The Government seeks dismissal of Plaintiffs' Complaint for lack of subject matter jurisdiction.
Specifically, it contends that this Court lacks subject matter jurisdiction because Plaintiffs have no cause of action under the substantive law of New Jersey.
A. The Federal Tort Claims Act
"It is elementary that 'the United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941)). A claim against the United States is barred for lack of subject matter jurisdiction unless it falls within an applicable waiver of sovereign immunity. See Mitchell, 445 U.S. at 538. "A waiver of sovereign immunity 'cannot be implied but must be unequivocally expressed'" by Congress. Id. (quoting United States v. King, 395 U.S. 1, 4, 23 L. Ed. 2d 52, 89 S. Ct. 1501 (1969)).
The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, grants a limited, qualified waiver of the federal government's sovereign immunity. It unequivocally "waives sovereign immunity as to claims against the United States for money damages for injury caused by the negligent or wrongful act or omission of a government employee acting within the scope of his 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.'" Beneficial Consumer Discount Co. v. Poltonowicz, 47 F.3d 91, 95-96 (3d Cir. 1995) (quoting 28 U.S.C. § 1346(b)). A plaintiff may recover against the United States only to the extent that recovery would be permitted under the substantive tort law of the state where the complained of conduct took place. Ciccarone v. United States, 486 F.2d 253, 257 (3d Cir. 1973). The waiver of the United States' sovereign immunity may not be enlarged by the courts, and its consent to be sued must be construed strictly in favor of the sovereign. See United States v. Nordic Village, 503 U.S. 30, 34, 117 L. Ed. 2d 181, 112 S. Ct. 1011 (1992).
The FTCA did not itself create a substantive cause of action against the United States. Rather, it conferred a procedural remedy by which substantive state law could be applied against the federal government. Therefore, in each FTCA case the "controlling question is whether the substantive law of [the state where the alleged wrong occurred] permits . . . recovery from the United States under the facts of the case." Certain Underwriters at Lloyd's v. United States, 511 F.2d 159, 161 (5th Cir. 1960). In this case, the substantive law of New Jersey governs because it is the state where the complained of conduct took place.
B. The New Jersey Playground Act
The Government contends that Plaintiffs have no cause of action because the New Jersey Playground Act ("Playground Act"), N.J. Stat. Ann. § 5:3-30, provides immunity against tort liability in this case. The Playground Act states:
No person maintaining or operating a playground for public use acquired or maintained for philanthropic purposes and not for profit, shall be liable in damages for accidents happening within the bounds of such playground.