The opinion of the court was delivered by: CURRAN
This action against the United States under the Federal Tort Claims Act seeks to recover damages for personal injuries sustained by the plaintiff as a result of a fall on steps in the fountain area facing the north door of the Museum of History and Technology of the Smithsonian Institution, an entity of the United States Government. The court has jurisdiction under 28 U.S.C. § 1346(b).
The plaintiff, Hazel D. Watt, a resident of New York, New York, had visited the Museum with her daughter and departed through the north door at about 2:45 p.m. on April 16, 1975, a sunny, clear and dry day. The two crossed a concrete sidewalk and curving asphalt driveway and entered the fountain area, descending two small steps. They were then standing on the uppermost of three levels of semicircular granite platform steps. The daughter, Ann Wiechmann, proceeded to the street to summon a taxicab while the plaintiff remained standing in the position just described. After waiting awhile, the plaintiff decided to join her daughter on the street and walked to the right a short distance when she suddenly fell and fractured her right elbow. The plaintiff was wearing shoes with a 1 1/2 inches heel, composition soles, rubber heels, and equipped with rubber preservers at the toe and heel.
The semi-circular platform steps around the circumference of the fountain are constructed of variegated granite. The riser of each step is approximately 5 3/8 inches high and the tread is approximately 10 feet deep. On April 16, 1975, there were no cautionary signs warning pedestrians of the existence of the platform steps, nor were there stripes or other markings at the edge of the platform steps. The plaintiff's fall occurred at the edge of the top platform step.
The plaintiff alleges that the pedestrian walkway around the fountain was unreasonably dangerous because of the difficulty presented in visually detecting the presence of the platform steps. Additionally no warning was posted to alert pedestrians of the existence of the platform steps. The plaintiff's allegations include negligence in the design, construction and maintenance of the platform steps and a failure to exercise reasonable care.
The plaintiff testified that she did not see and was not aware of the presence of steps as she walked along the top platform step. She was looking ahead but not at the ground. She was aware that she was at a slightly higher elevation than the street, but it was not apparent to her that the downgrade was accomplished by steps rather than a ramp.
Expert testimony was presented by both parties. A psychologist and human factors specialist called by the plaintiff testified that the variegated granite presented a visual dilemma because of its texture and because the sharp edges of the rectangular platform blocks with grouting between them do not provide a contrast to the edge of the step. A person should be able to distinguish a step when three to four strides away, and at the area where the fall occurred, one does not receive a visual cue of the existence of a step until only one stride away.
An architect testified that the fountain area is designed so as to invite people to walk through but it is unsafe. A change in grade creates a hazard and unless steps are uniform and readily discernible, they are defectively designed.
Evidence was also received of observations made of use by the public of the fountain area. In a two-hour period, two hundred ninety-seven persons descended the steps, of which number thirty-one tripped and one fell. Additionally, the supervisor of the Museum's security office had requested three months before Mrs. Watt's fall that the feasibility be investigated of installing stripes on the steps because of the frequency of falls. Among the documentary evidence was the architect's memorandum of January 4, 1966, indicating the concern of General Services Administration officers regarding the design of single steps on the semi-circular sides of the pool and suggesting the use of ramps or pairs of risers as means of reducing the possible hazard. The comment concluded with this sentence, "However, GSA approval of the design will not be withheld on this account".
The government presented evidence of the millions of persons who visit the Museum yearly and in the six years between construction of the fountain area and plaintiff's fall, no reports had been received of falls on the platform steps. The architect who had ultimate responsibility for approving the Museum design for General Services Administration testified, as did a human factors specialist, who advised the court that the fountain area platform steps were safe when designed in 1966 according to the state of knowledge at that time on human locomotion. He admitted on cross examination that by the standards of today, the steps are a hazard and there is visual difficulty in approaching the platform steps.
Stipulated facts include the following:
The fountain area, including the platform steps, was in the same condition on April 16, 1975, as it was when construction was completed and it was opened to the public in January, 1969. No repairs, alterations or other work were performed in the area in question from completion of construction until June, 1977. The visual appearance of the fountain area ...