Mahon v. United States

• Decision Date: 08 June 2012
• Docket Number: Civil Action No. 10–11611–WGY.
• Citation: 865 F.Supp.2d 143
• Parties: Michael MAHON, Plaintiff, v. UNITED STATES of America; Eastern National; and Amelia Occasions, Inc. doing business as Historic Venues, doing business as The Commandant's House, Defendants.
• Court: U.S. District Court — District of Massachusetts

865 F.Supp.2d 143

Michael MAHON, Plaintiff,

v.UNITED STATES of America; Eastern National; and Amelia Occasions, Inc. doing business as Historic Venues, doing business as The Commandant's House, Defendants.

Civil Action No. 10–11611–WGY.

United States District Court, D. Massachusetts.

June 8, 2012.

Alan Seewald, Seewald, Jankowski & Spencer, P.C., Amherst, MA, Alan S. Zwiebel, Jonathan Fairbanks, Zwiebel & Fairbanks LLP, Kingston, NY, for Plaintiff.

Barbara Healy Smith, United States Attorney's Office, Curtis L.S. Carpenter, William J. Flanagan, Morrison, Mahoney, & Miller LLP, Boston, MA, John J. Lang, Lang & Associates, Lynnfield, MA, for Defendants.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I.INTRODUCTION

This is an action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671–2680.The plaintiffMichael Mahon(“Mahon”) alleges that the failure of the United States ¹ to alter a railing on the second story portico of the Commandant's House on the Charlestown Navy Yard resulted in Mahon falling over that railing and sustaining severe injuries.Mahon further alleges that in its dealings with Eastern National and Amelia Occasions, Inc.(“Amelia Occasions”), the United States was required to employ a so-called “concession contract,” which would have imposed on the United States a non-discretionary duty to establish a risk management plan.The lack of such a plan, Mahon asserts, allowed the railing's height to go unchecked.

The United States moves to dismiss Mahon's claim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.The United States argues that Mahon's claim is barred by the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a).The United States asserts that both the choice of what type of contract to use and whether to alter the railing were within the discretion of the United States.

A.Procedural Posture

On March 28, 2011, this Court dismissed a previous complaint by Mahon for lack of subject matter jurisdiction under the discretionary function exception of the Federal Tort Claims Act.Order Dismissal, ECF No. 18.Mahon later moved for reconsideration, alleging that the United States, through the Boston National Historic Park (the “Boston Park”), failed to establish a risk management plan that would have identified the problem related to the railing, and the failure to do so was not subject to Boston Park's discretion.Pl.'s Mot. Recons.Am. or Alter J. PursuantFRCP Rule 59(e) & ReliefJ. FRCP Rule 60(b)(1), 60(b)(2) & 60(b)(6), ECF No. 21.This Court granted the motion for reconsideration on April 12, 2011.Order, ECF No. 23.

After considering the parties' submissions, this Court vacated the March 28, 2011 Order of Dismissal and allowed the claim to move forward with discovery to determine whether the defendants' relationship was governed by a so-called “concession contract.”²Mahon v. United States,795 F.Supp.2d 149(D.Mass.2011)(“ Mahon I ”).In Mahon I, however, this Court left open the final determination of whether the guardrail height was within the policy discretion of the relevant government agency.Id. at 157.

The United States now moves again to dismiss the instant complaint for lack of subject matter jurisdiction or in the alternative, for summary judgment, asserting that the discretionary function exception bars Mahon's claim.Renewed Mot. U.S. Dismiss Claims or Summ. J., ECF No. 47;Mem. Supp. Renewed Mot. U.S. Dismiss Claims or Summ. J. (“Def.'s Mem.”) 6–7, ECF No. 48.

B.Facts as Alleged

Mahon was lawfully walking around the second story portico of the Commandant's House when he fell over the portico's railing and sustained “severe and permanent injuries.”Am. Compl. ¶ 43, ECF No. 12.Mahon asserts that the injuries were a result of “the dangerous and defective condition of the railing.”Id.Mahon claims damages of twenty million dollars.Id.¶ 47.

The United States, through the National Park Service (the “Park Service”), owns, operates, and controls the Commandant's House, which is a part of the Charlestown Navy Yard in Boston, Massachusetts.Id.¶¶ 17–33.The Commandant's House and the Charlestown Navy Yard are a part of the Boston Park.Id.¶ 17.

On March 22, 2005, the Boston Park entered into an agreement with Eastern National, a non-profit company, in order to provide “service to visitors and income to Boston.”Def.'sMem., Ex. 31, Mem. Agreement E. Nat'l & Bos. Nat'l Historic Park (“Eastern National Agreement”) 1, ECF No. 65.Eastern National, in turn, entered into an agreement with Amelia Occasions, a for-profit company, in order for Amelia Occasions to provide the services requested by the Boston Park.Def.'s Mem., Ex. 32, Agreement E. Nat'l & Amelia Occasions, Inc. (“Amelia Agreement”) 1, ECF No. 65.³

The then Chief of Interpretation, William Foley(“Foley”), was concerned that the agreement with Amelia Occasions should have been a “concession contract.”Def.'sMem. 6;Mem. Opp'n Def.'s Mot. Dismiss or Summ. J. (“Pl.'s Mem.”) 5, ECF No. 68.Several months before Mahon's accident, Foley apparently brought up his concerns with other park officials, but these officials disagreed with the need for a “concession contract.”Def.'sMem. 6;Pl.'sMem. 5.The purpose of creating the agreement with Amelia Occasions appears to be for profit rather than purely for the education of visitors.Def.'s Mem., Ex. 10, Email Correspondence between Chelsea Moroz and Terry Savage(Apr. 30, 2004), ECF No. 60.

The agreements between the Boston Park and Eastern National, as well as between Eastern National and Amelia Occasions, set out the divisions of gross income and the responsibilities of Eastern National and Amelia Occasions.Eastern National Agreement 1–3; Amelia Agreement 1–3.The Eastern National Agreement provides that Eastern National or its Operator (Amelia Occasions)“will be responsible for ensuring all catered events at the Facility comply with all applicable local, state, and federal laws, ordinances, health codes and standards.”Eastern National Agreement 2.A similar provision exists in the Amelia Agreement, placing the responsibility on Amelia Occasions.Amelia Agreement 2.

Sometime in November 2008,⁴ the Park Service issued a request to renovate and repair the Commandant's House.Pl.'s Mem. 6;Pl.'s Mem., Ex. 6, Charlestown Navy Yard Bos. Nat'l Historical Park, Repaint Commandant's House Exterior, Specifications (2008), ECFNo. 68–4.The contractor hired to perform the work informed the Park Service that the railing in question did not comply with Massachusetts building codes, and thus the contractor refused to work unless it was absolved of any responsibility for injuries that might arise out of the railing.Pl.'s Mem. 6;Pl.'s Mem., Ex. 7, Email from Marc Green, Estimator, Custom Copper and Slate Ltd., to Mattie Walker (Mar. 30, 2010, 10:29 EST), ECFNo. 68–4.

II.ANALYSISA.Motion to Dismiss a Federal Tort Claims Action

This is a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.Thus, while this Court should accept the plaintiff's well-pled factual allegations as true and draw all reasonable inferences in favor of the plaintiff, it should also consider evidentiary materials such as depositions, exhibits, and affidavits.Aversa v. United States,99 F.3d 1200, 1209–10(1st Cir.1996).

B.Discretionary Function Exception Under the Federal Tort Claims Act

The Federal Tort Claims Act (“FTCA”)“provides a ‘carefully limited waiver’ of the federal government's sovereign immunity for certain claims alleging harm caused by United States employees or agents.”Carroll v. United States,661 F.3d 87, 93(1st Cir.2011)(quotingBolduc v. United States,402 F.3d 50, 62(1st Cir.2005)).Where the FTCA does not waive immunity for specific torts, the federal courts lack subject matter jurisdiction.Id. at 93(citations omitted).

Among other limitations, the FTCA bars claims “based upon the exercise or performance or the 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 involved be abused.”28 U.S.C. § 2680(a).This provision is known as the discretionary function exception.See, e.g., United States v. Gaubert,499 U.S. 315, 319, 111 S.Ct. 1267, 113 L.Ed.2d 335(1991).The Supreme Court has promulgated a two-part test to determine when the discretionary function exception applies: first, whether the act had an element of choice so that no federal statute, rule, or regulation specifically prescribes how the agency must act; second, whether the act in question is based on public policy considerations or “susceptible to policy analysis.”Id. at 324–25, 111 S.Ct. 1267.The discretionary function exception is designed to prevent “judicial second guessing” of agency decisions based on social or economic policy.Berkovitz v. United States,486 U.S. 531, 536–37, 108 S.Ct. 1954, 100 L.Ed.2d 531(1988).

A court determining whether the discretionary function applies does not need to determine whether the agency actually discussed the potential decision, but rather whether such a decision prescinds from a policy-based analysis.Shansky v. United States,164 F.3d 688, 692(1st Cir.1999).There is no “requirement that the government, as a prerequisite to invoking the discretionary function exception, demonstrate that a policy judgment was actually made.The discretionary function exception applies to all acts and omissions that are susceptible to policy analysis, whether or not that analysis has been performed on a given occasion.”Fothergill v. United States,566 F.3d 248, 253(1st Cir.2009).

C.Safety Management Plans and the Discretionary Function Exception

The 2006 Management Policies for the Park Service (the “Management Policies”) set forth mandates for parks to carry out, and state that the specific means of achieving the mandate lie within the discretion of...