Wesberry v. United States, Civil Action No.: 15-0825 (RC)

• Decision Date: 09 September 2016
• Docket Number: Civil Action No.: 15-0825 (RC)
• Parties: Becky WESBERRY, et al., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. District Court — District of Columbia

205 F.Supp.3d 120

Becky WESBERRY, et al., Plaintiffs,

v.UNITED STATES, Defendant.

Civil Action No.: 15-0825 (RC)

United States District Court, District of Columbia.

Signed September 9, 2016

William P. Lightfoot, Koonz, McKenney, Johnson, DePaolis & Lightfoot, LLP, Washington, DC, for Plaintiffs.

Alexander Daniel Shoaibi, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

DENYING DEFENDANT'S MOTION TO DISMISS WITHOUT PREJUDICE

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiffs Becky Wesberry and Jim Wesberry (collectively, the "Wesberrys" or "Plaintiffs")¹ bring this personal injury action against the United States. The Wesberrys, a married couple from Texas, allege that Becky Wesberry fell and sustained serious injuries when leaving Ford's Theatre, the historic site of President Abraham Lincoln's assassination on April 14, 1865. The United States National Park Service, an agency of the United States Department of the Interior, is responsible for administering the Theatre. The Wesberrys assert a negligence claim against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, and also seek damages for Jim Wesberry's loss of consortium due to his wife's injuries.

Following the filing of an Amended Complaint, the United States moved to dismiss. The government argues that the Wesberrys' claims are barred by sovereign immunity and that they fail to state a claim upon which relief can be granted. In their opposition to the government's motion, the Wesberrys request leave to conduct jurisdictional discovery.

For the reasons stated below, the Court finds that the discretionary function exception to the FTCA may bar the Plaintiffs' claims. Specifically, the Court finds that the National Park Service's decisions with regard to warning signs, handrails, and other safety features are grounded in public policy. However, at this time, the Court finds that it would be premature to determine whether any binding mandate governs the agency's decision-making process. Instead, the Court will allow Plaintiffs to conduct strictly limited jurisdictional discovery on that question. Discovery will be permitted only on whether a mandatory directive governed the National Park Service's acts or omissions, and, if such a directive existed, whether government employees followed its command. Thus, the Court will deny the government's motion, without prejudice, and permit the government to move for dismissal following jurisdictional discovery, if it chooses to do so.

II. BACKGROUND

A. Becky Wesberry's Injury

According to the Amended Complaint, Plaintiffs Becky Wesberry and Jim Wesberry visited Ford's Theatre in Washington, D.C., on April 28, 2014. See Am. Compl. ¶ 9, ECF No. 9. After spending time in the Ford's Theatre Museum, Plaintiffs exited the building through one of five doors leading to the street. Id. ¶¶ 11–13.² The exit Plaintiffs used consisted of two low-rise steps, which did not have a handrail, leading to a sloped brick sidewalk. Id. ¶¶ 17–18. Becky Wesberry was unaware of the steps when she exited the building and she fell to the ground. Id. ¶¶ 19–20. The fall caused "multiple facial lacerations

," as well as a loss of consciousness. Id. ¶ 20. National Park Service Rangers provided initial care until the District of Columbia Fire and Emergency Medical Services arrived to transport Becky Wesberry to George Washington University Hospital in an ambulance. Id. ¶¶ 21–22. Because of the fall, Becky Wesberry suffered a broken hip, "which required extensive surgery and a prolonged hospital stay." Id. ¶ 23. Becky Wesberry also received ongoing physical therapy and psychiatric treatment after returning home to Texas. Id.

The Plaintiffs' Amended Complaint includes two Counts. Count I alleges that the negligence of the United States caused Becky Wesberry's injuries. Id. ¶¶ 24–28. Specifically, Plaintiffs claim that the United States breached its duty of care through a number of alleged acts or omissions, including:

(a) failure to provide hand rails ...;

(b) failure to assure steps were properly proportioned;

(c) failure to provide slip-resistant stairs ...;

(d) failure to mark, warn, or otherwise indicate an unsafe or dangerous condition ...;

(e) failure to provide an adequate pedestrian pathway and/or stairway to the street and/or other areas ...;

(f) failure to utilize signs, barriers, observable markers (e.g. stairway lighting), and/or bright paints ...;

(g) failure to construct or maintain sidewalks and/or steps in conformity with nationally recognized safety standards, including but not limited to the National Fire Protection Association ("NFPA") standards ....

Id. ¶ 26. Count II of the Amended Complaint seeks damages for Jim Wesberry's loss of consortium due to Becky Wesberry's injuries. Id. ¶¶ 29–31.

B. Ford's Theatre

Ford's Theatre is administered by the National Park Service as a historic site within the National Mall and Memorial Parks Area.³ See Def.'s Mot. Dismiss Ex. 1 Decl. of Karen Cucurullo ("Cucurullo Decl.") ¶ 3, ECF No. 12-1.⁴ In 1968, the National Park Service re-opened Ford's Theatre to the public after attempting to restore it to the state in which it operated on the night President Lincoln was assassinated. Id. ¶ 4. Today, Ford's Theatre includes a museum dedicated to the Theatre's history and legacy, as well as a working venue for theatrical performances. Id.

The Organic Act requires the National Park Service to manage the National Park System in a manner that conforms to the purpose of the parks, which is to "conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life ... as will leave them unimpaired for the enjoyment of future generations." 54 U.S.C. § 100101(a).⁵ Ms. Cucurullo declares that Ford's Theatre is managed in a manner consistent with those objectives. See Cucurullo Decl. ¶ 5. The National Park Service "vests decision-making authority," including "public safety-related decisions," in park superintendents. Id. ¶ 6. Specifically, National Park Service policies provide that the "means by which public safety concerns are to be met is left to the discretion of the superintendents and other decision-makers at the park level." Id. (quoting Cucurullo Decl. Ex. A at 5, ECF No. 12-2 (National Park Service Management Policies ch. 8.2.5)). Other National Park Service guidelines explain that park superintendents "must make discretionary decisions that balance public recreation and safety with preservation of the protected natural, historic, or cultural setting." See Cucurullo Decl. Ex. B at 2, ECF No. 12-3 (National Park Service Director's Order 50C); see also Cucurullo Decl. ¶ 6 (quoting a portion of Order 50C).

The Ford's Theatre facade includes five doors that exit from the lobby onto 10th Street, Northwest. See Am. Compl. ¶¶ 12–13; Cucurullo Decl. ¶ 7. Each exit steps down to the sidewalk at street level. See Am. Compl. ¶ 13; Cucurullo Decl. ¶ 7. Because the sidewalk below the exits is on a slope, the number of steps is not uniform from exit to exit. See Cucurullo Decl. ¶ 7; see also Am. Compl. ¶ 17 (noting slope). The first and second exits (counting from left to right) did not feature handrails, but the remaining three did include handrails. See Cucurullo Decl. ¶ 8.⁶ In the 1860s, none of the exits at Ford's Theatre had handrails. See id. ¶ 9; see also Am. Compl. ¶ 16 (alleging handrails were installed after the Theatre was built). In fact, in their opposition to the motion to dismiss, Plaintiffs provide evidence, including photographs, that some of the exits were originally large, arched windows. See Pls.' Mem. P. & A. Opp'n Def.'s Mot. Dismiss ("Pls.' Opp'n") at 5, ECF No. 14; Pls.' Opp'n Ex. 1 at 3, ECF No. 14-2 (including a photograph of Ford's Theatre taken in the 1930s). The government does not challenge the veracity of those photographs, but does note that they were taken before the National Park Service took control of Ford's Theatre. See Def.'s Reply Mem. Supp. Def.'s Mot. Dismiss (Def.'s Reply) at 12–13, ECF No. 17. When the Theatre was re-opened under National Park Service control in 1968, none of the five exits had handrails. See Cucurullo Decl. ¶ 9; accord Am. Compl. ¶ 16 (alleging handrails "were installed after the Theatre was built"). According to the government's declarant, a review of National Park Service files did not reveal project documents related to the installation of the handrails, but a review of photographs indicated that the existing handrails were installed sometime between 1968 and 1996. See Cucurullo Decl. ¶ 10.

From inside the lobby, each of the five exits is marked with a lighted "Exit" sign. Id. ¶ 11. According to Ms. Cucurullo, the use of signs and visual warnings at sites managed by the National Park Service is guided by the "longstanding [National Park Service] policy to minimally intrude upon the natural or historic setting in National Park System areas, and to avoid an unnecessary proliferation of signs, while striving to ensure the safety of park visitors." Id. ¶ 12 (quoting National Park Service Sign Manual at 1-1).⁷ Ms. Cucurullo also declares that "[n]o law, regulation, or policy mandates how the [National Park Service] has designed or maintained the signage in Ford's Theatre," and that the National Park Service is free "to choose to minimize the amount of signage and warnings within Ford's Theatre so as not to detract from the aesthetics of the historic location." Id. ¶¶ 13–14.

C. Procedural Background

Becky Wesberry and Jim Wesberry brought suit in this Court in June 2015. See generally Compl., ECF No. 1. The Plaintiffs filed an Amended Complaint on October 19, 2015. See generally Am. Compl. The Amended Complaint includes a negligence count against the United States brought pursuant to the FTCA, 28 U.S.C. §§ 1346(b), 2671, and a claim for loss of consortium. See id. ¶¶ 1, 24–31. The United...