Lingua v. United States

• Decision Date: 22 July 2011
• Docket Number: No. 3:10–CV–826.,3:10–CV–826.
• Citation: 801 F.Supp.2d 320
• Parties: Nina LINGUA, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

801 F.Supp.2d 320

Nina LINGUA, Plaintiff,

v.UNITED STATES of America, Defendant.

No. 3:10–CV–826.

United States District Court, M.D. Pennsylvania.

July 22, 2011.

Howard A. Rothenberg, Herlands Rothenberg & Levine, Scranton, PA, for Plaintiff.

J. Justin Blewitt, Jr., Assistant U.S. Attorney, Scranton, PA, for Defendant.

MEMORANDUM

RICHARD P. CONABOY, District Judge.

Pending before the Court is Defendant's Motion to Dismiss or in the Alternative for Summary Judgment (Doc. 25). This personal injury action arises under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., concerning an incident that took place on Sunday, July 5, 2009, at the George W. Childs Recreation Area which is part of the Delaware Water Gap National Recreation Area (“Recreation Area”) (Doc. 1). Plaintiff, Nina Lingua, filed this action on April 19, 2010. ( Id.)

On June 13, 2011, Defendant, the United States of America, filed the present motion (Doc. 25), supporting brief (Doc. 26), and statement of material facts (Doc. 27), seeking dismissal of this action on the ground that it is barred by the discretionary function exception to the FTCA, and moving for summary judgment based on the applicability of the “Pennsylvania Recreation Use of Land and Water Act”, 68 P.S. § 477–1, et seq. (“RULWA”).

On June 22, 2011, Plaintiff filed her counter-statement of material facts (Doc. 29) and brief in opposition (Doc. 30). On July 12, 2011, the Government filed its reply brief (Doc. 31). Accordingly, this matter is ripe for disposition. For the reasons discussed below, we will grant Defendant's motion (Doc. 25).

I. BACKGROUND

This personal injury action arises under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. (Doc. 30 at 1.) It concerns an incident which took place on Sunday, July 5, 2009, at the George W. Childs Recreation Area which is part of the Delaware Water Gap National Recreation Area (“Recreation Area”). ( Id.) Plaintiff alleges that she sustained injuries on that date as the result of a fall which she attributes to negligence on the part of the United States. (Doc. 26 at 2.) Plaintiff acknowledges that she was a visitor at the Recreation Area and was there to picnic and take nature photographs. ( Id. at 3.)

In her Complaint (Doc. 1), Plaintiff alleges that while an invitee on the premises, she utilized the restrooms located at one of the parking lot areas of the Recreation Area and upon exiting the restrooms she walked across the parking lot where she came upon a set of steps leading down to a “man-made path.” (Doc. 30 at 1.) Plaintiff testified in her deposition that she made a right hand turn, descended the stairway which consisted of five (5) wooden man-made steps with handrail, and began to walk down a man-made path to a picnic area where her friends were already located. ( Id. at 1–2.) According to Plaintiff, “as she walked down this man-made path she was caused to come into contact with exposed tree roots which were exposed above the ground and as a result of same, she was caused to be violently thrown to the ground striking her left wrist on rocks which were located on the path and causing her to sustained [sic] a severely comminuted fracture of her left wrist which ultimately required surgery.” (Doc. 30 at 2.)

In its brief (Doc. 26) and statement of material facts (Doc. 27), Defendant provided additional background that Plaintiff testified to at her deposition. ¹ Defendant notes that on the date of her fall, Plaintiff was sixty years old, and was accompanied by a group of friends who drove to the Recreation Area and arrived in two vehicles. (Doc. 26 at 3.) Plaintiff estimates she arrived at the Recreation Area between 11:00 a.m. and 12:00 p.m. and the accident happened within an hour after they arrived. ( Id.)

Plaintiff did not pay any fee to go to the picnic area or to enter the Recreation area. ( Id.) The purpose of Plaintiff's visit was to picnic and do nature photography. ( Id.) At some time after her arrival, she had gone to a restroom facility in the parking lot where their cars were parked. ( Id.) When she left the restroom, she was walking toward the picnic table where some of her friends had gathered. ( Id.) As she was walking toward the picnic tables she had a camera in her hand. ( Id.)

The place where Plaintiff fell was on the path between the restroom and the picnic area where her friends were setting up for their picnic. ( Id.)

According to Plaintiff, she saw her friends in the distance at the picnic table immediately before she started to fall. ( Id.) As Plaintiff was returning from the restroom, there was nothing to keep her from seeing where she was walking. ( Id.) She was able to see her friends who were gathered around the table as she was approaching them. ( Id.) At that point, she was looking at them. As she described the accident, “I simply tripped; and when I was falling I observed my friends who were situated by the table”. ( Id.)

Plaintiff had been to the Recreation Area once a year for the prior four years and she had walked along the same path on which she fell on prior visits to the Recreation Area. ( Id. at 3–4.) She was aware of the general condition of the trail on which she fell prior to the fall. ( Id. at 4.) She described the area where she fell as a trail. ( Id.)

Plaintiff fractured her arm in the fall and surgery was subsequently performed on her left wrist. ( Id.)

The trail on which Plaintiff fell was a natural earth path which was not cemented, black-topped, bricked or made with any sort of construction material. ( Id.) There were trees around the trail and grass on both sides of the trail. ( Id.)

II. DISCUSSION

Defendant moves to dismiss this action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction on the grounds that this action is barred by the discretionary function exception to the Federal Tort Claims Act. (Docs. 25, 26.) Defendant argues the FTCA provides a limited waiver of sovereign immunity but the waiver does not apply to any claim based on the performance of, or the failure to perform, “a discretionary function or duty on the part of a Federal agency or employee of the government.” ( Id. at 1–2 (citing 28 U.S.C. § 2680(a)).) Defendant contends the decision whether to pave or otherwise use construction material on the trails in National Parks is a decision that is placed within the discretion of the National Park Service. (Doc. 26 at 2.) Defendant argues that because the applicable statutes and policies allow the Park Service to exercise discretion in making those decisions and because the decisions can be analyzed in terms of the public policies concerning the Park Service, the alleged failure to maintain the nature trail is not actionable under the FTCA. ( Id.) Defendant argues that it is expressly excluded from the scope of the FTCA by the discretionary function exception. ( Id.)

In addition, Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure based on the applicability of the “Pennsylvania Recreation Use of Land and Water Act,” 68 P.S. § 477–1 et seq. (“RULWA”). ( Id.)

In opposition, Plaintiff argues the distinguishing factor in the issues raised by Defendant's motion is whether or not the area where Plaintiff's fall occurred was a “man-made path” therefore constituting an “improvement to land,” or a “natural trail,” therefore raising the immunity of the FTCA discretionary exception and RULWA. (Doc. 30 at 17.) Plaintiff argues because her injury occurred on a “man-made path” constituting an “improvement to land” Defendant is not immune under these statutes. ( Id.)

Plaintiff asserts that her theories of negligence fall into five specific categories:

(1) Failure to properly design the man-made path which Plaintiff was walking on when she tripped and fell.

(2) Failing to maintain the man-made path that Plaintiff was walking on when she tripped and fell.

(3) Failure to warn Plaintiff of the dangers, i.e. the exposed tree roots, on the man-made path that she was walking on when she tripped and fell.

(4) Failure to follow appropriate safety procedures regarding the man-made path.

(5) Negligent construction of the area, more particularly the steps and man-made path.

(Doc. 30 at 5.)

Plaintiff argues that each of these theories is specifically recognized by appropriate case law as an “operational level” act as opposed to a “policy-making level” act, and therefore, do not fall within the discretionary exception to the FTCA. ( Id.)

With regard to Defendant's argument under RULWA, Plaintiff argues that statute is not applicable in situations where the injuries are a result of improvements to land which have gone unmaintained or have not been subject to regular maintenance. ( Id. at 15–18.) Plaintiff argues that the trail where Plaintiff's fall occurred was clearly an “improvement of land” made by Defendant, and therefore RULWA does not apply. ( Id.)

We will address each aspect of Defendant's motion in turn (Doc. 25).

A. FTCA

Under the FTCA, the United States has waived sovereign immunity in limited circumstances for claims for money damages against the United States for injury or loss of property caused by the negligent or wrongful act or omission of a federal employee. 28 U.S.C. § 2671, et seq. Because sovereign immunity can only be waived by the sovereignty, the circumstances of its waiver must be observed scrupulously, and not expanded by the courts. Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.1994).

One of the important limitations on the FTCA's waiver of sovereign immunity is the discretionary function exception, codified at 28 U.S.C. § 2680(a). There Congress provided that the provisions of the FTCA shall not apply to:

[a]ny claim ... based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion...