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December 15, 1993

Robert F. Warren and Caroline S. Warren, Plaintiffs,
The United States of America, National Park Service, Department of the Interior, Defendants.

The opinion of the court was delivered by: JUNE L. GREEN

 On June 24, 1989, plaintiff Robert Warren sustained a devastating injury to his cervical spine causing quadraparesis. *fn1" Mr. Warren brought this action under the Federal Tort Claims Act ("FTCA") against the National Park Service ("NPS") alleging that his injury was caused as a result of falling from a set of stairs, negligently maintained by NPS, located by a creek or stream in the Battery Kemble Park section of Rock Creek Park. Mr. Warren's wife, Mrs. Caroline Warren, asserted a claim for loss of consortium. The government defended the action, in part, presenting evidence that plaintiff did not fall from the stairs, but fell while attempting to cross the creek by traversing a fallen tree, situated about ten feet from the stairs, that formed a natural bridge over the creek.

 The case was tried before the Court on July 23 through August 5, 1993. After considering all the testimony, exhibits and arguments presented, the Court concludes that the government is not liable in this case because the plaintiff has failed to carry the burden of proving the factual predicate to his claim; that is, that his injury resulted from falling off of the stairs.

 The Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

 I. Findings Of Fact

 At the time of the accident, Mr. Warren was 60 years old. He was physically fit, jogging an average of three times a week as well as regularly engaging in sports activities such as soccer and tennis. On Saturday, June 24, 1989 Mr. Warren awoke, ate breakfast alone and set about working on a home project of cleaning out and rearranging the garage storage room of his house.

 Mr. Warren completed the project in the late afternoon and, having no tennis or soccer game that day, decided to go jogging. He drove to 49th Street in Northwest District of Columbia and parked at one of the entrances to Battery Kemble Park near a dam. He entered the park, crossing over the small concrete dam and jogged along a trail to MacArthur Boulevard. From there he jogged to a point near the intersection of Foxhall Road and Nebraska Avenue where he doubled back along the trail toward the location of his car on 49th Street. In order to get from the trail back to 49th Street it was necessary to cross a creek. Mr. Warren decided to cross the creek at point known as the Wesley Heights Trail connector, located south of where he had entered the park.

 What Mr. Warren did at this point was the most important factual inquiry in the case; that is, whether he descended upon and then fell from the set of stairs constructed of railroad ties which was built into the embankment leading down to the creek, or, whether he attempted to cross the stream over a fallen tree which bridged the creek about ten feet from the location of the stairs.

 The Court finds that Mr. Warren failed to establish by a preponderance of the evidence that he fell from the stairs. While it is undisputed that Mr. Warren was alone at the time of his accident and that no other persons witnessed the event, Mr. Warren was unable to recall at trial how the injury occurred and whether his accident was caused by the condition of the stairs.

 Mr. Warren testified that he finished his running and started to take the trail leading over to 49th Street. See Trial Transcript (hereinafter "Tr."), July 27, 1993, Volume III, p. 22. He said he observed some steps that were "quite steep" leading down the embankment to the stream and that he "started down those." Id. at 22-23. The next thing he recalled was the feeling that he was lying on the ground unable to move his legs to get up. He said he was scared and that he was "conscious enough to realize that I had to get help and to call out and try to continue calling." Id.

 Mr. Warren said he did not remember anything else about the injury. Id. He did not remember how many stairs he descended, the location on the stairs from which he fell, or where he landed when he fell. Id. at 23, lines 4-13. Mr. Warren also testified that he did not remember speaking with any physicians while in the emergency room of the hospital after the accident. Id. at 24.

 Plaintiffs introduced expert testimony that given the condition of the stairs, it was more likely than not that Mr. Warren fell off the step identified as step No. 5 on a diagram of the stairs received as Plaintiff's Exhibit 2. This testimony does not establish the cause of injury, however, absent a factual basis for concluding that Mr. Warren's accident occurred upon the stairs.

 To that end, an expert witness, called by the Plaintiffs, offered the opinion that based upon the nature of the injury and the position in which Mr. Warren was found when he was rescued one can conclude that he fell from the stairs. The expert, Dr. Leon Kazarian, a biomechanical consultant, said that Mr. Warren's injury must have occurred from a forward fall, head-first, into a sandy area of the creek bed. See Tr., July 26, 1993, at 29. The Court was ultimately not persuaded by Dr. Kazarian's theory because it was internally inconsistent and grounded upon assumptions that were not borne out by the evidence later admitted at trial.

 For example, while Dr. Kazarian theorized that the fall must have been a forward one, he did not explain how Mr. Warren ended up lying in an area to the left of the stairs, as opposed to the area in front of, or forward of the base of the stairs. He reasoned that Mr. Warren fell to the left side because the photographs demonstrated that the area to the left contained sand, whereas "if he went forward he would have impacted the steps -- into rocks." Id. Dr. Kazarian also did not reconcile his theory of a forward fall with the fact, as conveyed by Captain ...

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