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MAALOUF v. SWISS CONFEDERATION
July 3, 2002
KHALIL NICHOLAS MAALOUF, PLAINTIFF,
THE SWISS CONFEDERATION, DEFENDANT.
The opinion of the court was delivered by: Huvelle, District Judge.
Before the Court is the motion to dismiss or for summary
judgment of defendant Swiss Confederation. Defendant argues for
dismissal on the ground that the Court lacks jurisdiction
pursuant to the Foreign Sovereign Immunities Act ("FSIA"),
28 U.S.C. § 1602-1611, and for summary judgment on the ground that
even if jurisdiction exists, Switzerland is not liable because
it did not breach a duty to plaintiff, or because plaintiff was
contributorily negligent. Upon consideration of the pleadings
and the record, the Court will deny defendant's motion.
Plaintiff Khalil Nicholas Maalouf is a 22-year-old citizen of
the United States. Defendant Swiss Confederation is a foreign
state under the provisions of the FSIA.
On February 13, 1992, plaintiff entered the grounds of the
Swiss Embassy in the District of Columbia with a friend to go
sledding on the Embassy's hills. (Complaint ¶ 2.) At the time,
plaintiff was 12 years old. Area residents were allowed to sled
on Embassy property (Answer ¶ 2), and plaintiff entered through
an open gate. (Pl.Ex. 1, Deposition of Khalil Maalouf ("Maalouf
Dep.") at 84:6-7.) Several other
children were sledding and playing on the Embassy's grounds at
the time. (Maalouf Dep. at 157:13-22, 158:1-3). Plaintiff first
went sledding down the right side of the slope (Maalouf Dep. at
111:17-20), using a flat plastic sled without a steering device
(Pl.Ex. 2, Deposition of David Martin at 10:16-23), and then
decided to sled down the left side. As plaintiff was sledding
down the left side of the slope, in the direction of a snow ramp
(Maalouf Dep. at 141:4-7), his leg struck a guide wire attached
from a tree to the ground, and he suffered severe injuries. The
tree was less than 30 feet from the left of the snow ramp
(Maalouf Dep. at 132:19-20), and the guide wire was attached to
the tree two or three meters above the ground (Affidavit of
Lincoln Diaz ("Diaz Aff.") ¶ 4), secured to the ground by a
metal pipe approximately eight feet uphill from the tree.
(Maalouf Dep. at 135:9-11.) Plaintiff claims that he was unaware
of the wire before the accident occurred. (Maalouf Dep. at
155:5-9.) The wire was light gray (Maalouf Dep. at 137:7-13),
and had been attached in 1988 or 1989 by an Embassy maintenance
worker, after the Swiss Ambassador expressed concern that the
tree, which leaned downhill, would fall. (Diaz Aff. ¶ 2.)
Defendant claims that at the time that the maintenance worker
installed the wire, he attached a brightly-colored ribbon to it
(Diaz Aff. ¶ 4), but plaintiff alleges that no ribbon was
visible when the accident occurred. (Maalouf. Dep. at 136:39.)
Prior to plaintiffs sledding accident, no accidents involving
the wire had been recorded. (Diaz.Aff. ¶ 8.) Plaintiff now seeks
damages based on defendant's negligence, both in maintaining the
wire and in failing to warn of its existence.
I. Immunity Under the FSIA
Defendant has moved to dismiss plaintiffs claim on the ground
that it is immune under the FSIA. That statute grants immunity
from the jurisdiction of federal and state courts in the United
States to foreign sovereigns, subject to several exceptions.
See 28 U.S.C. § 1602-1611. Specifically, 28 U.S.C. § 1605
waives jurisdictional immunity for claims of money damages for
personal injury or death, unless, inter alia, the case "is
based upon the exercise or performance or the failure to
exercise or perform a discretionary function regardless of
whether the discretion be abused. . . ." The burden of proof is
on the defendant to demonstrate by a preponderance of the
evidence that the discretionary exception applies. See, e.g.,
Faber v. U.S, 56 F.3d 1122, 1124 (9th Cir. 1995). A similar
discretionary function clause in the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 2680, served as a model for the FSIA
clause, and interpretations under FTCA are therefore applicable
to the FSIA. See, e.g., MacArthur Area Citizens Ass'n v.
Republic of Peru, 809 F.2d 918, 921-22 (D.C.Cir. 1987).
The Supreme Court has established a two-step process for
identifying a discretionary function under the FTCA. First, a
court must determine whether there was a specific regulation
mandating action in the case, leaving the government actor with
no discretion as to how to proceed. See, e.g., Cope v. Scott,
45 F.3d 445, 448 (D.C.Cir. 1995); Berkovitz by Berkovitz v.
U.S, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).
If such a regulation exists, the government action is not
discretionary, and immunity therefore does not attach. If there
is no such regulation, however, immunity exists only if the
"discretionary acts of a government employee `are of the nature
and quality that Congress intended to shield from tort
liability,'" Cope, 45 F.3d at 448 (quoting United States v.
Varig Airlines, 467 U.S. 797, 813, 104 S.Ct. 2755, 81 L.Ed.2d
660 (1984)), and if the granting of immunity would be consistent
with Congress's intention "to prevent `second-guessing' of
legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action
in tort." Varig, 467 U.S. at 798, 104 S.Ct. 2755. The analysis
should focus on whether "decisions based on considerations of
public policy" are involved, Berkovitz, 486 U.S. at 537, 108
S.Ct. 1954, because "[o]nly discretionary actions of greater
significance" should have immunity. Cope, 45 F.3d at 448. See
United States v. Gaubert, 499 U.S. 315, 325 n. 7, 111 S.Ct.
1267, 113 L.Ed.2d 335 (1991) (noting that a negligent government
driver would not fit the discretionary exception regardless of
the fact that he had a choice about how to drive).
It is undisputed that in the instant case, neither the
decision to protect the leaning tree nor the decision not to
warn sledding children of the potential danger was controlled by
regulation. Both decisions were therefore discretionary under
the first prong of the test. Defendant argues that these
decisions were also discretionary under the second prong,
because they were of the type Congress intended to protect under
the FSIA, involving financial considerations and policy
decisions about the nature and character of the Embassy grounds.
Plaintiff disagrees, arguing that the installation of a guide
wire and the failure to warn did not implicate public policy
A. Maintenance of the Guide Wire
When it installed the wire to secure its tree, defendant was
acting as a private landowner, and the discretionary exception
does not extend to such decisions.*fn1 "In cases where the
government is alleged to have committed negligence in the
performance of a function such as that performed by a private
citizen, rather than in the fulfillment of a broad policy-making
duty, the government is subject to suit." Faber, 56 F.3d at
1124 (no immunity applied because Forest Service decisions to
improve diver safety did not involve broad policy
considerations). See Gonzalez v. U.S., 690 F. Supp. 251, 255
(S.D.N.Y. 1988) (no immunity applied when a stanchion fell on
plaintiff in a post office, because the relevant decision did
not arise from the agency's "statutory mission"); Andrulonis v.
U.S., 593 F. Supp. 1336, 1338 (N.D.N.Y. 1984) (no immunity
applied to a government scientist's conduct because his
decisions involved "the exercise of professional and scientific
judgment rather than policymaking"). Contrary to defendant's
contention (Def. Mem. at 10), the fact that the Embassy's
property is not maintained for public use supports the result
reached here, because the decision regarding protection of the
tree was clearly related to defendant's role as a landowner, and
not a result of any policy-making duties of a governmental
body.*fn2 Because the Swiss
government was acting in a private capacity in installing the
guide wire, holding it liable would not lead to
"`second-guessing' of legislative and administrative decisions
grounded in social, economic, and political policy," as Congress
feared. Varig, 467 U.S. at 798, 104 S.Ct. 2755.
Defendant also cites MacArthur, in which a neighborhood
association brought an action against the Republic of Peru for
negligence in the construction of a chancery in the District of
Columbia. 809 F.2d 918. There, this Circuit held that "[i]t is
beyond serious question that establishing a chancery in the
District of Columbia to conduct foreign relations is a
discretionary public policy decision and that this decision
undergirds the specific acts which the Association bewails."
Id. at 922. The attachment of a retaining wire to a tree on
Embassy property is not comparable, however, to the construction
of a new government building; the former is the type of minor
grounds maintenance that a private landowner would undertake,
while the latter implicates much broader considerations of
budgetary constraints, security concerns, and political concerns
regarding the image the foreign government wishes to project.
See MacArthur, 809 F.2d at 923.
The discretionary exception does not generally apply to a
failure to warn in this case. "It is clear that the question of
what constitutes adequate warning is not typically related to
broad public policy . . . [a] failure to warn involves
considerations of safety, not public policy." Faber, 56 F.3d
at 1125. Courts therefore have found that an underlying decision
to create a dangerous condition was discretionary even where the
decision not to warn the public of the danger was not
discretionary. See, e.g., Cope, 45 F.3d at 450-52 (holding
that the decision not to provide increased skid resistance on a
park road was discretionary, but that the failure to post
warning signs was not; since the park was not maintained for
aesthetic purposes, the decision not to post warning signs
involved no significant public policy considerations);*fn3
W.C. & A.N. Miller Companies v. United States, 963 F. Supp. 1231
(D.C. 1997) (holding that while decisions regarding the
disposal of munitions were discretionary, the decision not to
warn the public
about the buried munitions was not discretionary).
Thus, the applicability of the discretionary function
exception to a failure to warn "must be limited to those unusual
situations where the government was required to engage in broad,
policy-making activities or to consider unique social, economic,
and political circumstances in the course of making judgments
related to safety." Faber, 56 F.3d at 1125. Compare Wells v.
United States, 851 F.2d 1471 (D.C.Cir. 1988) (holding that
EPA's decision not to warn residents about lead pollution was
discretionary because it involved important policy
considerations affecting the "feasibility and practicality of
the Government's regulatory program" (quoting Cisco v. United
States, 768 F.2d 788, 789 (7th Cir. 1985))) with Boyd v.
United States, 881 F.2d 895, 898 (10th Cir. 1989) (holding that
the government's decision not to warn swimmers about potential
dangers was not discretionary, since it did "not implicate any
social, economic, or political policy judgments with which the
discretionary function exception properly is concerned").
In the instant case, defendant can point to no important
political, social, or economic considerations involved in its
decision not to warn plaintiff about the guide wire. Just as
defendant's decision to maintain the guide wire was private ...