiple facial lacerations, loss of consciousness, and a broken hip. See Am. Compl. ¶¶ 9, 19-23. Ms. Wesberry and her husband subsequently brought suit against the United States for negligence and loss of consortium, claiming that the Government was negligent in failing to install handrails and other safety features on the stairs from which she fell. See Am. Compl. ¶¶ 24-31. Sometime thereafter, handrails were installed alongside the stairs of the Theatre's remaining two exits. See Decl. Richard Ramos, ECF No. 29-2.
B. The FTCA and the Discretionary-Function Exception
The Government responded to Plaintiffs' suit by moving to dismiss the matter under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction. Specifically, the Government claimed that the FTCA,
"If sovereign immunity has not been waived, a claim is subject to dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction." Clayton v. District of Columbia,
The FTCA is a federal statute that provides a limited waiver of sovereign immunity, allowing the United States government to be held liable for negligent acts and omissions of federal employees acting within the scope of their employment. See
*37Sloan v. U.S. Dep't of Hous. and Urban Dev. ,
To determine whether the discretionary function exception applies to particular Government actions, the Supreme Court has propounded a two-step test. See Gaubert ,
Second, even if "the challenged conduct involves an element of judgment," that judgment must be "of the kind that the discretionary function exception was designed to shield." Gaubert ,
C. The Court's Prior Ruling and the Present Motions
In ruling on the Government's prior motion to dismiss, the Court concluded that the discretionary function exception might very well present a bar to Plaintiffs' claims. See Mem. Op. at 2, ECF No. 19. Indeed, the Court found that, if the National Park Service's decisions with regard to warning signs, handrails, and other safety features at Ford's Theatre were discretionary, they would be of the kind that the discretionary function was designed to protect because those decisions are based on a weighing of various public policy considerations. See id. at 20. However, the Court found that it could not fully resolve the jurisdictional inquiry because it was still premature to determine whether the decisions at issue were, in fact, discretionary. See id. at 22. That is, whether there was any binding mandate that governed the agency's decision-making process. Id. Thus, the Court permitted the Plaintiffs to conduct limited, jurisdictional discovery on that question. See id. at 22-27.
The Plaintiffs have now taken jurisdictional discovery and both the Government and the Plaintiffs have filed new motions addressing the jurisdictional questions under the FTCA. First, the Government has renewed it motion to dismiss for lack of subject-matter jurisdiction, claiming that there is no evidence that it was bound by any statute, regulation, or policy. See Def.'s Mot. Dismiss or Summ. J. at 1-2, ECF No. 26. According to the Government, the decisions concerning stairway safety features were indeed protected by the discretionary function exception and thus not subject to suit under the FTCA. See id. at 8-18. For this reason, it asks the *38Court to dismiss the suit for lack of subject-matter jurisdiction. Id. at 1. Plaintiffs have opposed the Government's motion and have filed their own motion for reconsideration of the Court's prior decision. Plaintiffs argue that "two newly available pieces of evidence" cast doubt on this Court's prior holding and, in fact, suggest that the decisions not to install handrails alongside the stairs at Ford's Theatre were not judgments so grounded in public policy as to be protected under the discretionary function exception. See Pls.' Mot. Reconsideration at 1, ECF No. 29.
III. LEGAL STANDARD
Federal courts are courts of limited jurisdiction, and the law presumes that "a cause lies outside this limited jurisdiction." Rasul v. Bush,
IV. ANALYSIS
The parties' present motions ask the Court to finally resolve whether the FTCA's discretionary function exception applies to the decisions at issue in this case. For the reasons stated below, the Court finds that the FTCA's discretionary function exemption applies and therefore dismisses this suit for want of subject-matter jurisdiction.
A. Discretionary Nature of the Decisions at Issue
The Government asks this Court to pick up where its last Memorandum Opinion left off-the discretionary nature of the decisions at issue. As noted above, the discretionary function exemption does not apply if "the injury resulted from a government employee's failure to follow a specific, mandatory policy requiring a particular course of action." Singh v. S. Asian Soc'y of the George Washington Univ. , No. 06-0574,
Plaintiffs contend, however, that the National Park Service was, in fact, constrained by Director's Order # 58 ("DO-58"). See Pls.' Mem. P. & A. at 7-9, ECF No. 28. DO-58 is an order that was issued by the Director of the National Park Service and was intended to provide a "more detailed interpretation of the structural fire policy articulated in National Park Service Management Policies 2006 by setting forth operational policies and procedures necessary to establish and implement structural fire management programs."See Director's Order # 58: Structural Fire Management , Nat'l Park Serv. at § I (Apr. 22, 2010) ("DO-58"). Plaintiffs point out that, under DO-58, the National Park Service announced that it would "adopt National Fire Protection Association ('NFPA') codes and standards and recommend practices for fire prevention, protection and life safety, with exceptions and modifications as adopted in [Reference Manual # 58]." DO-58 at § IV.H; see also Pls.' Mem. P. & A. at 7-8. Although not explicitly stated in DO-58, Plaintiffs contend that this adoption of NFPA codes and standards necessarily implied an espousal of certain sections of NFPA's Life Safety Code that they claim required handrails to be installed on stairs and ramps. See Pls. Mem. P & A. at 7-8; NFPA 101: Life Safety Code §§ 7.2.2.4.1.1, 7.2.2.4.1.6 (2012 ed.), ECF No. 28-3. Accordingly, Plaintiffs argue that the discretionary function exception does not bar their claims because there was a specific, mandatory policy requiring the National Park Service to install handrails on the stairs on which Ms. Wesberry fell. Pls.' Mem. P. & A. at 9.
But Plaintiffs read too much into the language of DO-58. Nothing in DO-58 specifically adopts the NFPA provisions cited by Plaintiffs nor is there any language indicating that the National Park Service intended to strictly adhere to each and every NFPA code provision without alteration. Indeed, the document itself expressly states that the National Park Service will make "exceptions and modifications" to NFPA standards. DO-58 at § IV.H. Thus, it unsurprisingly recognizes that "not all structures will be in full compliance" and notes that deviations from code compliance may be "acceptable." DO-58 § IV.I. Furthermore, even the NFPA codes and standards are not as inflexible as Plaintiffs would have this Court believe. Indeed, while Plaintiffs focus on two NFPA provisions that concern handrails, they entirely ignore NFPA provisions that discuss historic structures. Those codes and standards explicitly state that, in the context of historic buildings, strict compliance with its provisions is not necessarily required in every instance. NFPA 101: Life Safety Code § 4.6.4.2 ("The provisions of this Code shall be permitted to be modified by the authority having jurisdiction for buildings or structures identified and classified as historic buildings or structures where it is evidence that a reasonable degree of safety is provided."); NFPA 914: Code for Fire Protection of Historic Structures § 1.4.2 (2010 ed.) ("Historic Structures or portions of such structures that do not strictly comply with this code shall be considered to be in compliance if it can be shown that equivalent protection has been provided or that no specific hazard will be created or continued through noncompliance.");
B. The Kind of Judgment Protected by the Discretionary Function Exception
Having found that the judgments at issue were, in fact, discretionary, the Court must consider whether they were "of the kind that the discretionary function exception was designed to shield." Gaubert ,
Federal Rule of Civil Procedure 54(b) governs situations in which a party seeks reconsideration of an interlocutory order. See Fed. R. Civ. P. 54(b) ("[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities."). Relief pursuant to Rule 54(b) is to be provided "as justice requires," and may be warranted when a court has "patently misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or where a controlling or significant change in the law has occurred." U.S. ex rel. Westrick v. Second Chance Body Armor, Inc. ,
At the same time, a court's discretion under Rule 54(b) is "limited by the law of the case doctrine and subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Singh v. George Washington Univ. ,
Plaintiffs contend that reconsideration is warranted in this case based on two purportedly new pieces of evidence. First, Plaintiffs assert that it was revealed during jurisdictional discovery that Ford's Theatre was renovated between 2007 and 2009. See Pls.' Mot Reconsideration at 4. These renovations included the addition of: "elevators; modern heating; ventilation, and air-conditioning systems; up-to-date sound, lighting, and stage-rigging systems; wheelchair-accessible restrooms; and more comfortable seating." Pls.' Mot. Reconsideration at 12. Moreover, Plaintiffs allege that, during that same period, a "new, contemporarily designed glass-and-steel lobby was added" along with a "new 'parlor' for special events." Pls.' Mot. Reconsideration at 9, 12. Second, Plaintiffs claim that they learned, after filing their Complaint, that handrails were installed alongside the stairs where Ms. Wesberry fell. See Pls.' Mot. Reconsideration at 13. Plaintiffs argue that "[t]he newly available evidence about the modernization of Ford's Theatre and the installation of handrails alongside the stairs where [Ms.] Wesberry fell ... show that the failure to put those handrails in place before the accident does not involve policy decisions of the sort that the FTCA's discretionary-function exception protects from litigation." Pls.' Mot. Reconsideration at 18.
Despite Plaintiffs' characterizations, it is far from clear that either of these "newly available pieces of evidence" were "not previously available" to them. See Murphy ,
Nevertheless, even considering Plaintiffs' arguments anew, their motion fails. At the outset, the Court must note that Plaintiffs' factual predicate appears to be somewhat inaccurate. While it is true that the National Park Service renovated Ford's Theatre between 2007 and 2009, the Government has provided evidence showing that the renovations to the Theatre were not as extensive as Plaintiffs claim. Indeed, the National Park Service's principle project manager for the 2007-2009 renovations attests, contrary to Plaintiffs' assertions, that the improvements at Ford's Theatre did not include a parlor or a modernized, glass-and-steel lobby. See Decl. Mike Giller ¶ 9, ECF No. 34-1. Rather, those renovations were undertaken by a private organization at an adjacent building that is neither part of the Ford's Theatre National Historic Site nor managed by the National Park Service in any way. See Decl. Mike Giller ¶¶ 7-8. The 2007-2009 renovations at Ford's Theatre were decidedly more modest. They included upgrades to the building's ventilation and climate systems, restroom renovations, and certain theater improvements, all of which were intended to enhance visitor experience without degrading the historical character of the Theatre. See Decl. Mike Giller ¶ 3; Def.'s Opp'n Pls.' Mot. Reconsideration at 5, ECF No. 34. Despite having the opportunity to do so, Plaintiffs have not replied to these assertions.
Plaintiffs argue that consideration of the historical improvements to Ford's Theatre should alter this Court's prior determination for two reasons. First, Plaintiffs claim that the developments at Ford's Theatre "call into serious question the importance of ... the goal of preserving Ford's Theatre and leaving it unimpaired for future generations." Pls.' Mot. Reconsideration at 12 (internal quotation marks and citations omitted). That is to say, Plaintiffs challenge whether the National Park Service has a preservation interest in Ford's Theatre at all because the Government has undertaken certain improvements of the structure over the years. This contention is patently wrong. To start, the significant value of Ford's Theatre to the heritage of *43the United States should be obvious to anyone with even a basic understanding of American history and is clearly evinced by the fact that the structure is listed on the National Registry of Historic Places. Under the Organic Act, the National Park Service is required "to conserve the scenery, natural and historic objects ... and to provide for the enjoyment of the scenery, natural and historic objects ... as will leave them unimpaired for the enjoyment of future generations."
As this Court previously explained, the discretionary function exception "is not limited to historical, cultural, or natural sites maintained in their pristine state." Mem. Op. at 17. Thus, an historic building need not necessarily eschew electricity, running water, or certain other modern conveniences to remain worthy of preservation. In the case of Ford's Theatre, the renovations and improvements cited by Plaintiffs have not so fundamentally altered the structure that its historic fabric has been torn asunder. Rather, the National Park Service has sought to improve and enhance the visitor experience without degrading the Theatre's historic character. Thus, the National Park Service continues to balance the legitimate public interests of safety and historic preservation, which are precisely the kind of public policy based "decisions which Congress intended to shield from judicial second-guessing." See Mem. Op. at 18 (quoting Chantal v. United States ,
But Plaintiffs also make another argument. Plaintiffs suggest that, even if the National Park Service has a preservation interest in Ford's Theatre, there is no such interest at play with regard to the addition of handrails at the 10th Street façade because, not only did some of the exits already have handrails at the time of Ms. Wesberry's fall, but the National Park Service later decided to add handrails at the exit that Ms. Wesberry used. See Pls.' Mot. Reconsideration at 13. This argument, too, is misguided. The question that the Court must resolve is whether the decisions at issue "implicate social, economic, or political policies." See Gaubert ,
Finally, Plaintiffs argue that this is a case like the one addressed by the Supreme Court in Indian Towing Co. v. United States ,
As Indian Towing illustrates, and as later cases have emphasized, "garden-variety" maintenance is not the kind of discretionary judgment that is protected by the discretionary function exception. Cope ,
The decision whether to install handrails along the façade of Ford's Theatre very clearly impacts the outward appearance of the Theatre and therefore requires the National Park Service to carefully weigh concerns of safety with considerations for the historic preservation of the structure. This is precisely the sort of judgment "that the discretionary function exception was designed to shield." Gaubert ,
V. CONCLUSION
For the foregoing reasons, the Court finds that the decisions at issue in this case implicate the FTCA's discretionary function exception and that the United States has not consented to suits of this nature. Accordingly, the Court must dismiss this suit for want of subject-matter jurisdiction. An order consistent with this Memorandum *45Opinion is separately and contemporaneously issued.
The Organic Act, originally codified at
Indeed, the Court believes that it is very likely that, when the Wesberrys visited in 2014, they themselves might have recognized that the more-than-150-year-old structure had been modernized with the supposed significant additions that they cite, such as a "contemporarily designed glass-and-steel lobby" or other modern conveniences like elevators or climate control.
Reference
- Full Case Name
- Becky WESBERRY v. UNITED STATES
- Cited By
- 1 case
- Status
- Published