Brotman v. U.S.

• Decision Date: 05 September 2000
• Docket Number: No. 99 Civ. 8695(RWS).,99 Civ. 8695(RWS).
• Citation: 111 F.Supp.2d 418
• Parties: Eileen BROTMAN and Aaron Brotman, Plaintiffs, v. The UNITED STATES of America, and The Statue of Liberty Ellis Island Foundation, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

111 F.Supp.2d 418

Eileen BROTMAN and Aaron Brotman, Plaintiffs, v. The UNITED STATES of America, and The Statue of Liberty Ellis Island Foundation, Inc., Defendants.

No. 99 Civ. 8695(RWS).

United States District Court, S.D. New York.

September 5, 2000.

Simon & Newman, Forest Hills, NY, by Keith A. Gilman, of counsel, for plaintiffs.

Honorable Mary Jo White, United States Attorney for the Southern District of New York, New York City, by Andrew W. Schilling, Assistant U.S. Attorney, of counsel, for defendants.

OPINION

SWEET, District Judge.

Defendant the United States of America (the "Government") seeks an order dismissing the complaint in this action as against the Government for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3). The motion is opposed by plaintiffs Eileen Brotman ("Mrs.Brotman") and Aaron Brotman ("Mr.Brotman") (collectively, the "Brotmans").

For the reasons set forth below, the motion will be granted.

The Parties

The Brotmans are individuals residing in Nassau County, New York.

The Government at all relevant times owned, managed, and operated certain lands and premises known as the Statue of Liberty National Monument, Liberty Island, New York, including the stairways.

The Statue of Liberty Ellis Island Foundation, Inc. (the "Foundation") is a corporation organized and existing under the laws of New York which at all relevant times operated and managed said lands and premises, including the stairways thereat.

Prior Proceedings

The complaint in this personal injury action was filed on August 6, 1999. In this action the Brotmans seek to recover damages for the alleged negligence of the Government — specifically, employees of the National Park Service ("NPS") — and the Foundation. The basis asserted for jurisdiction over the claims against the Government is the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) et seq. The basis asserted for jurisdiction over the claims against the Foundation is supplemental jurisdiction, pursuant to Federal Rule of Civil Procedure 1367.

The instant motion was filed on February 29, 2000, and oral argument was heard on May 3, 2000, at which time the matter was deemed fully submitted.

Facts

The following facts are derived from the pleadings, declarations, and exhibits submitted by the parties, as is appropriate in deciding a motion to dismiss for lack of subject matter jurisdiction.¹ See Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir.1998) ("on a `challeng[e][to] the district court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings'") (quoting Antares Aircraft, L.P. v. Federal Republic of Nig., 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992)). The burden of proving subject matter jurisdiction is on the party asserting it. See e.g., Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). Thus, argumentative inferences favorable to the party asserting jurisdiction have not been drawn. See Atlantic Mutual, 968 F.2d at 198. The material factual allegations presented in the complaint are also included herein and are accepted as true for purposes of this motion. See id. at 198; Lefrak v. United States, No. 94 Civ. 7668, 1996 WL 420308, at *1 (S.D.N.Y. July 26, 1996).

The Statue of Liberty was declared a National Monument in 1924, and has been listed in the National Register of Historic Places maintained by the Secretary of the Interior since 1966.

The interior of the Statue of Liberty was not originally intended for public visitation. Public access was first accommodated in the late 1800's by means of wooden stairs and ladders. Metal stairs, including the extant double-spire staircase, were installed around the turn of the century. The statue was rehabilitated for the first time in the 1930's in order to accommodate an increasing number of visitors. At that time, corridors were tunneled into the concrete of the statue's pedestal and larger stairs installed within it.

In 1982 the NPS and the Foundation commenced a project (the "1980's Project") to rehabilitate the Statue of Liberty National Monument. This project was completed in 1986. The Statue of Liberty was reopened to the public on July 5, 1986.

Because the Statue of Liberty National Monument is listed in the National Register of Historic Places, the 1980's Project was governed by the Secretary of the Interior's Standards for the Treatment of Historic Preservation Projects (the "Standards"). The Standards, which are promulgated pursuant to the National Historic Preservation Act, 16 U.S.C. § 470, apply to inter alia historic properties owned by the Government.

The Standards apply to all "treatments," i.e., preservation, rehabilitation, restoration, and reconstruction, undertaken on National Register properties. See 36 C.F.R. § 68.3 (1984).² Rehabilitation "[m]eans the act or process of returning a property to a state of utility through repair or alteration that makes possible an efficient contemporary use while preserving those portions or features of the property that are significant to its historical, architectural, and cultural values." 36 C.F.R. § 68.2(e) (1984). Under the Standards "any treatment must be consistent with the historic character of the structure," 36 C.F.R. § 68.3.

A Declaration submitted by the NPS Project Architect for the 1980's Project, John Robbins ("Robbins"), explains the nature of the project and considerations it entailed.³ The 1980's Project was considered a rehabilitation by NPS because the project left the original statue and pedestal largely intact, and focused on preserving the historic character of the statue and pedestal while at the same time making repairs, alterations, and additions to accommodate increased visitation. The structural features of the interiors of the pedestal and the statue, including the metal and concrete stairs, the lighting, the walls, and the finishes were considered historic for the purpose of the 1980's Project, whether they were part of the original design and construction or had been previously modified during the 1930's rehabilitation project or the intervening years.

The lighting conditions within the statue and pedestal are not now and were not historically uniform. The level of lighting at any particular location is a function of a number of factors, including the amount of natural light coming in, the placement of light fixtures, the use of spotlights to highlight significant structural elements, and the color of the interior surfaces, which is a dark grey and reflects less light than would a lighter color.

The lighting conditions within the pedestal were considered adequate for visitation prior to the 1980's Project. Although some alterations and additions were made as part of the 1980's Project in order to accommodate an increased number of visitors, the replacement stairs, light fixtures, and finishes were designed to be consistent with the character of the interiors as they existed prior to the 1980's Project. The decision to be consistent with the historic character of the statue and pedestal interiors was made in light of the Standards.

In addition to the Standards, other relevant agency materials are the Management Policies, National Park Service (the "Management Policies") and the Cultural Resources Management Guidelines, National Park Service (the "Management Guidelines").

On March 2, 1988, the Brotmans visited the Statue of Liberty along with their son and daughter-in-law. The group, having visited the crown of the statue, decided to descend by walking down the metal staircase within the pedestal because there was a line for the elevator. Mrs. Brotman was the last of the four, who proceeded down the stairs single-file. After descending more than one flight of stairs and proceeding at a normal pace for "five to eight minutes," Mrs. Brotman missed the final step before a landing and fell onto the landing. Specifically, while her right foot was on the penultimate step before the landing, her left foot accidentally missed the last step, causing her to fall.

The Brotmans allege that there was a sudden drop-off in the amount of lighting provided at the point in the stairwell where Mrs. Brotman fell, that the lighting at that point was insufficient, and that she fell because she could not see the final step before the landing due to the insufficient lighting. They also allege that there was no warning sign posted at the location of her fall. They do not claim that any existing light fixtures were turned off, broken, or not functioning properly but, rather, that the problem was the lighting design.

Discussion

I. The FTCA And The Discretionary Function Exception

The United States is immune from suit except as it consents to be sued. See United States v. Mitchell, 463 U.S. 206, 210-211, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Thus, consent is a prerequisite for subject matter jurisdiction in the federal courts. See Mitchell, 463 U.S. at 212, 103 S.Ct. 2961; United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941).

The FTCA is a limited waiver of the federal government's sovereign immunity. See United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). Pursuant to the FTCA, the United States shall be liable, to the same extent as a private party, for damages:

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.

28 U.S.C. § 1346(b).

This waiver of sovereign immunity is subject to a number of exceptions. See 28 U.S.C. § 2680. One of these is the discretionary function exception, pursuant to which the government has not consented to be sued on:

[a]ny claim ... based upon the exercise or...