Zuk v. US
| Decision Date | 06 October 1988 |
| Docket Number | No. 87-0934-CIV.,87-0934-CIV. |
| Citation | 698 F. Supp. 1577 |
| Parties | Bohdan ZUK, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Paul J. Levine, Spence, Payne, Masington, Grossman & Needle, P.A., Miami, Fla., for plaintiff.
Dexter W. Lehtinen, Suzan Hill Panzoli, U.S. Attys. Office, Miami, Fla., for defendant.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the court upon Defendant's Motion for Summary Judgment.
The instant litigation involves a Federal Tort Claims Act ("FTCA") suit brought against the federal government for injuries suffered by plaintiff, a visitor to Fort Jefferson National Monument ("Fort"). The Fort is a unit of the National Park System ("NPS") and is located on Garden Key in the Dry Tortugas, Florida. The Fort contains over 2,000 arches which are open to the ground, some of which are found on the second level of the Fort. There are no physical safeguards of any sort around any of the open arches, though there are various written warnings observable in certain areas of the Fort concerning the dangerous nature of the Fort's wall edges and walkways. One such warning is the first marker on the self-guided tour route, which warns of "high places without handrails" (Defendant's Exhibit D). The second level of the Fort contains no written warnings whatsoever.
No fees are charged for entrance or admission to Fort Jefferson. However, the federal government charges a $50 fee for two year special use permits used by chartered seaplanes as well as fishing and dive boats. There are also no fees charged to boats that bring passengers to the Fort. Books, postcards and photographs are sold by a non-profit cooperating organization on the premises, revenues of which go to the non-profit organization.
On or about May 5, 1986, Plaintiff visited Fort Jefferson, and as part of a self-guided tour, he engaged in viewing the park's scenery from the second level of the Fort. While on the second level, Plaintiff walked backwards and fell off an open casemate (arch) and injured himself.
DISCUSSION:
Summary judgment is appropriate only where there is no genuine issue as to any material fact, and where the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). A party who moves for summary judgment bears the exacting burden of demonstrating that there are no genuine disputes as to any material fact in the case. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In determining whether the movant has met this burden, the court must view the evidence and all factual inferences permissible in the light most favorable to the party opposing the motion. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). However, the non-moving party cannot rest upon mere allegations, but must rebut any facts properly presented by the moving party through affidavits or other evidence demonstrating the existence of a genuine and material issue of fact for trial. Adickes, 398 U.S. at 155, 90 S.Ct. at 1607. Moreover, summary judgment is mandated if, after adequate time for discovery, the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265, 273 (1986).
Defendant moves for summary judgment on two grounds. First, Defendant contends that the government's decision not to provide physical safeguards (e.g. handrailings, warnings) in the area where Plaintiff fell and was injured is a discretionary function, for which the government does not waive its sovereign immunity. The government further suggests that, even if the decision not to provide physical safeguards is not a discretionary decision, no duty was owed to Plaintiff to provide such safeguards. Secondly, the government argues that the Florida Recreational Use Statute, Fla.Stat. § 375.251, which limits the liability of persons who make available to the public certain areas for recreational use, applies to bar this FTCA suit. The government states that Section 375.251 applies to the instant action because Fort Jefferson National Monument is within Florida's state boundaries, the injury to plaintiff occurred in a park where no entrance fee is charged, and no "commercial activity" occurred in the area of the park where Plaintiff's injury took place.
The FTCA is a limited waiver of sovereign immunity, in which the government waives its sovereign immunity "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), 2674; McCorkle v. United States, 737 F.2d 957, 959 (11th Cir.1984). However, there are a number of statutory exceptions to this waiver under which the government did not waive its sovereign immunity. See 28 U.S.C. § 2680. One such exception to the government's waiver of sovereign immunity for tort actions, provides that the government does not waive its sovereign immunity for "any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).
Defendant first contends that the decision not to place guardrails along the dangerous embankment, is a discretionary decision, and thus an exception to liability under the FTCA. In Dalehite v. U.S., 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Supreme Court held that the discretionary function "includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations ... where there is room for policy judgment and decision there is discretion." In United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), which reaffirmed Dalehite, the Supreme Court noted that government decisions based on policy factors are immunized because "Congress wished to prevent judicial second guessing of legislative and administrative decisions grounded in social, economic and political policy." Id. at 814, 104 S.Ct. at 2765. Drawing from those decisions, Defendant suggests that the decision not to install guardrails is an administrative policy decision which is therefore discretionary in nature and thus, immune to judicial scrutiny under the FTCA.
Furthermore, defendant claims that decisions made by the NPS, at the policy-making level, are discretionary ones. Defendant points out that because the NPS is to preserve the "fundamental purpose of the park by "conserving the scenery and historical objects ... by such means as will leave them unimpaired for the enjoyment of future generations," the decision not to install guardrails in order to preserve the historic structure in its existing form is a policy decision consistent with congressional intent and effectively mandated by congress, thereby shielding the government from liability under the FTCA. See 16 U.S.C. § 1.
Defendant also refers to a number of cases in which courts have held that the government did not have a duty to provide guardrails in national parks or monuments. Henretig v. United States, 490 F.Supp. 398 (S.D.Fla.1980); Bowman v. U.S., 820 F.2d 1393 (4th Cir.1987); Lewis v. U.S., 508 F.Supp. 565 (E.D.Mo.1980), aff'd, 663 F.2d 818 (8th Cir.1981). Plaintiff argues that the cases cited by the government are inapplicable because they dealt with the issue of whether a duty is owed by the government with respect to the implementation of safeguards and not whether such a decision is of a discretionary type.
Plaintiff further argues that, even if the decision to install guardrails was a discretionary one, once the defendant decided to provide for safety by placing warnings in certain areas of the Fort, it had a duty to provide for safety in a non-negligent manner. Plaintiff cites a number of cases which essentially hold that once the government decided to undertake a certain responsibility, it had a duty to operate or perform that responsibility without negligence. See Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Rise v. United States, 630 F.2d 1068 (5th Cir.1980); Denham v. United States, 834 F.2d 518 (5th Cir.1987).
A reading of this court's decision in Henretig makes clear that the failure to erect guardrails comes within the discretionary function exception and no liability may attach to the government therefor. Henretig, 490 F.Supp. at 404; Smith v. U.S., 383 F.Supp. 1076 (D.Wyo.1974), affirmed, Smith v. U.S., 546 F.2d 872 (10th Cir.1976); see also Dalehite v. U.S., 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Furthermore, even if such a decision is not deemed discretionary, the government argues, and Plaintiff offers no evidence to the contrary, that no one other than Plaintiff has ever fallen from the second floor since the NPS began administering the Fort in 1935. To require the government to erect guardrails in every area of the park, where visitors might travel on penalty of liability for accidents such as this one, would render the government the insurer of the safety of all visitors to the Fort. See Henretig, 490 F.Supp. at 404. Therefore, there is neither a duty breached nor a lack of ordinary and reasonable care on the part of the Defendant in the failure to erect guardrails in the area where Plaintiff fell.
While Plaintiff is correct that once the government decides to...
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