Stepanian v. United States
| Decision Date | 10 January 2017 |
| Docket Number | 15 CV 3727 (SJ) (JO) |
| Parties | SAIAT STEPANIAN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
NICHOLAS W. KOWALCHYN
8010 13th Ave.
Brooklyn, NY 11228
Attorney for Plaintiff
ROBERT L. CAPERS
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
By: Seth Eichenholtz
Matthew Silverman
INTRODUCTION
Saiat Stepanian ("Plaintiff") filed this lawsuit on June 25, 2015 under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq. Plaintiff claims that on or about June 27, 2013, the Gateway National Recreation Area ("GNRA") maintained a dangerous and unsafe condition on its roadways, consisting of unmarked, unilluminated and unsigned roadway barriers. (See Complaint ¶ 6.) The GNRA is owned and operated by the National Parks Service ("NPS"), a division of the Department of the Interior. (See Complaint ¶¶ 3-5; Answer to Complaint ¶¶ 3-5.) Plaintiff alleges that while he was riding his motorcycle within the GNRA, he collided with roadway barriers and sustained serious and permanent injuries. (See Complaint ¶ 7.) He seeks damages in the amount of $2 million.
The parties moved to bifurcate the liability and damages portions of the case. (See Docket Numbers ("Dkt. Nos.") 16, 20; Minute Entry dated 4/8/2016.) At the bench trial held on October 6, 2016, the Court received evidence concerning Plaintiff's claims regarding liability. Plaintiff, and Maxim Rubenchik, his friend, testified. The Government called Officer Nelson Gomez, a NPS police officer. (See Trial Transcript dated 10/6/2016 ("Tr.") p. 157.) Based on the observations made during testimony, the Court found Mr. Gomez's testimony credible; Mr. Rubenchik's testimony largely credible; and Plaintiff's testimony largely not credible. On the basis of evidence and stipulations of fact to which the parties agreed, the Court makes the findings of fact and reaches the conclusions of law set forth below.
1. Plaintiff Saiat Stepanian has been licensed to ride a motorcycle by the State of New York for 15 years. At the time of the accident, he was 36 years old. (Tr. 9, 11.)
2. On the day of the accident, June 27, 2013, Plaintiff drove a Honda 2012 CRV 1000. (Tr. 70.)
3. The headlights of Plaintiff's motorcycle illuminate approximately 60 feet in front of the motorcycle. (Tr. 70.)
4. Plaintiff purchased the motorcycle on June 22, 2013, five days before the accident at issue. (Tr. 65.)
5. On June 27, 2013, Plaintiff and his friend, Maxim Rubenchik, met up at approximately 9:00 p.m. to ride their motorcycles together. (Tr. 63.)
6. While they were riding on the Belt Parkway, in Brooklyn, NY, at approximately 10:00 p.m., it started to rain. (Tr. 63; Joint Pre-Trial Order, Stipulation of Fact ( ) K.)
7. Plaintiff and Mr. Rubenchik entered Floyd Bennet Field ("the park" or "FBF"), a defunct airport within the GNRA, to seek shelter.
8. Plaintiff had ridden a motorcycle in the park in the past. (Tr. 56-57, 59.)
9. Plaintiff was aware that the sign at the main entrance of the park states that the park closes at dark. He was also aware that orange barricades are used to block-off certain areas from vehicular traffic. (Tr. 56, 59.)
10. When Plaintiff and Mr. Rubenchik arrived at the park, they waited for the rain to stop underneath an awning at the Aviator Sports Center (''the sports center"), for approximately ten to fifteen minutes. (Tr. 31.)
11. After it stopped raining, Plaintiff and Mr. Rubenchik decided to ride their motorcycles around the park. (Tr. 31, 32.)
12. It was dark and the pavement was wet from the rain. (Tr. 32, 33, 34, 61, 111.)
13. They rode their motorcycles from the sports center, on the Old 6-24 Road (also known as Hangar B Road), turning left and driving toward Raptor Point. (Tr. 33, 35-38, 106, 107; Gov. Ex. N.)
14. They rode past orange barriers and "Do Not Enter" signs near the intersection of Old 6-24 Road and two runways.
15. When they reached the Raptor Point area, they continued on a small road toward the Remote Control Flying Field. (Tr. 37, 38, 107; Gov. Ex. N.)16. When they reached the Remote Control Flying Field, they turned left, passing "No Left Turn" and "One Way" signs and entered the North 40 Runway. (Tr. 38, 107-108, 128-129; Gov. Exs. K, N.)
17. This is the only way to enter North 40 Runway, which is otherwise blocked off by orange barricades. (Tr. 136; Gov. Ex. N.)
18. At the time of Plaintiff's accident, interconnected orange barriers were positioned across the runway, "to close off the runway." (Tr. 128)
19. These barricades close off the portion of the runway that leads to Raptor Point. (Tr. 136; Gov. Exs. M, N.)
20. The barricades are orange, interconnected, contain "Do Not Enter" signs and are visible from 200 feet away at night. (Tr. 125-126, 128, 133.)
21. These barriers have been in place for at least seven to eight years. (Tr. 129.)
22. NPS employees make decisions about the placement of these barriers, based on events, accidents, or maintenance purposes. (Tr. 130.)
23. After doing some runs together on Runway North 40, from the Remote Control Flying Field towards Flatbush Avenue, Plaintiff decided to go on a "solitary run," a ride alone. (Tr. 38, 64; Gov. Ex. N.)24. Mr. Rubenchik waited for Plaintiff at the beginning of the North 40 Runway, near Cricket Field. (Tr. 42; Gov. Ex. N.)
25. Plaintiff drove straight on North 40 Runway, towards Raptor Point. (Tr. 41, 112.)
26. While Plaintiff was driving, he looked down at his speedometer, and when he looked up, he saw the orange barricades in the distance. (Tr. 67.)
27. Plaintiff was unable to slow down or stop because he did not have enough time apply the brakes. (Tr. 69.)
28. Plaintiff collided with the orange barriers blocking the runway.
29. The maintenance department of NPS has the responsibility of positioning and designing the barriers at issue. (Tr. 129-130.)
30. Signage and other safety designs of the park are a discretionary function of NPS, as provided under 16 U.S.C. §1. (Stip. Fact H.)
In general, the United States is immune from suit, unless it consents to be sued through a waiver of sovereign immunity. See F.A.A. v. Cooper, 132 S. Ct. 1441,1456 (2012). The FTCA acts as a waiver of sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of their employment. See 28 U.S.C. §§ 1346(b), 2671 et seq. Thus, the government can be sued "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. §1346(b)(1).
However, the FTCA also includes exceptions to its waiver of sovereign immunity, including the "discretionary function exception" which immunizes the government from suit for any "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). In claims involving the FTCA, the plaintiff bears the burden of showing, by a preponderance of the evidence, that the court retains jurisdiction; specifically, that the challenged action of the National Park Service was "controlled by mandatory statues or regulations." United States v. Gaubert, 499 U.S. 315, 328 (1991); Yesina v. United States, 911 F. Supp. 2d 217, 220 (E.D.N.Y. 2012); Fraser v. United States, 490 F. Supp. 2d 302, 307 (E.D.N.Y. 2007). Because the FTCA creates a waiver of sovereign immunity, it is strictly construed and all ambiguities are resolved in favor of the United States. Fraser, 490 F. Supp. 2d at 309 (citing Moreno v. United States, 965 F. Supp. 521, 524 (S.D.N.Y. 1997)). a. The Discretionary Function Exception.
" Reichhart v. United States, 408 Fed. Appx. 441, 443 (2d Cir. 2011) (quoting In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 190 (2d Cir. 2008). "Because the FTCA is structured as a grant of subject matter jurisdiction to the federal courts, a finding that the discretionary function exception applies is tantamount to holding that the court lacks jurisdiction." Caban v. United States, 671 F. 2d 1230, 1235 n.5 (2d Cir. 1982) (citation omitted).
The Supreme Court in Berkovitz v. United States, 486 U.S. 531 (1988) established a two-part analysis to determine when the discretionary function exception applies. First, the Court must determine whether the action at issue involved an "element of judgment or choice." See Gaubert, 499 U.S. at 322. The "nature of the conduct, rather than the status of the actor" must be considered. The discretionary element is not met where a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz, 486 U.S. at 536. If a regulation prescribes particular action, the analysis ends here as an employee "has no rightful option but to adhere to the directive." Id.
If no such directive exists, then a discretionary choice likely does, and theCourt must then consider "whether that judgment is of the kind that the discretionary function exception was designed to shield," specifically, "governmental actions and decisions based on considerations of public policy." Id. at 536-537. This part of the inquiry focuses "on the nature of the actions taken and on whether they are...
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