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MAALOUF v. SWISS CONFEDERATION

July 3, 2002

KHALIL NICHOLAS MAALOUF, PLAINTIFF,
V.
THE SWISS CONFEDERATION, DEFENDANT.



The opinion of the court was delivered by: Huvelle, District Judge.

    MEMORANDUM OPINION

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.

BACKGROUND

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.

LEGAL ANALYSIS

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 considerations.

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.

B. Failure to Warn

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 ...


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