Larue v. Nat'L Park Serv. of the Dep't of the Interior

• Decision Date: 12 May 2011
• Docket Number: CIVIL ACTION NO. B-09-139
• Parties: DONNA LaRUE, Plaintiff, v. NATIONAL PARK SERVICE OF THE DEPARTMENT OF THE INTERIOR, Defendant.
• Court: U.S. District Court — Southern District of Texas

DONNA LaRUE, Plaintiff, v. NATIONAL PARK SERVICE OF THE DEPARTMENT OF THE INTERIOR, Defendant.

CIVIL ACTION NO. B-09-139

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION

DONE: May 12, 2011

MEMORANDUM OPINION AND ORDER

BE IT REMEMBERED, that on May 12, 2011, the Court considered Defendant National Park Service of the Department of the Interior's ("National Park Service") Motion to Dismiss, Dkt. No. 26; the responses and replies to that motion, Dkt. Nos. 27-30, 33, 36; and the attached exhibits. After considering the record as a whole, the Court concludes that the discretionary function exception to the Federal Tort Claims Act's waiver of sovereign immunity, 28 U.S.C. § 2860(a), bars Plaintiffs premises liability claims and dismisses those claims for lack of subject-matter jurisdiction. The Court finds that it has subject-matter jurisdiction over Plaintiff's claims that a federal employee negligently directed her downrange of an 1841 cannon during an interactive demonstration and that the employee failed to warn her of a hazard over which she eventually tripped as she backed away from the cannon.

I. Background

On June 23, 1992, Congress established the Palo Alto Battlefield National Historical Park ("Palo Alto Park") in South Texas. The Palo Alto Battlefield National Historical Park Act of 1991, Pub.L. 102-304 § 3, 106 Stat. 256 (1992); 16 U.S.C.A. § 410nnn-l (a) (2011). Congress established the Palo Alto Park "[i]n order to preserve for the education, benefit, and inspiration of present and futuregenerations the nationally significant site of the first battle of the Mexican-American War, and to provide for its interpretation in such manner as to portray the battle and the Mexican-American War and its related political, diplomatic, military and social causes and consequences...." 16 U.S.C.A. § 410nnn-l(a) (2011). Congress directed the Secretary of the Interior to

manage the historical park in accordance with... the National Park System, including the Act of August 25, 1916 (39 Stat. 535; 16 U.S.C. 1 et seq.), and the Act of August 21, 1935 (49 Stat. 666)... [and to] protect, manage, and administer the historical park for the purposes of preserving and interpreting the cultural and natural resources of the historical park and providing for the public understanding and appreciation of the historical park in such a manner as to perpetuate these qualities and values for future generations.

16 U.S.C. § 410nnn-2 (2011).

According to undisputed evidence in the record, the Palo Alto Park acquired an authentic 1841 six-pounder cannon for use in living history demonstrations in 2007. See Dkt. No. 26 Ex. 2 8:25-9:3. Palo Alto Park conducts living history demonstrations involving this cannon on the first Saturday of each month. See id. Volunteer historic reenactors apparently participate in these demonstrations. Under the supervision of a historic weapons safety supervisor such as Rolando Garza ("Garza"), whose deposition testimony is part of the record in this case, the cannon is sometimes fired during these demonstrations.¹ See Dkt. No. 26 at 3. Pertinent to this litigation, Garza testified that, during the firing process, an iron bucket approximately the size of a one-gallon paint can is placed downrange of the muzzle in line with or slightly inside of the cannon's right wheel as one faces downrange. See Garza Dep. at 29:6-16; 27:21-28:1. During the firing process, a cannoneer dips a sponge rammer - a long rod with a sponge affixed to one end and atamper affixed to the other - in the bucket, rings out the sponge, and uses it to clean the interior of the cannon's barrel. See id. at 27:14-18, 11:13-12:2. Plaintiff Donna LaRue ("LaRue") brought this negligence action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680, in connection with injuries she allegedly sustained while participating in one of these living history demonstrations involving the cannon at the Palo Alto Park on January 5, 2008. See Am. Compl. ¶ 3, Aug. 17, 2009, Dkt. No. 8. According to her Amended Complaint, LaRue fell backwards over the iron bucket and broke her hip after being called out of a crowd by agents of the National Park Service to participate in the cannon demonstration by playing the part of the cannoneer using the sponge rammer. See id. ¶¶ 3-4. LaRue named the United States of America and the National Park Service of the Department of the Interior as defendants.² See id. at 1. She pleads the following theories of negligence in her Amended Complaint:

Liability in this case is based on the negligence of the agents, servants, employees and representatives of the Defendant, the United States of America and its National Park Service of the Department of the Interior in the course and scope of their agency, service, employment and representation in connection with calling Plaintiff, Donna LaRue, out of a crowd at a reenactment of a cannon firing to swab a cannon in one or more of the following regards, among others, which proximately resulted in Plaintiffs fall in which she was injured and damaged on January 5, 2008 by falling backwards over a bucket:

a. Creating an unreasonably dangerous condition by the contemporaneous activity of placing a bucket behind her after she was in a position by the contemporaneous activity of placing a bucket behind her after she was in position [sic] by the cannon.

b. Failing to make safe the unreasonably dangerous condition by moving the bucket, guarding the bucket, or otherwise, [sic]c. Failing to warn her of the unreasonably dangerous condition caused by the bucket, placed behind her without her knowledge and/or

d. Failing to discover that the bucket placed behind her constituted an unreasonably dangerous condition before she fell over it.

Id. ¶ 3.

In her deposition, LaRue testified that she volunteered to participate in the cannon demonstration. Dkt. No. 27 Ex. 4 23:9-10. Wade Marcum ("Marcum"), a volunteer historical reenactor who was apparently garbed in a period uniform,³stood near her and explained her role. See id. at 25:6-19. When LaRue attempted to sponge out the cannon, the sponge separated from the rod and remained in the cannon's barrel. Id. at 28:8-12. LaRue testified that Marcum gestured towards her in a way that she interpreted as signaling her to back away from, and apparently downrange of, the cannon. Id. at 28:24-25. LaRue alleges that she tripped over the bucket as she was backing away. See id.

The scheduling order set November 23, 2010, as the deadline for the parties to complete discovery. Dkt. No. 15 at 1. On January 10, 2011, the National Park Service filed the pending motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Mot. to Dismiss, Dkt. No. 26. The National Park Service argues that the FTCA's discretionary function exception applies to the decision of National Park Service Personnel to place the bucket over which LaRue tripped because the bucket's location was selected for historical accuracy. See id. LaRue responds that her claims that Marcum negligently directed her towards the bucket and failed to warn her of the bucket as she approached it do not fall within the discretionary function exception. See Dkt. No. 27 at 2.

II. Discussion

Under the familiar sovereign immunity doctrine, "the United States, as sovereign, is immune from suits save as it consents to be sued." Peacock v. United States, 597 F.3d 654, 659 (5th Cir. 2010) (quoting Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998)) (alterations deleted). By passing the FTCA, "Congress has waived sovereign immunity and has granted consent for the [G]overnment to be sued for acts committed by any 'employee of the Government while acting within the scope of his office or employment.'" Id. (quoting ultimately 28 U.S.C. § 1346(b)). Congress delineated several exceptions to the FTCA's waiver of sovereign immunity. See 28 U.S.C. § 2860; Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010). The discretionary function exception found in 28 U.S.C. § 2860(a) "withdraws the FTCA's waiver of sovereign immunity in situations in which, although a government employee's conduct may have been actionable under state tort law, those actions were required by, or were within the discretion committed to, that employee under federal statute, regulation, or policy."⁴ Id. (citing United States v. Gaubert, 499 U.S. 315, 322 (1991)). In its motion to dismiss, the Government argues that LaRue's claims fall within the discretionary function exception because they challenge a decision of the National Parks Service concerning the appropriate location of a bucket in a historically-accurate cannon demonstration See Mot. to Dismiss 1. The Court also raises on its own motion its subject-matter jurisdiction over LaRue's FTCA claim against the National Park Service.

A. Proper Defendant

This Court must dismiss LaRue's FTCA claims against Defendant National Park Service of the Department of the Interior because "federal trial and appellate courts have the duty to examine the basis for their subject matter jurisdiction, doing so on their own motion if necessary." Lewis v. Hunt, 492 F.3d 565, 568 (5th Cir. 2007) (quoting Torres v. S. Peru Copper Corp., 113 F.3d 540, 542 (5th Cir. 1997) and Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 333 n.8 (5th Cir. 2002)). The plaintiff in Galvin v. Occupational Safety & Health Admin., 860 F.2d 181 (5th Cir. 1988), brought an FTCA action against one defendant: the Occupational Safety and Health Administration (OSHA). Because "the courts have consistently held that an agency or government employee cannot be sued co nomine under the Federal Tort Claims Act." The Galvin court held that the district court should have dismissed the case on its motion for lack of subject-matter jurisdiction. Id. at 182 (citations omitted). The Galvin court explained:

It is beyond dispute that the United States, and not the

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