Koussa v. U.S., No. CIV.A. 02-114S.

• Decision Date: 14 April 2003
• Docket Number: No. CIV.A. 02-114S.
• Citation: 261 F.Supp.2d 91
• Parties: June KOUSSA, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Rhode Island

261 F.Supp.2d 91

June KOUSSA, Plaintiff, v. UNITED STATES of America, Defendant.

No. CIV.A. 02-114S.

United States District Court, D. Rhode Island.

April 14, 2003.

John O. Mancini, Esq., Ferrucci Russo P.C., Providence, RI, for Plaintiff(s).

Margaret E. Curran, Esq., U.S. Attorney, Dulce Donovan, Assistant U.S. Attorney, Providence, RI, for Defendant(s).

MEMORANDUM OPINION

SMITH, District Judge.

Plaintiff June Koussa filed her Amended Complaint on July 29, 2002, alleging that Defendant United States of America is liable under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., for personal injuries sustained by Koussa when she tripped and fell over a speed bump located in the parking lot of the United States Post Office in Wakefield, Rhode Island. This case is now before the Court on the United States' Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.¹ The United States claims that the Plaintiffs FTCA cause of action fails because of the "discretionary function" exception to the FTCA, 28 U.S.C. § 2680(a). Because this Court does not agree that the discretionary function exception to the FTCA applies to the placement of a speed bump at the Wakefield Post Office, the United States' motion must be denied.

I. Standard of Review

In considering a motion to dismiss for lack of subject matter jurisdiction, the Court assumes that all material allegations set forth in the Plaintiffs Complaint are true. Williams v. City of Boston, 784 F.2d 430, 433 (1st Cir.1986). Factual averments in the complaint, as well as any reasonable inferences that might be drawn from them, are construed in favor of the plaintiff. Id. at 433. See Campbell v. United States, 167 F.Supp.2d 440, 443 (D.Mass.2001). When ruling on a 12(b)(1) motion, "the court may consider whatever evidence has been submitted, such as the depositions and exhibits submitted in this case." Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996).

II. Facts

The Plaintiff is a resident of Narragansett, Rhode Island. On August 24, 1999, Ms. Koussa visited a United States Post Office in nearby Wakefield, Rhode Island. While entering the post office, Ms. Koussa "slipped and fell to the pavement in front of the entrance to the Post Office." Amended Compl. ¶ 6. The Amended Complaint does not so specifically state, but representations made by Plaintiffs counsel at the Rule 16 Conference and in defense of this Motion indicate that Ms. Koussa tripped over a speed bump located in a travel lane of the post office parking lot. See Memorandum of Law in Support of Objection to Defendant's Motion for Judgment on the Pleadings at 2.

Shortly following the time the United States Postal Service ("USPS") moved into its Wakefield facility, customers began complaining about the high rate of speed at which some vehicles traveled in the post office parking lot. In response, Postmaster William Harrington (the "Postmaster") placed "5 mph" speed limit signs at the entrance to the parking lot. However, despite these efforts, the speeding problem continued.

Due to the continued concerns regarding the excessive speed of vehicle traffic in the post office parking lot, the Postmaster placed two speed bumps in the travel lane in front of the post office. The speed bumps were bright yellow, six feet long, ten inches wide, and two inches in height.

As a result of her fall, Ms. Koussa claims to have suffered numerous injuries, including knee abrasions, a broken nose, a concussion, neck pain and discomfort. Amended Compl. ¶ 7. On August 8, 2001, Ms. Koussa submitted an administrative tort claim to the USPS seeking $50,000 in damages. The claim was denied on September 4, 2001. This cause of action followed.

III. Analysis

The FTCA is a limited waiver of the federal government's sovereign immunity. See Shansky v. United States, 164 F.3d 688, 690 (1st Cir.1999). The FTCA provides a basis for civil actions against the United States as follows:

[For] the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). However, the FTCA is replete with exceptions.

In this case, the United States asserts that Plaintiffs claim is barred by the "discretionary function" exception to the FTCA.² See 28 U.S.C. § 2680(a). If that exception applies to the challenged governmental conduct, the United States has not waived its sovereign immunity and this Court will lack subject matter jurisdiction over the Plaintiffs Complaint. See Wood v. United States, 290 F.3d 29, 36 (1st Cir.2002); Attallah v. United States, 955 F.2d 776, 783 (1st Cir.1992) ("[C]ases which fall within the discretionary function exception must be necessarily dismissed, as a matter of law, for lack of subject matter jurisdiction.").

The discretionary function exists "to protect the `discretion of the executive or administrator to act according to one's judgment of the best course.'" Wood, 290 F.3d at 36 (quoting Dalehite v. United States, 346 U.S. 15, 34, 73 S.Ct. 956, 97 L.Ed. 1427 (1953)). The United States Supreme Court has provided lower courts with a framework to determine whether the discretionary function exception applies in an individual case. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). The first step in determining the applicability of the exception is to identify the conduct that allegedly caused the harm at issue. Id. at 322-23, 111 S.Ct. 1267. Here, the relevant government conduct is the Postmaster's decision to place speed bumps in the travel lane at the Wakefield Post Office.

Next, the Court must determine whether the identified conduct involved an element of judgment or choice. Id. In Gaubert, the Supreme Court held that conduct is non-discretionary when a "federal statute, regulation or policy specifically prescribes a course of action for an employee to follow...." Id. See Wood, 290 F.3d at 36. If it determines that the conduct involved an element of judgment or choice, the Court must "determine whether that judgment is of the kind that the discretionary function exception was designed to shield," Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); that is, whether it was "grounded in social, economic, and political policy" considerations or at least based on considerations of public policy. Id. at 537, 108 S.Ct. 1954. In creating such an exception, "Congress intended `to protect the government from liability that would seriously handicap efficient government operations.'" Wood, 290 F.3d at 36 (quoting United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963)). Statutes, regulations and agency guidelines are appropriate sources for courts to look to in determining established government policy. Id. (citing Gaubert, 499 U.S. at 322, 111 S.Ct. 1267). When a function is discretionary, there is a presumption that "the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324, 111 S.Ct. 1267. In other words, it is the plaintiffs burden to show that the decision does not lend itself to a public policy analysis. See Shansky, 164 F.3d at 692.

This Court finds that the Postmaster's decision in this case was discretionary. The Postmaster's decision to place speed bumps in the traffic lane at the Post Office clearly involved an element of judgment or choice. There are no statutes or regulations mandating that the Postmaster act in a specific manner with respect to the erection of speed bumps, or more generally, traffic regulation. The statute or regulation that most closely regulates such conduct involves a postal regulation, which provides the Postmaster with the authority to implement vehicular and pedestrian traffic requirements when deemed necessary. See 39 C.F.R. § 232.1(k)(5). This regulation specifically provides the Postmaster with discretion in its text. Therefore, because no statutes or regulations mandate a specific course of action with respect to the erection of speed bumps, this Court holds that the Postmaster's conduct was discretionary.

In order for conduct deemed discretionary to fall within the discretionary function exception of the FTCA, the government decision must have involved, or at least be susceptible to, policy related judgments. See Wood, 290 F.3d at 36 (citing Gaubert, 499 U.S. at 322, 111 S.Ct. 1267). It is not always clear when governmental conduct implicates public policy. While the Supreme Court has provided lower courts with some guidance in this area, the determination of whether governmental conduct is policy related still requires a case-by-case approach.³ Shansky, 164 F.3d at 693.

In this case, the Plaintiff essentially argues that the Postmaster's decision to place speed bumps in the travel lane at the Post Office implicates USPS' obligation as an occupier of land to act reasonably with respect to visitors who might come upon the land.⁴ In other words, while the USPS may have balanced financial and social concerns when deciding whether to install the speed bumps, these issues only related to the USPS as a landowner, and not as a government agency. In response, the United States contends that USPS' overall mission to "provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people" is broad enough to provide the Postmaster with policy-related reasons for installing speed bumps in the travel lane at the Post Office. 39 U.S.C. § 101(a).

Courts have held, however, that not all decisions made by the USPS implicate the type of policy decisions envisioned by the discretionary function exception. See Raymond v. United States, 923 F.Supp. 1419, 1423 (D.Kan.1996); ...