Kabana v. United States

Docket NumberCivil Action 3:20cv781
Decision Date31 March 2022
PartiesTHELMA J. KABANA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
CourtU.S. District Court — Eastern District of Virginia


This matter comes before the Court on Defendant United States of America's (the "United States") Motion to Dismiss (the "Second Motion to Dismiss" or "Motion") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).[1] (ECF No. 15.) Plaintiff Thelma J. Kabana responded to the Motion, (ECF No. 17), and the United States replied, (ECF No. 19). This matter is ripe for adjudication. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.[2] For the reasons stated below, the Court will grant the Motion.

I. Factual and Procedural Background

This action arises from injuries Kabana sustained on October 28, 2019, when she fell on a public concrete walkway during a visit to the Fredericksburg & Spotsylvania National Military Park (the "Park") in Spotsylvania, Virginia. In her Amended Complaint, Kabana seeks compensation for her injuries under the FTCA, [3] alleging gross negligence in connection with the United States's maintenance of the concrete walkway where she fell. On May 28, 2021, Kabana filed the Amended Complaint against the United States following this Court's dismissal of her initial Complaint. (ECF No. 13.)

A. Factual Allegations[4]

The United States owns and operates the Park through the National Park Service, an agency within the United States Department of the Interior ("DOI"). The Park offers visitors-at not cost-attractions and amenities, including "a concrete courtyard about twenty feet wide" underneath a pavilion. (Id. ¶ 13.) The pavilion provides restrooms, presents historical information, and displays a large map of the battlefield.

"The courtyard paving consists of concrete flagstone sections about four feet square" in size. (Id. ¶ 14.) "[T]he concrete surface of the courtyard is all similar textures and shades of gray." (Id. ¶ 15.) According to Kabana, a "construction joint" in the concrete pavement contains a depression, and two of the concrete flagstones meet at "the lowest point of depression." (Id. ¶¶ 15-17.) This created "a sudden, obscured drop-off in elevation between concrete slabs within a few feet of the map display, the difference in elevation being about 1.25 inches, or between one inch to one and one-half inches." (Id. ¶ 16.)

On October 28, 2018, at around 3:00 p.m., Kabana visited the Park for the first time. As she "walked in a normal manner by the large map display," Kabana "unexpectedly stepped on the edge of the uneven drop-off of the concrete slab" so that "only half of her foot was supported, causing her to lose her balance, fall and suffer significant injury." (Id. ¶ 20.) Specifically, Kabana sustained "a left ankle fracture that has required three surgeries ... as well as severe lumbar strain, and multiple bruises and contusions." (Id.) Kabana alleges that she "lost her balance and fell because of the sudden change in elevation at the construction joint between the two concrete slabs, and this hazard was not readily identifiable by a casual pedestrian such as" herself. (Id. ¶ 26.)

Kabana states that the United States knew of the uneven drop in the concrete because this "unreasonable and dangerous condition was present for an extended period of time at least a year or more prior to the incident." (Id. ¶ 21.) She says that the concrete "settled due to erosion of the subgrade material, from being subjected to heave during freeze and thaw cycles," and "an extended period of time necessarily had passed in order for the concrete slabs to have reached this state of misalignment." (Id. ¶ 24.) Kabana adds that the United States "actually saw and observed the tripping hazard based on the number of times the agents, employees, and representatives would have been at that site... providing ... knowledge of the dangerous condition of the concrete in the pavilion." (Id. ¶ 30.) Indeed, "multiple other persons have fallen and/or tripped due to this ... unreasonable and dangerous condition prior to the [instant] incident," including, on information and belief, "at least two other" people who tripped "on the same day as ... but prior to" Kabana's fall. (Id. ¶¶ 22, 36.)

Kabana avers that the United States, despite having knowledge of the uneven drop-off in the concrete slabs, "deliberately made a decision to not make any attempt to repair, remedy, remediate, correct, or otherwise fix said defect/tripping hazard, as evidenced by the uniform color texture, and appearance of the concrete at the time and place of Kabana's fall. (Id. 134.)

B. Procedural Background

On March 13, 2020, Kabana submitted a Standard Form 95[5] to the National Park Service, seeking compensation for the injuries she sustained from the October 28, 2019 fall. (See ECF No. 14-1, at 1.) On May 11, 2020, the DOI notified Kabana that her claim had been denied. (ECF No. 14-2, at 1.) In the notice, a DOI attorney informed Kabana that "the government is [not] legally responsible for [her] accident in accordance with the FTCA and Virginia law."[6](Id.) The notice apprised Kabana of her right to "file suit in an appropriate United States District Court" within "six (6) months after the date of mailing of this letter" if she felt "dissatisfied with this determination." (Id. 2.)

On October 6, 2020, five months after receiving the notice of denial, Kabana timely filed her initial Complaint. On December 11, 2020, the United States filed a Motion to Dismiss for failure to state a claim (the "First Motion to Dismiss"). (ECF No. 9.) In support of its First Motion to Dismiss, the United States argued that the Virginia recreational land use statute, Va. Code § 29.1-509, [7] (the "VRUS") barred Kabana's claim of ordinary negligence, and that she otherwise fails to state a claim of gross negligence.

On May 17, 2021, the Court granted the United States's Motion to Dismiss without prejudice. (ECF No. 13.) As explained in the Memorandum Opinion accompanying its May 17, 2021 Order, the Court dismissed Kabana's initial Complaint because she did "not allege facts that would allow the Court to reasonably infer the United States acted with gross negligence," as required by the Virginia recreational land use statute. (ECF No. 12, at 6.)

On May 28, 2021, Kabana filed her Amended Complaint. (ECF No. 14.) In the Amended Complaint, Kabana brings a single count for gross negligence, alleging that the United States's "operation and maintenance of the national military park ... create[d] or allow[ed] to exist an unreasonable, dangerous tripping or fall hazard on the premises in the form of the uneven, obscured, cracked, sunken, or otherwise dangerous concrete walkway for an extended and lengthy period of time." (ECF No. 14 23.) Kabana seeks $600, 000 of compensatory damages, plus interest, for the United States's gross negligence. (Id. 9.)

The United States filed its Second Motion to Dismiss. The matter is fully briefed. For the reasons articulated below, the Court will grant the Second Motion to Dismiss with prejudice.

II. Standards of Review: Rule 12(b)(6)[8]

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). To survive Rule 12(b)(6) scrutiny, a complaint must contain sufficient factual information to "state a claim to relief that is plausible on its face." Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2) ("A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief."). Mere labels and conclusions declaring that the plaintiff is entitled to relief are not enough. Twombly, 550 U.S. at 555. Thus, "naked assertions of wrongdoing necessitate some factual enhancement within the complaint to cross the line between possibility and plausibility of entitlement to relief." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted).

A complaint achieves facial plausibility when the facts contained therein support a reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. * at 556; see also Ashcroft v. Iqbal, 556 U.S. 662, 663"(2009). This analysis is context-specific and requires "the reviewing court to draw on its judicial experience and common sense." Francis, 588 F.3d at 193 (citation omitted). The court must assume all well-pleaded factual allegations to be true and determine whether, viewed in the light most favorable to the plaintiff, they "plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; see also Kensington, 684 F.3d at 467 (finding that the court in deciding a Rule 12(b)(6) motion to dismiss "'must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff" (quoting Kolon Indus., 637 F.3d at 440)).

III. Analysis

Kabana does not plausibly state a claim under the FTCA because the Amended Complaint does not allege facts (even read favorably treated as true, and considered alongside the photographic evidence) that would enable the Court to reasonably infer that the United States acted with gross negligence in...

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