United States District Court, District of New Jersey, D.
April 6, 2000
DENISE NAIDU, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Wolin, District Judge.
Plaintiff, Denise Naidu, filed suit to recover damages for injuries
allegedly suffered when she slipped and fell while descending a staircase
at a building within Fort Hancock, a National Historic Landmark. This
case is now before the Court on defendants motion to dismiss. defendant,
the United States, moves to dismiss, pursuant to Rule 12(b)(1) of the
Federal holes of Civil Procedure, for lack of subject matter
jurisdiction, in the alternative, defendant moves for summary judgment,
pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff
opposes the motion. The Court has considered this matter, on the papers,
pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the
reasons stated below, the (unit will dismiss the Complaint, in its
entirety, for lack of subject matter jurisdiction.
Plaintiff was injured at Building 18 of Fort Hancock, located at the
Sandy Hook Unit of the Gateway National Recreational Area, in Highlands,
New Jersey. Plaintiff sustained her injuries as she fell down the last
two stairs of the main stairway at Building 18. Plaintiff claims that she
fell because (1) the stairs were coated with a slippery surface; (2) she
was misled by the handrail bannister which terminated at the second
step, not at the bottom step; and (3) the lighting was inadequate.
Plaintiff admitted, however, that while descending the stairs, she was
holding a "large" computer box which obstructed her view (if her feet. In
addition, plaintiff testified in her deposition that she placed no hand
on the handrail but, instead, used it as a visual marker. She also
admitted she fell because "[she] thought [she] was all the way down and
there was one step to go."
Fort Hancock, named for General Winfield Scott Hancock, has been an
important historic and military site
throughout American history.*fn1 (Kirsch exhs. 4-5).*fn2 At the time of
the Revolutionary War, Sandy Hook (which encompasses Fort Hancock) was
occupied by British and Loyalist Troops. (Id.) Dining the War of 1812,
the United States Army built a temporary fort and, in 1859, construction
began on a permanent masonry fort. (Id.) For close to a hundred years,
Fort Hancock served as an active coastal defense fortification designed
and armed to defend New York Harbor and the vicinity from sea and air
attacks. (Id.) The Army occupied the fort in both World War I and II,
when its population rose to 18,000. (Id.) While the military was active
at the fort, Building 18 (the location of' plaintiffs accident) served as
the officer's quarters for military personnel. (Baerlin Decl. ¶ 7).
Building 18 (the "Officer's Quarters") and the other buildings on
"Officer's Row" not only possess historic significance, they also reflect
the architectural mood of the times. Of note, the buildings on Officer's
Row, which have been described as "the most impressive" buildings at the
Fort, were constructed in the Colonial Revival architectural style.
(Kirsch exh. 5). This architectural style constituted a rejection of the
Victorian style and a rebirth of the Georgian and Federal designs which
typified the Revolutionary War era. (Id.)
Due to its historical significance, Fort Hancock. inclusive of the
Officer's Quarters, was designated as a National Historic Landmark. Sec
National Historic Preservation Act, 16 U.S.C. § 470-470x-6; Baerlin
Decl. ¶ 6. of significance to this motion, the Officer's Quarters'
staircase and handrail banister which plaintiff claims defendant
negligently maintained-are part of the original construction of the
quarters and have been determined to be a "character defining" feature of
this historic site. (Baerlin Decl. ¶ 9).
In 1974, the Fort Hancock was deactivated and transferred to the
National Park Service ("NPS") of the Department of' the Interior. As part
of its statutory mission and mandate, the NPS must "conserve historic
objects [and] provide for them in such a manner and by such means as will
leave them unimpaired for the enjoyment of future generations."
16 U.S.C. § 1; Baerlin Decl. ¶ 3.
In 1989, the NPS authorized the American Littoral Society (the "ALS"),
a nonprofit organization devoted to the study and conservation of aquatic
life, full use of the Officer's Quarters. In April 1997, plaintiff, then
an employee of the ALS, sustained her injuries on the stairs of the
Officer's Quarters during the course of her employment.
Plaintiff brings a one-count complaint against defendant, sounding in
negligence, under the Federal Tort Claims Act, 28 U.S.C. § 2671-80.
According to plaintiff, defendant was negligent because (1) the stairs of
the Officer's Quarters were coated with a slippery surface; (2) the
handrail banister terminated at the second step-not the bottom step; and
(3) the lighting was inadequate.
Defendant now moves to dismiss the complaint for lack of subject
jurisdiction.*fn3 Defendant contends that the acts alleged in the
plaintiffs complaint fall within the discretionary function exception to
the FTCA. See 28 U.S.C. § 2680 (a). As such, defendant asserts the
Court is without jurisdiction.
Upon enacting the FTCA, Congress abrogated the federal government's
sovereign immunity with regard to tort claims for money damages.
Congress, however, created certain statutory exceptions to this waiver of
sovereign immunity. Defendant's motion centers around one of these
exceptions — the discretionary function exception.
Claims which fall within the discretionary function exception are
outside the Court's jurisdiction. Indeed, under this exception, the
waiver of the government's immunity
shall not apply to . . . [a]ny claim 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 (a).
While the statute does not define "discretionary function," the Third
Circuit has explained that
[t]he discretionary function exception is designed to
protect policy making by the politically accountable
branches of government from interference in the form
of "second-guessing" by the judiciary-second guessing
the result of which burdens the public fisc and the
prospect of which skews the decision making process of
the executive and legislative policymakers.
Fisher Bros. Sales, Joe. v. United States, 46 F.3d 279
, 284 (3d Cir.
1995) (en banc) (citing United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797
, 808, 104 S.Ct. 2755, 81 L.Ed.2d
660 (1984)); see also Gotha v. United States, 115 F.3d 176
, 179 (3d Cir.
1997) ("The reason for "fashioning an exception for discretionary
governmental functions' was to "protect the government from liability
that would seriously handicap efficient government operations." (quoting
Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755)).
The Supreme Court has adopted a two-stage inquiry in determining the
applicability of the exception. "First, a court must consider if "a
federal statute, regulation or policy specifically prescribes a course of
action for an employee to follow.'" Gotha, 115 F.3d at 179 (citing
Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 100
L.Ed.2d 531 (1988)). If such a directive applies, the "employee has no
rightful option but to adhere" to it. Id. As a result, no discretion
exists, thus, rendering the exception inapplicable.
If, however, no directive applies, a court must consider a second
step. Under this step, a court must determine "whether the challenged
action or inaction "is of the kind that the discretionary function
exception was designed to shield.'" Id. (citing Berkovitz, 486 U.S. at
536, 108 S.Ct. 1954). "Under this second prong, the court must determine
whether the challenged discretionary actions or decisions were "based on
considerations of public policy.'" Fisher Bros. Sales, Inc., 46 F.3d at
284. "Public policy" may be social, economic, or political. See Varig
Airlines, 467 U.S. at 808, 104 S.Ct. 2755. "Public Policy" also includes
decisions which further the aims of a governmental agency or
institution. See Chantal v. United States, 104 F.3d 207, 212-13 (8th
Cir. 1997); Redland Soccer Club, Inc. v. Department of Army,
835 F. Supp. 803, 808-09 (M.D.Pa. 1993), aff'd in part and rev'd in
part, 55 F.3d 827 (3d Cir. 1995); Cassagnol-Figueroa
v. United States, 755 F. Supp. 514, 519 (D.P.R. 1991).
Notably, for the exception to apply under this second prong, the
governmental agent need not have subjectively intended to exercise such
discretion. Rather, "the focus of the inquiry is on the nature of the
actions taken and on whether they are susceptible to policy analysis."
United States Gaubert. 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335
(1991) (emphasis added). In other words, the Court should "ask only if
the nature of the action taken, or not taken, is susceptible to policy
analysis — not whether the agency actually contemplated a
decision. Gotha, 115 F.3d at 180 (citing Fisher Bros., 46 F.3d at 284)
(emphasis addled); see also Smith v. Johns-Manville Corp., 795 F.2d 301,
308-09 (3d Cir. 1986) ("The test is not whether the government actually
considered each possible alternative in the universe of options, but
whether the conduct was of the type associated with the exercise of
Pursuant to this two-step inquiry, the Court must determine whether
plaintiffs claim falls within the discretionary function exception. If it
does, the Court must dismiss the case for lack of subject matter
jurisdiction because the United States would be immune from suit.
With regard to the first step, plaintiff concedes that no federal
statute, regulation, or policy directive is directly applicable. As a
result, the first part of the exception is satisfied. The Court's
analysis, thus, focuses solely on the second step.
As to the second step, the Court must determine whether the NPS's
action, or inaction was susceptible to a policy analysis. See Gaubert,
499 U.S. at 325, 111 S.Ct. 1267. In making such a determination, the
Court examines the statutorily prescribed mission and mandate of the
NPS. Pursuant to this NPS mission and mandate, the NPS must "conserve the
scenery and the natural and historic objects . . . and to provide for the
enjoyment of same in such manner and by such means as will leave them
unimpaired for the enjoyment of future generations." 16 U.S.C. § 1
(emphasis added); Baerlin Decl. at ¶ 3.
In light of the NPS's mission and mandate, the Court finds that the
NPS's action regarding the condition of the staircase is susceptible to a
policy analysis. Indeed, the NPS decision to leave the staircase in its
original condition is entirely consistent with its mission to "conserve"
and "leave . . . unimpaired" "historic objects" for "the enjoyment of
future generations." Specifically, the NPS "le[ft] unimpaired" the
staircase in the Officers Quarters, the "character defining feature" of
this historic building. (Baerlin Decl. ¶ 9). The Court cannot now
"second-guess" the NPS's decision to balance the safety benefit of
altering the condition of the staircase with the effect of such changes
on the Officer's Quarters overall design and its historic significance.
Sec Fisher Bros. Sales, Inc., 46 F.3d at 284; Chantal, 104 F.3d at 211
("It is well established that a decision which requires the weighing of
competing interests is `susceptible to policy analysis' and typifies the
kind of governmental decision which congress intended to shield from
judicial second-guessing."). Accordingly, the discretionary function
exception applies, thus, leaving the Court without subject matter
Moreover, because the discretionary function exception applies,
negligence issues are of no moment. "[T]he government can be negligent,
but nevertheless immune from tort liability." See Sea-Land Service, Inc.
v. United States, 919 F.2d 888, 892 (3rd Cir. 1990); see also Nyazie v.
Kennedy, Civ.A. No. 97-0120, 1998 WL 32601. at *4 (E.D.Pa. Jan. 27, 1998)
("Considerations of' negligence are irrelevant to this inquiry.").
Hence, the issue of whether the staircase was improperly maintained
(i.e., the slippery staircase, inadequate lighting, and faulty bannister)
is irrelevant. Indeed, the court refuses and, in fact, cannot examine the
choice to preserve the staircase in its original and allegedly negligent
condition because the NPS's choice, by itself, falls within the
discretionary function exception.*fn4
Many courts have reached similar conclusions in similar cases involving
the NPS. For instance, in Dibartolo v. United States, Civ. No. 95-3182,
slip op. (D.N.J. Oct. 16, 1995) (Barry, J.), plaintiff, like in the
instant case, slipped and fell on stairs at a Historic Landmark which was
within the NPS's control. As she exited the Historic Railway Ticket
Office at Ellis Island, plaintiff slipped on a wet, cast-iron, open-air
staircase. See id. at 4. Plaintiff, suing the government for negligence
under the FTCA, claimed, inter alia, that the stairs were not coated with
a slip-resistant substance. See id. at 4-5.
Judge Barry granted the government s motion to dismiss, finding that
the discretionary function exception applied. See id. at 5-18. The
Dibartolo court reasoned that
the applicable policy mandate was to preserve the
[Historic Landmark] to the greatest extent feasible.
Operating within that policy, however, the NPS
remained free to choose the paint that, in its
judgment, would best protect the historic cast-iron
stairs from the elements. Thus, the decision to apply
a particular paint represented a rho ice made in
furtherance of the public policy with which the NPS
has been charged to effectuate. . . . The fact that
the paint did not contain or was not coated with a
slip-resistant additive goes only to the question of
negligence, not immunity.
Id. at 9.
In the instant case, like in Dibartolo, the NPS chose to preserve the
historic integrity of' the Officer's Quarters by not changing the
condition of the staircase. Having made that decision pursuant to its
congressionally delegated mission, the Court cannot reexamine the NPS's
decision. See also Chantal, 104 F.3d at 211 (finding that the NPS's
decision to not alter steps at a national monument or mark them with a
visual warning involved policy considerations, and thus, the
discretionary function exception barred plaintiffs negligence claim);
Cassagnol-Figueroa, 755 F. Supp. at 518-19 (finding that the NPS's
decision not to install safety features at a low wall of a 450-year-old
fort was based on its mission to preserve historic objects in their
original design and, thus, was a policy-based exercise of discretion).
Plaintiff places undue weight upon a District of Columbia Circuit
decision, Cope v. Scott, 45 F.3d 445 (D.C.Cir. 1995). In that case,
plaintiff sustained injuries in an automobile accident on a NPS roadway.
See id. at 446-47. In responding to an allegation that the NPS failed to
properly place traffic warning signs on the roadway, the court declined to
apply the exception. See id. at 451. The court held that the placement of
warning signs was not "fraught with public policy considerations," in
part, because the government had already posted many traffic warning signs
on this roadway. Id. at 459, 451 (quoting c. United States, 617 F.2d 755,
(D.C.Cir. 1979)). The court reasoned that once the NPS had posted the
signs, it had no protected "discretionary" decision regarding their
placement.*fn5 See id. at 451-52.
The instant case is distinguishable from Cope. First, plaintiff does
not allege a failure to warn.*fn6 Second, the NPS took no steps in
posting warning signs. On the contrary, the NPS choose not to post such
signs. Indeed, such a decision was similar to its choice in refusing to
alter the staircase. See, e.g., Sea-Land Service, Inc., 919 F.2d at
892-93 (holding that the choice not to warn of hazards was similar to the
discretionary policy choice in permitting the hazards and, thus, was
shielded from liability); Dibartolo, at *17 (holding that the "decision
not to place a sign on the stairs in question was . . . susceptible to
the same policy concerns that motivated the overarching restorative
efforts at Ellis Island" and "was, therefore, a matter of choice").
Hence, the reasoning of Cope is inapplicable to the instant case.
Plaintiff also relies on a line of inapposite cases which do not apply
the discretionary function exception. For instance, in Gotha, the Third
Circuit held that the United States Navy's failure to provide safeguards
in a walkway, which resulted in a slip and fall, did not fall within the
discretionary function exception. See Gotha, 115 F.3d at 180. The court
concluded that walkway safeguards were speculative, remote, and "far
removed from the policies applicable to the Navy's mission" to provide a
defense for the nation. See id. at 180-81. Like the Gotha court, the
court in Raymond v. United States, 923 F. Supp. 1419 (D.Kan. 1996), held
that the post office's failure to place a handrail on its steps was not a
discretionary policy choice because it did not implicate the mission or
mandate of the post-office nor did it involve public policy. See also
Gonzalez v. United States, 690 F. Supp. 251 (S.D.N.Y. 1988). Quite
differently, in the instant case, as explored above, the NPS's decision
involving the historic staircase implicated the NPS's very mission and
mandate — the preservation of historic objects. Accordingly, the
discretionary function exception applies. The Court, thus, lacks subject
For the foregoing reasons, the Court will grant the defendant's motion
to dismiss the Complaint, in its entirety, for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil