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Miller v. United States

July 29, 2009


The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania

(Chief Judge Kane)


Before the Court is Defendant United States of America's motion to dismiss Plaintiff Marjory J. Miller's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). (Doc. No. 15.) Defendant argues that Plaintiff's complaint, which seeks recovery under the Federal Tort Claims Act ("FTCA") for injuries sustained at Gettysburg National Military Park, should be dismissed for lack of subject matter jurisdiction due to the FTCA's discretionary function exception or for failure to state a claim due to Pennsylvania's Recreational Use of Land and Water Act ("RULWA"). The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the motion will be granted.


On May 22, 2005, Marjory J. Miller ("Plaintiff") visited Gettysburg National Military Park ("the Park") in Gettysburg, Pennsylvania. The Park is an admission-free, publicly accessible historic park managed by the National Park Service, a division of the United States Department of the Interior. (Latschar Decl. ¶ 15.) An average of 1.6 million people visit the Park annually. (Latschar Decl. ¶ 2.) The mission of the Park is to "preserve and interpret the historic setting of the Battle of Gettysburg." (Latschar Decl. ¶ 2.) To achieve that mission, the Park is managed pursuant to directives and guidelines set out in a General Management Plan, the Management Policies Manual, various Director's Orders, and a Park Service Sign Manual. All of these policies are informed by the Park Service Organic Act, 16 U.S.C. § 1, which directs the Park Service to preserve "the scenery and the natural and historic objects and wild life" in a manner that "will leave them unimpaired for the enjoyment of future generations." (Latschar Decl. ¶ 10.) The Management Policies 2001 Manual*fn1 emphasizes that "the saving of human life will take precedence over all other management actions," but also states that "[t]he means by which public safety concerns are to be addressed is left to the decision of superintendents and other decision-makers at the park level. . . . Examples include decisions about whether to install warning signs . . . or install guardrails and fences." (Latschar Decl. ¶ 11.) The Manual further explains that "[s]ome forms of visitor safeguards--such as fences, railings and paved walking surfaces--typically found in other public venues may not be appropriate in a national park setting." (Id.) These missions and guidelines were all in place at the time of Plaintiff's visit to the Park.

While visiting the Park, Plaintiff approached the Pennsylvania Monument, a commemorative monument located near Hancock Avenue. (Comp. ¶ 8; Latschar Decl. ¶ 4.) From the Pennsylvania Monument, Plaintiff "walked along a sidewalk [and] crossed over a grate at the junction of the sidewalk[,] which had been placed over a paved drainage ditch," to get a closer view of the Army of the Potomac Artillery Reserve Monument. (Comp. ¶ 8.) She proceeded across the road toward the Army of the Potomac Artillery Reserve Monument but fell into a second drainage ditch on the opposite side of the road that did not have any crossover path or grated covering. (Comp. ¶ 8-9.) The ditch into which Plaintiff fell, paved in the same color and material as the roadway, is approximately twenty-four inches wide and eight and one-half inches deep. (Comp. ¶ 9.) As a result of the fall, Plaintiff sustained serious injuries to her head, right tibial plateau, and popliteal artery. (Comp. ¶ 11.) The injuries required emergency treatment, multiple hospitalizations and surgeries, and extended leave from her employment. (Comp. ¶¶ 11-12.) Plaintiff's complaint alleges that the injuries were proximately caused by Defendant's negligence in that the Park did not provide adequate cautionary measures, including a crossover path to the Army of the Potomac Artillery Reserve Monument or a sign to alert visitors of the hazardous ditch.

The United States admits that there were no warning signs or pathway coverings over the drainage ditch located near the Army of the Potomac Artillery Reserve Monument, but argues that the Park superintendent had discretion not to implement safety measures at the site of Plaintiff's injury, and therefore this Court lacks jurisdiction to hear the case due to the FTCA's discretionary function exception. Alternatively, the United States argues that Pennsylvania's RULWA bars the claim. Because the Court finds that the Park's decision not to install a crossover grate or warning sign over the ditch falls within the discretionary function exception to the FTCA, it will not consider Defendant's RULWA argument.


A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) does not necessarily follow the same standard of review as the more often considered 12(b)(6) motion. If the challenge to subject matter jurisdiction relies on a facial attack of the pleadings, "the court must consider the allegations of the complaint as true," as it would with a motion to dismiss under 12(b)(6). Mortensen v. First Federal Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A motion that challenges "the existence of subject matter jurisdiction in fact, quite apart from any pleadings," however, does not require a court to consider all allegations of the complaint as true because the court must weigh the evidence to ensure that it has the power to hear the case. Mortensen, 549 F.2d at 891 ("In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims."). In such case where the existence of subject-matter jurisdiction is attacked in fact, the plaintiff, not the moving party, has the burden of proof that the court has jurisdiction over the controversy before it. Id.

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint, Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993), and is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). Indeed, the Supreme Court has recently held that while this standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of entitlement to relief . . . '[F]actual allegations must be enough to raise a right to relief above the speculative level'" in order to survive a 12(b)(6) motion to dismiss. Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).


Plaintiff's injuries allegedly occurred during a visit to Gettysburg National Military Park on property owned by the federal government. Yet, the United States has immunity from lawsuits "unless it consents to be sued." Merando v. United States, 517 F.3d 160, 164 (3d Cir. 2008). By virtue of the FTCA, Congress has consented to liability for damages suits against the United States "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). Congress has, however, limited the FTCA's broad waiver of sovereign immunity through various exceptions to the FTCA, such as the discretionary function exception, at issue in this case. 28 U.S.C. § 2680(a). The discretionary function exception provides that the United States will not held liable for:

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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. ยง 2680(a). The intended purpose of the exception is "to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action ...

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