The opinion of the court was delivered by: McLAUGHLIN, Sean J., J.
This matter is before the Court upon a motion to dismiss or, in the alternative, for summary judgment filed by the United States of America as Defendant. For the reasons which follow, Defendant's motion for summary judgment will be granted in part and denied in part.
On July 16, 2006, Plaintiff Jeanette Geiser ("Geiser"), along with family and friends, arrived at East Branch Clarion River Lake, a reservoir located in Elk County, Pennsylvania. (Complaint ¶ 10). Geiser and her companions checked into a campsite at the East Branch Campground, a facility owned by Defendant and operated by the U.S. Army Corps of Engineers ("Army Corps"). (Complaint ¶¶ 5, 7). On July 17, 2006, while attempting to assist a seven year old family friend with the controls on a shower at the East Branch campground, Geiser slipped and fell on the wet floor surface, injuring her leg and ankle. (Complaint ¶¶ 15, 18).
The shower facility at issue had been constructed in 2005 by the Army Corps utilizing a steel trowel concrete surface on the shower stall floors. (Complaint ¶ 13). In this action, Geiser asserts that the Army Corps failed to use reasonable care in the construction of the facility, resulting in her injuries.*fn1 Specifically, Geiser alleges that the use of a steel trowel finish on the floor, as opposed to a broom finish, created a dangerous condition as a result of the "smooth, glossy surface" and "lack of skid resistant surface" on the shower floor. (Complaint ¶¶ 16-17). Geiser also alleges that the Army Corps was negligent in failing to utilize skid resistant mats on top of the shower floor, failing to warn of the danger presented by the smooth floor, and violating various building codes and industry standards. (Complaint ¶ 17).
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the jurisdiction of the court to address the merits of the plaintiff's suit. Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of persuading the court that it has jurisdiction as compared to the burden of defendant under a Rule 12(b)(6) motion of convincing the court that plaintiff has failed to state a claim. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3rd Cir. 1991), cert. denied, 501 U.S. 1222 (1991). If a court concludes that it does not have subject matter jurisdiction over a case, it must dismiss the action. See Robinson v. Dalton, 107 F.3d 1018, 1020 (3rd Cir. 1997).
Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be granted if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Rule 56(e) further provides that when a motion for summary judgment is made and supported, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party."
A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. See Fed. R. Civ. P. 56(c); Krouse v. American Sterilizer Company, 126 F.3d 494, 500 n.2 (3rd Cir. 1997). The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3rd Cir. 1990). Further, "[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential fact 'to demand at least one sworn averment of that fact before the lengthy process of litigation continues.'" Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3rd Cir. 1990) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)).
The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3rd Cir. 1989) (the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance - which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.
A material fact is a fact whose resolution will affect the outcome of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although the court must resolve any doubts as to the existence of genuine issues of fact against the party moving for summary judgment, Rule 56 "does not allow a party resisting the motion to rely merely upon bare assertions, conclusory allegations or suspicions." Firemen's Ins. Company of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3rd Cir. 1982). Summary judgment is only precluded if the dispute about a material fact is "genuine," i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249.
Geiser filed this action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, alleging that the Army Corps failed to use reasonable care in the construction of the concrete floor of the shower facility at the East Branch campground. Although a district court generally lacks jurisdiction over claims against the federal government, the FTCA serves as a waiver of sovereign immunity for torts involving "personal injury or death 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); Mitchell v. United States, 225 F.3d 361, 362 (3rd Cir. 2000). It is a plaintiff's burden to demonstrate that his or her claims fall within the scope of the FTCA's waiver of governmental immunity. In re Orthopedic Bone Screw Prod. Liab. Litigation, 264 F.3d 344, 361 (3rd Cir. 2001).
The FTCA also carves out an exception to governmental liability for certain discretionary acts performed by government employees:
The provisions of this chapter... shall not apply to -(a) Any claim based upon an act or omission of an employee of the Government... 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. This exception, known as the "discretionary function" exception, "was designed to keep the courts from 'second guessing,' through decisions in tort actions, the way that government officials choose to balance economic, social, and political factors as they carry out their official duties." Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995). As such, the discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984). It is the government's burden to prove that the discretionary function exception applies. Cestonaro v. United States, 211 F.3d 749, 756 n. 5 (3rd Cir. 2000).
In United States v. Gaubert, the United States Supreme Court set forth a two-part inquiry to guide the application of the discretionary function exception. Gaubert, 499 U.S. 315, 322-23 (1991); Mitchell, 225 F.3d at 363. First, a court must determine whether the act or conduct at issue involves "an element of judgment or choice." Gaubert, 499 U.S. at 322. Where a "federal statute, regulation or policy specifically prescribes a course of action for an employee to follow," see Gaubert, 499 U.S. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536 ...