Quigley v. United States

• Decision Date: 10 September 2012
• Docket Number: Civil Action No. DKC 11–3223.
• Citation: 927 F.Supp.2d 213
• Parties: Lynne C. QUIGLEY, et al. v. UNITED STATES of America, et al.
• Court: U.S. District Court — District of Maryland

927 F.Supp.2d 213

Lynne C. QUIGLEY, et al.

v.UNITED STATES of America, et al.

Civil Action No. DKC 11–3223.

United States District Court, D. Maryland.

Sept. 10, 2012.

Robert G. McGinley, Law Offices of Robert G. McGinley PC, Bowie, MD, Mark Andrew Towery, Blankingship and Keith PC, Fairfax, VA, Stephen Allen Markey, III, Law Offices of Stephen A. Markey III PC, Jeffrey D. Raden, Thomas Kiernan Weaver, Law Offices of Jeffrey D. Raden LLC, Amy M. Orsi, Law Offices of Stephen A. Markey III PC, Towson, MD, for Plaintiffs.

Alex S. Gordon, Office of the United States Attorney, Baltimore, MD, Russel Lee Beers, Washington Suburban Sanitary Commission, Laurel, MD, Paul F. Leonard, Jr., Rockville, MD, Michael T.O. Bryant, Lipshultz and Hone Chtd, Silver Spring, MD, Michael Robert Acker, Paul Adam Turkheimer, Meyers Rodbell and Rosenbaum PA, Riverdale, MD, for Defendants.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for review in this consolidated tort action is the motion to dismiss or, in the alternative, for summary judgment filed by Defendant the United States of America (“United States” or “the Government”) (ECF No. 42), as well as two motions for leave to file a surreply filed, respectively, by Defendant Montgomery County (“the County”) and Plaintiffs Lynne C. Quigley, Miles C. Quigley, the estate of Joseph Quigley, Adriana Ochoa, and Pollyana Barbosa (ECF Nos. 78, 79). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the Government's motion will be granted in part and denied in part, and both motions for leave to file a surreply will be denied.

I. Background

Three cases are consolidated in this action: Quigley v. United States, No. DKC 11–3223; Ochoa v. United States, No. DKC 11–3224; and Barbosa v. United States, No. DKC 11–3225. The following allegations are taken from the amended complaint (ECF No. 44), unless otherwise indicated.

A. Factual Background

At some point during the overnight hours of January 19, 2009, a water main maintained by Defendant Washington Suburban Sanitary Commission (“WSSC”) burst under Ridge Drive near the intersection of 64th Street in the Bethesda area of Montgomery County, Maryland. After the main ruptured, WSSC increased the water pressure, which amplified the flow of water.¹ Water from the main escaped into the street, where it collected and flowed into a storm drain at the intersection of Ridge Drive and 64th Street. Due to a breach in the storm drain, the water made its way down a hillside and across a drainage ditch onto the adjacent Clara Barton Parkway (“the Parkway”), a limited access urban freeway maintained by the Government through its Department of the Interior and National Park Service (“NPS”).

On January 20, 2009, the temperature in the vicinity was below freezing. As a result, the water from the burst main that had collected on the Parkway froze into ice. The ice covered both westbound lanes of the Parkway for approximately 200 yards. There was no appreciable rain, sleet, snow, or other precipitation in the area.

Around 5:24 a.m. that day, decedent Joseph Quigley was driving eastbound on the Parkway. At about the same time, Defendant Marcelo Pepe was driving westbound. Ms. Ochoa and Ms. Barbosa were passengers in Mr. Pepe's vehicle. (ECF No. 21, at 3; ECF No. 26, at 3). Mr. Pepe encountered the ice caused by the burst main, lost control of his vehicle, crossed the median into the eastbound lanes, and collided with Joseph Quigley's vehicle. Joseph Quigley sustained injuries from which he eventually died. In Mr. Pepe's vehicle, Ms. Ochoa sustained injuries. (ECF No. 21 ¶ 32). Ms. Barbosa, who was originally in the back seat, was ejected from the vehicle and landed on top of the burning exhaust system of the vehicle, all of which caused injuries and first-, second-, and third-degree burns. (ECF No. 26 ¶¶ 32, 35).

B. Procedural Background

On November 10, 2011, Lynne C. Quigley and Miles C. Quigley, individually and as personal representatives of the estate of Joseph Quigley (“the Quigley Plaintiffs”), brought a wrongful death and survival action against Defendants in this court. (ECF No. 1).² At about the same time, Ms. Ochoa and Ms. Barbosa also filed complaints asserting identical causes of action. (ECF Nos. 21, 26). The County answered all three complaints separately. (ECF Nos. 14, 23, 28). Mr. Pepe filed one omnibus answer. (ECF No. 39).³

The three cases were consolidated for all purposes by court order on January 4, 2012. (ECF No. 20). The court then granted the Quigley Plaintiffs' consent motion for leave to file an amended complaint. (ECF No. 43). The amended complaint contains seven counts: (1) strict liability against WSSC; (2) negligence against WSSC and a Doe Defendant employee of WSSC; (3) strict liability against the County; (4) negligence against the County and a Doe Defendant employee of the County; ⁴ (5) negligence against the United States; (6) negligence against Mr. Pepe; and (7) liability of United Services Automobile Associated Casualty Insurance Co. (“USAA”). (ECF No. 44). ⁵ USAA answered the amended complaint on March 28, 2012. (ECF No. 54).

On February 24, 2012, the Government filed a motion to dismiss or, in the alternative, for summary judgment. (ECF No. 42). All Plaintiffs opposed the Government's motion.⁶ (ECF Nos. 59, 60, 62). Additionally, the County filed a response to the motion. (ECF No. 58). On July 13, 2012, the Government replied. (ECF No. 75).⁷

II. Federal Tort Claims Act (“FTCA”)

The FTCA provides a limited waiver of the sovereign immunity of the United States with respect to certain types of tort actions. See28 U.S.C. §§ 1346(b), 2674. Under the FTCA, the United States is liable, as a private person, for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting under the scope of his office or employment.” Id. § 1346(b). As a waiver of sovereign immunity, the FTCA is to be narrowly construed and is not to be extended by implication. See United States v. Nordic Vill., Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); see also Gould v. U.S. Dep't of Health & Human Servs., 905 F.2d 738, 741 (4th Cir.1990) (“This waiver permits suit only on terms and conditions strictly prescribed by Congress.”). The potential liability of the United States under the FTCA is “qualified by a number of exceptions.” Holbrook v. United States, 673 F.3d 341, 345 (4th Cir.2012).

The Government argues that the discretionary function exception to the FTCA's waiver of sovereign immunity set forth in 28 U.S.C. § 2680(a) presents a jurisdictional bar to Plaintiffs' claims. ( See ECF No. 42–1, at 8). The party bringing suit in federal court bears the burden of proving that subject-matter jurisdiction properly exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). In a Federal Rule of Civil Procedure 12(b)(1) motion, the court “may consider evidence outside the pleadings” to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991); see also Evans, 166 F.3d at 647. The court should grant a Rule 12(b)(1) motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768.

“The discretionary function exception ‘marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.’ ” Id. (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)).⁸ Under the exception, the United States may not be held liable for “[a]ny claim ... 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). Plaintiffs bear the burden of showing that the discretionary function exception does not apply. See Indem. Ins. Co. v. United States, 569 F.3d 175, 180 (4th Cir.2009). “If the discretionary function exception does apply, the district court must dismiss the affected claims for lack of subject matter jurisdiction.” Id.

Determining whether an act is discretionary under the FTCA may involve a two-step process. First, conduct by a federal employee falls within the discretionary function exception when it “ ‘involves an element of judgment or choice.’ ” Holbrook, 673 F.3d at 345 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). “ ‘[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow’ because ‘the employee has no rightful option but to adhere to the directive.’ ” Indem. Ins. Co., 569 F.3d at 180 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). Second, “even if ‘the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield,’ that is, decisions ‘grounded in social, economic, and political policy.’ ” Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201, 208 (4th Cir.2002) (quoting Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954). In considering this step, the court does not focus on “the agent's subjective intent in exercising the discretion, but on the nature of the actions taken and on whether they are susceptible to policy analysis.” United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). In...