Southern Club Enters., Inc. v. United States

• Decision Date: 21 August 2012
• Docket Number: Case No. 6:11-6013
• Parties: SOUTHERN CLUB ENTERPRISES, INC. and 250 CENTRAL AVENUE, LLC PLAINTIFFS v. UNITED STATES OF AMERICA DEFENDANT
• Court: U.S. District Court — Western District of Arkansas

SOUTHERN CLUB ENTERPRISES, INC. and 250 CENTRAL AVENUE, LLC PLAINTIFFS
v.
UNITED STATES OF AMERICA DEFENDANT

Case No. 6:11-6013

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION

Dated: August 21, 2012

MEMORANDUM OPINION AND ORDER

This matter is before the Court for decision following a two-day trial to the Court beginning on May 22, 2012, in Hot Springs. Also before the court are the parties' post-trial briefs. (Docs. 23, 25). Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court enters the following Findings of Fact and Conclusions of Law, based upon consideration of the admissible evidence and the Court's assessment of the credibility of the trial witnesses.

Findings of Fact

During the trial, the following facts were established by a preponderance of the evidence:

1. Plaintiffs are domestic entities of the state of Arkansas which own and operate the Josephine Tussaud Wax Museum located on Central Avenue in Hot Springs, Arkansas. The Wax Museum is

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adjacent to West Mountain, which is in the Hot Springs National Park.

2. West Mountain is steep and rugged, and has an underground storm drain system consisting of culverts with intermittent intakes, which are also known as clean-out boxes or inverts. Defendant, acting through the United States Department of the Interior and the National Park Service, owns and maintains the surface water collection system, which is designed to transport water down the mountain and into the drainage system of the City of Hot Springs.

3. One of the culverts, an 18 inch underground tube, is located immediately behind and steeply uphill from the Wax Museum. The culvert is designed to send water into Hot Springs Creek at or near Central Avenue. This particular culvert has four manholes or inverts which allow surface access to the underground culvert for maintenance.

4. At some point prior to May 5, 2009, soil and natural debris accumulated in the underground culvert near the final, or lowest, manhole. The accumulation fully obstructed the culvert, completely blocking the exit of water at the termination of the culvert near Central Avenue.

5. On May 5 and 6, 2009, the Hot Springs area experienced rainfall ranging from .07 inches to 3.84 inches during a 24-hour period.

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6. During the May 5-6 rain event, water which entered the system backed up, lifting the cover off the next uphill manhole. The water then exited the system, but uphill of the designed location. The manhole where the water exited the system was immediately uphill from the Wax Museum. All the water that entered the culvert exited the system through the manhole uphill from the Wax Museum, instead of the designed exit, and poured downhill directly into the Wax Museum.

7. Water ran into the Wax Museum for approximately nine hours, causing damage to real and personal property.

8. Upon being advised of the flooding occurring at the Wax Museum, on the early morning of May 6, 2009, Park employees went to the area on West Mountain above the Wax Museum. They discovered that one of the clean-out boxes in the storm drain system was clogged due to debris, and water was exiting the system from the top of the clean-out box.

9. National Park Service personnel called City of Hot Springs personnel to use their equipment to "flush" the system. Once the system was flushed the clogged material was pushed through the system, and the water began properly flowing through the drainage system and no longer exiting out the top of the clean-out box.

10. Defendant owned and occupied land immediately adjacent to Plaintiffs' land.

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11. Plaintiffs submitted an administrative claim in the amount of $625,419.84.

Discussion

1. Federal Tort Claims Act

The United States "can be sued only to the extent that it has waived its immunity." United States v. Orleans, 425 U.S. 807, 814 (1976). The Federal Tort Claims Act ("FTCA") waives the federal government's immunity from suit for a discrete class of lawsuits. 28 U.S.C. §§ 2671-80 (2005). This waiver, however, is limited by the discretionary function exception, precluding "[a]ny claim based upon an act or omission of an employee of the Government ... based upon ... a discretionary function or duty." 28 U.S.C. § 2680(a). The Supreme Court has established a two-part test for application of the discretionary function exception. See Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).

First, courts inquire as to whether the challenged action was discretionary, as opposed to being governed by mandatory statute, policy, or regulation. Whisnant v. United States, 400 F.3d 1177, 1180-81 (9th Cir. 2005) (summarizing Berkovitz test). Second, if the court finds the action to have been discretionary, it then determines whether the action involved "a decision susceptible to social, economic, or political policy analysis." Id. at 1181; see also O'Toole v. United States, 295

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F.3d 1029, 1033-34 (9th Cir. 2002). If the challenged action was both discretionary and policy driven, the discretionary function exception bars FTCA claims.

The parties disagree as to the existence of a mandatory policy regarding maintenance of the culvert system on West Mountain. At trial, Plaintiffs submitted into evidence four documents entitled "Job Plan Operation Detail". These documents are a part of the Defendant's Facility Management Software System. Each reflects a job plan and the frequency, description, duration, labor, materials and tools necessary for that particular job.

• Job Plan 42598--Internal Cleaning and Monitoring Culverts Monthly--clear debris from entrance and exit of culverts; internal cleaning with flushing machine, if needed; inside inspection with use of camera, If needed; note damages. (Plaintiffs' Ex. 3).
• Job Plan 42 603--Inspect Road for Debris Weekly--clear debris (fallen rocks, trees or limbs) from roadway; clear debris from gutters; visually inspect drop inlets for debris; note damages. (Plaintiffs' Ex. 4).
• Job Plan 19306--Internal Cleaning and Monitoring Culverts--clear debris from entrance and exit of culverts; internal cleaning with flushing machine; inside inspection with use of camera; note damages. (Plaintiffs' Ex. 5).
• Job Plan 1195--CA Roads Inspection¹ --storm sewer piping (this includes installation of piping for collection of storm water); storm sewer manholes (this includes construction, maintenance and installation of manholes for storm water collection systems); culverts (this includes construction, maintenance and installation of culverts for storm water systems); headwalls and catch basins (this includes construction/maintenance of headwalls and

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installation/maintenance of catch basins for storm water systems). (Plaintiffs' Ex. 6).

The first two Job Plans appear to dictate that the Park maintenance staff is required to inspect and clear debris on a monthly basis. Hot Springs National Park Superintendent Mardi Arce testified that she is responsible for maintaining the day to day operations of the park and directly supervises the Park's five division chiefs. (Trial Transcript P. 287, Line 10-15). On May 6, 2009, Ms. Arce was in charge of the Park's response to the flooding event at the Wax Museum. Ms. Arce testified that she produced the above Job Plans in response to the Plaintiffs' request for the production of "any and all writings of any kind which specifically or in any manner set out any maintenance practice and procedures of the storm drain system and inverts which are the subject of this litigation." (Trial Transcript P. 298-299). Ms. Arce testified that these policies were not in effect on May 6, 2009. (Trial Transcript P. 301, Line 23).

The evidence reflects that at the time of the flooding event at the Wax Museum, no policy existed for regular maintenance of the Park's storm water system, other than as part of the yearly condition assessment of the Park. Since the Park's course of conduct is not mandated by statute, regulation or its own policy, Defendant would have to demonstrate that the government actions at issue are of the nature and quality that

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Congress intended to shield from tort liability. However, Plaintiffs' lawsuit involves a mundane question of routine ditch maintenance. The Eighth Circuit has consistently held that the FTCA applies to decisions by federal agencies at the "operational" level, but that decisions on the "policy or planning" level are exempt. E. Ritter & Company v. Department of the Army, Corps of Engineers, 874 F.2d 1236, 1241 (8th Cir. 1989)(citing In re Estate of Gleason v. United States, 857 F.2d 1208, 1209 (8th Cir. 1988)(finding that the Corps had a responsibility of maintaining the Riverdale Outlet Ditch, as designed and constructed; proper maintenance of the ditch would have prevented erosion). This is not a decision grounded in social, economic or political policies, and as such it is not the sort of public policy issue that the discretionary function exception is designed to protect. See O'Toole v. United States of America, 195 F.3d 1029 (9th Cir. 2002)(reversing district court's dismissal for lack of jurisdiction where Bureau...