APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX
(D.C. Civ. No. 95-cv-00002)
Before: BECKER, ROTH and WEIS, Circuit Judges
In this appeal we conclude that the United States Navy's failure to provide routine safeguards on a footpath leading to a structure under its control does not implicate the discretionary function exception to the Federal Tort Claims Act. See 28 U.S.C. Section(s) 2680(a). Therefore, the claim of personal injury based on the plaintiff's fall on the path satisfies the jurisdictional facet of the Act and the judgment dismissing the complaint will be reversed.
At the time of the accident, plaintiff, Sheila Gotha, was an employee of the Martin-Marietta Company, which was performing work for the Navy at the land base of the Underwater Tracking Range located on St. Croix, Virgin Islands. The facility consists of upper and lower sites separated by a public road.
On February 20, 1994, at approximately 5:00 a.m., plaintiff was walking from the upper portion of the facility to the lower sector to deliver material to an office trailer.
She and a co-employee took the unpaved path that led directly to the trailer. The path was approximately fifteen to twenty feet in length and dropped downward at an angle of approximately fifty-four degrees. There was no lighting in the area, and as plaintiff descended the path in the darkness, she fell and injured her ankle.
Plaintiff sued the United States under the Federal Tort Claims Act, 28 U.S.C. Section(s) 2671-80, alleging negligence on the part of the government in failing to provide a safe access to the trailer. Specifically, her complaint alleged that the government was negligent in failing to provide a stairway with handrails and for neglecting to provide sufficient lighting at the scene. The district court, however, dismissed the action based on lack of subject-matter jurisdiction, concluding that the government was protected by sovereign immunity because the conduct alleged came within the discretionary function exception to liability under the Federal Tort Claims Act, 28 U.S.C. Section(s) 2680(a).
Based on testimony of Navy personnel, the court rejected the government's first defense of delegation of responsibility to Martin-Marietta for the condition of the premises. After analyzing the discretionary function exception, the court decided that no statute or regulation mandated the Navy to make the repairs or undertake the construction measures that plaintiff alleged were necessary.
The court, however, determined that the exception applied because the Navy had based its decision not to improve the path on "a complex set of policy imperatives." These factors included "the effect of any construction on existing military hardware," as well as "budgetary constraints and safety concerns." In conclusion, the court stated: "A policy decision was made concerning the installation of steps on the [Underwater Tracking Range] premises and that decision is protected by the discretionary function exception."
The government's motion to dismiss was based on Federal Rule of Civil Procedure 12(b)(1), lack of subject-matter jurisdiction. Because the Navy's motion was not merely a facial challenge to the district court's jurisdiction, the court was not confined to allegations in the plaintiff's complaint, but could consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass'n., 549 F.2d 884, 891-92 (3d Cir. 1977) (because a trial court's very power to hear a case is at issue in a factual 12(b)(1) motion, a court is free to weigh evidence beyond the plaintiff's allegations). We ...