The opinion of the court was delivered by: HOLTZOFF
This is an action against the United States under the Federal Tort Claims Act to recover damages for personal injuries sustained by the female plaintiff, Helen E. McNamara, and for loss of services suffered by her husband, John P. McNamara, the male plaintiff, as a result of his wife's injuries.
The facts out of which this case arose are not in dispute. The two plaintiffs and their son were visitors to Washington on the day in question in this case. As is true of numerous sightseers, they went to see the Capitol. They were walking along the corridor leading from the center of the building to the Senate wing. As they walked along, Helen McNamara slipped and fell on the floor near the point where there is a door from the corridor leading to the Senate Restaurant. She sustained serious injuries as a result of her fall.
This suit is grounded on alleged negligence on the part of the United States in the maintenance of the floor of the Capitol building where the female plaintiff fell. It is claimed that the floor, through the course of time, had become somewhat worn and uneven and, therefore, dangerous to passersby, and that this condition had reached such a degree as to constitute a violation of the duty of the Government to keep the place in a reasonably safe condition for those who were going to use it. There is no claim that there was any foreign substance on the floor or that anything else caused the plaintiff to fall except that the floor had become slippery, worn and dangerous as a result of continuous wear by millions of pedestrians over the many years of the existence of the Capitol.
At the outset of the trial the Government interposed two preliminary objections concerning which a word should be said. The first objection was that this action did not lie as a matter of law in that the scope of the Federal Tort Claims Act was limited to the Executive Branch of the Government and did not comprise the activities of the Legislative or Judicial Branches. The Court overruled this objection and is adhering to its ruling, after further consideration.
The Federal Tort Claims Act is a comprehensive statute, the purpose of which was to waive governmental immunity to suit in tort which this country originally inherited from the immunity accorded to the King of England, and it might be said in passing that the British Sovereign has also waived immunity to suit in tort some years ago. The Act was a far-reaching reform in jurisprudence. It was the work of many minds over many years, and unlike other statutes waiving governmental immunity to suit in specific matters, this statute should receive and has received a liberal construction. When we look at the phraseology of the statute it is not limited to the Executive Branch of the Government. It refers to the liability of the United States (28 U.S.Code, § 1346) and to the negligent or wrongful act or omission of any employee of the Government. There is no limitation there to the Executive Branch of the Government or to the employees of the Executive Branch of the Government.
Finally, there is no legislative history indicating any desire or intention to limit the statute in the manner contended in this case. It is the view of this Court that to adopt such a narrow limitation would defeat a part of the beneficent purposes of the statute. For this reason, the Court adheres to its ruling that the statute applies to all three branches of the Government.
The second preliminary objection was of a different nature. While the Federal Tort Claims Act constitutes a general waiver on the part of the Federal Government of immunity to suit in tort, there are certain torts that are expressly excepted from the Act. They are listed in 28 U.S.Code, § 2680. The Court is of the opinion that these exceptions should be narrowly construed. One of the exceptions contained in Paragraph (a) of this Section is a claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty. This clause has been somewhat troublesome because its meaning is, at times, difficult to discern. Does it mean that no claim can be predicated on an error of judgment in determining whether to perform or not to perform a function that is discretionary, or does it mean, as well, negligence in the performance of such a function? The Court is of the opinion that the phrase should be limited to the first alternative. It is inconceivable that if the Government undertakes to perform a discretionary function and does it negligently, thereby injuring somebody, such an act should be excepted from the Federal Tort Claims Act.
It is not necessary, however, for the purposes of this case to determine the exact meaning of the words discretionary function or duty. It may be that designing a building is a discretionary function, but maintenance of a safe condition within a building is not a discretionary function. By way of illustration the Court might refer to its decision, when sitting in the Southern District of California, in Peets v. United States, D.C., 165 F.Supp. 177, in which the plaintiff was awarded damages for personal injuries caused by an unsafe condition of a ramp leading from a public building on a military base. Consequently, the Court is of the opinion that this case is not within the exception of discretionary duties or functions and, therefore, adheres to its ruling made at the opening of the trial overruling this objection on the part of the Government.
This brings us to the merits of this case, and this case should be and will be decided on the merits. Under the Federal Tort Claims Act the Government is liable in the same manner and to the same extent as would be a private individual under like circumstances. The substantive rights of the plaintiff and of the defendant in such a case must be measured by the law of the state in which the cause of action arose. In this instance, it is the District of Columbia. Consequently, the tort law of the District of Columbia governs the plaintiffs' rights and the defendant's liabilities.
Counsel for the plaintiffs cogently argued that the liability of the defendant in this case would be somewhat similar to the liability of an owner of a building that the public was invited to use. The Court considers this analogy a reasonable one and applicable here. There is, however, one difference that must be considered, though this distinction, as the Court indicated during the oral argument, is not decisive. Under the law of the District of Columbia a sightseer in a public building is not an invitee but is a licensee by invitation. Firfer v. United States, D.C.Cir., 208 F.2d 524, 527, 528. In this respect a sightseer in a public building differs from a customer in a store because a customer in a store is an invitee. The Court is of the opinion however, that the same result would be reached whether these plaintiffs are regarded as invitees or licensees by invitation and, therefore, will give no further consideration to that distinction beyond having pointed it out.
Passing now to the duty of a person who either owns or operates real property into which he invites the public to enter, be it an office building, a store or a building housing a Government department, it is well settled in the District of Columbia that the owner or the operator of such premises is not an insurer of the safety of the property to all persons entering it, but is only under a duty to maintain it in a reasonably safe condition. Brodsky v. Safeway Stores, 80 U.S.App.D.C. 301, 152 F.2d 677; F. W. Woolworth v. Williams, 59 App.D.C. 347, 41 F.2d 970.
There is another line of cases that is analogous. They involve the duty of the District of Columbia to maintain streets and other highways in a reasonably safe condition. There, too, it is held that the District of Columbia is not an insurer of the safety of every passerby, but is liable only for failure to maintain the streets and highways in a condition that is reasonably safe. Thus, in Campbell v. District of Columbia, 64 App.D.C. 375, 378, 78 F.2d 725, 728, Judge Groner said:
'The District is not an insurer of the safety of travelers upon its streets. It is a sufficient discharge of its duty if it maintains its streets and roadways in a reasonably safe ...