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Barnett v. United States

United States District Court, M.D. Pennsylvania

October 30, 2014



EDWIN M. KOSIK, District Judge.

Before this court is Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment. For the reasons which follow, the Court will grant Defendant's motion to dismiss as to Plaintiff's negligent construction claims, and grant Defendant's motion for summary judgment as to Plaintiff's negligent maintenance claims.


Plaintiff filed a Complaint (Doc. 1), on August 21, 2012. After the parties completed discovery, Defendant filed a Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. 20), a Statement of Material Facts ("SMF") (Doc. 21), and a brief in support of its motion (Doc. 22), on November 8, 2013. Plaintiff filed an Answer to SMF (Doc. 25), and a brief in opposition (Doc. 26), on December 30, 2013. Defendant filed a reply brief (Doc. 31), on February 14, 2014. The motion is ripe for disposition.


On January 26, 2010, Plaintiff was driving south on Route 209, which is his normal commute to and from work. (Doc. 21, Def's SMF, at ¶¶ 1, 9.) At around 10:00 PM, Plaintiff hit a patch of black ice at mile marker fourteen, and his car rolled over. (Doc., Ex. A, Bartlett Dep., at 14:3-10; 14:22-23; 23:5-14.) As a result of the accident, Plaintiff sustained a broken neck, a herniated disc, and associated pain. (Id. at 62:1-5.)

On the night of the accident, the weather was cold, but there was no precipitation. (Doc. 21, Def's SMF, at ¶ 14.) It had rained the day before, and there was no snow on the day of the accident. (Id.) Plaintiff recalled that the day before the accident, he was aware that it had rained in the area where the accident occurred and that water ran across the road. (Id. at 18.)

Route 209 was constructed by the state of Pennsylvania and transferred to the United States in 1983. (Id. at ¶ 30.) The purpose of the transfer was to convert Route 209 from a transportation corridor heavily used by commercial traffic, into a park road. (Id.) Route 209 runs through the Pennsylvania side of the Delaware Water Gap National Recreation Center. (Id. at ¶ 29.) The National Park Service ("NPS") Management Policies and the NPS Road Standards 1984 ("Standards") gives guidance to park superintendents, managers, planners, and designers.[1] (NPS Management Policies 2006; 1984 NPS Park Road Standards.)


A. Rule 12(b)(1) Standard

The United States's motion to dismiss is a factual attack on the basis of federal jurisdiction. In such cases, we are "entitled to independently evaluate the evidence to resolve disputes over jurisdictional facts." S.R.P. ex rel. Abunabba v. U.S. , 676 F.3d 329, 332 (3d Cir. 2012). "No presumption of truthfulness attaches to the allegations in plaintiff's complaint, and the existence of disputed material facts does not preclude the court from evaluating for itself the merits of plaintiff's claim that a basis for federal jurisdiction exists." Koch v. U.S. , 814 F.Supp. 1221, 1226 (3d Cir. 1993). If a defendant supports its attack on jurisdiction with affidavits, a plaintiff has the burden of responding to those facts. Id . If the "plaintiff's and the defendant's sworn proofs raise a disputed issue of material fact, the court should permit the case to proceed to trial in which the contested jurisdictional issues and the issues on the merits are both resolved." Id. at 1226-27 (citing Int'l Ass'n of Machinists & Aerospace Workers v. Nw. Airlines, Inc. , 673 F.2d 700, 712 (3d Cir. 1982)).

B. Rule 56 Standard

For claims over which we do have jurisdiction, we will construe the United States's motion as a motion for summary judgment. Where "matters outside the pleadings are presented to and not excluded by the court, the motions shall be treated as one for summary judgment and disposed of as provided in Rule 56. Fed.R.Civ.P. 12(d). "When a motion to dismiss is converted into a motion for summary judgment the parties must be given notice of the conversion and an opportunity to present material to the court." Latham v. U.S. , 306 F.App'x 716, 718 (3d Cir. 2009); see also Rose v. Bartle , 871 F.2d 331, 342 (3d Cir. 1989). The Third Circuit has held that filing a motion to dismiss, or in the alternative, a motion for summary judgment is sufficient "to place the parties on notice that summary judgment might be entered." Hilfirty v. Shipman , 91 F.3d 573, 578-79 (3d Cir. 1996)


Defendant's motion is based principally on three alternative grounds: (1) the discretionary function exception to the Federal Torts Claim Act ("FTCA"), 28 U.S.C. § 2671 et seq, bars Plaintiff's claim; (2) Pennsylvania's Recreational Use of Land and Water Act ("RULWA"), 68 P.S. § 477-1-477-8, bars Plaintiff's claim under the FTCA; and (3) Plaintiff cannot establish the negligence of the United States.

A. Discretionary Function Exception

The government argues that the court does not have subject matter jurisdiction, since it is immune from suit under the discretionary function exception to the FTCA. Under the FTCA, the United States partially waives sovereign immunity for:

claims... for money damages..., for injury or loss of property, or 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, 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)(1). An exception to this waiver of sovereign immunity, is the discretionary function exception, which gives the government immunity from:

Any 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 abuse.

28 U.S.C. § 2680(a). 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." U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) , 467 U.S. 797, 808 (1984).

B. Application of the Discretionary Function Exception

Plaintiff bears the "burden of establishing that his claims fall within the scope of the FTCA's waiver of the federal government's sovereign immunity (i.e., that the requirements of 28 U.S.C. § 1346(b)(1) are met)...." Abunabba , 676 F.3d at 333. The Court of Appeals for the Third Circuit has held that the Government has the burden of proving the applicability of the discretionary function exception. See id, note 2 (discussing U.S. v. Gaubert , 499 U.S. 315 (1991), and finding that placing the burden on the Government is consistent with Gaubert).

As a threshold matter, a court must identify the conduct at issue. Id. at 332. Then, the court must apply a two-pronged test set forth in Gaubert. See Merando v. U.S. , 517 F.3d 160, 164 (3d Cir. 2008). "First, a court must determine whether the act giving rise to the alleged injury and thus the suit involved an element of judgment or choice.'" Id . (citing Gaubert , 499 U.S. at 322). "The requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, ' because the employee has no rightful option but to adhere to the directive.'" Id . (quoting Gaubert , 499 U.S. at 322).

Second, even if the challenged conduct involves an element of judgment or choice, the second prong of the Gaubert test requires the court to determine "whether that judgment is of the kind that the discretionary function exception was designed to shield." Gaubert , 499 U.S. at 322-23. "Because the purpose of the exception is to prevent judicial second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy... the exception protects only governmental actions and decisions based on considerations of public policy." Abunabba , 676 F.3d at 333 (quoting Gaubert , 499 U.S. at 323). The focus of the inquiry is on the "nature of the actions taken and on whether they are susceptible to policy analysis." Id. at 325.

1. The Challenged Government Conduct

Before we undergo the two-part inquiry to determine whether the discretionary function exception applies, we must first identify the conduct at issue. See generally Merando , 517 F.3d at 165-168. Plaintiff contends that the challenged conduct is two-fold: (1) the Government's failure to construct Route 209, which is part of and runs through the Delaware Water Gap National Recreation Area, in a way to provide for adequate ditches so as to prevent black ice; and (2) the Government's failure to properly maintain Route 209 to the standards to which they have been constructed, and in a condition that promotes safety, including the use of plow trucks, salt, cinders, and caution devices, on the night of the accident.

2. First Gaubert Prong

We next determine whether the conduct involved an "element of judgment or choice." Gaubert, 499 at 322. In doing so, we consider whether there is a relevant statute, regulation, or policy that required NPS to construct and/or maintain Route 209 in a way that provides for adequate ditches, or maintain the ditches, to the standards in which they were constructed and in a way that promotes safety, or whether the Government's actions were discretionary. Since the conduct in question is two-fold, we will discuss each in turn.

i. Construction of Route 209

We first consider whether the construction of Route 209 involved an "element of judgment or choice." The Government argues that the Standards, adopted in 1984, do not apply to Route 209 in regards to construction, since the Standards were adopted a year after Route 209 was constructed. The Government asserts that Route 209 was constructed by the State of Pennsylvania in 1983, and there has been no construction or reconstruction on Route 209 in the area of the accident at mile marker fourteen.

Plaintiff argues that the discretionary function exception does not apply because the Standards are applicable to Route 209 in terms of construction. Plaintiff points to the Roadside Slopes and Drainage Section, which starts off by stating, "Where terrain conditions and park resources permit, backslopes, foreslopes, and roadside drainage channels should have gentle, well-rounded transitions which will be achieved through slope rounding." Standards, at 32. It goes on to state,

Cut sections should be designed to provide for adequate ditches or other drainage features to ensure positive drainage. The ditch must be large enough to accommodate the design flows and deep enough to provide for satisfactory drainage of the pavement base. ...

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