The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff David Hayes brings this negligence suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et seq., alleging personal injuries caused by the government's failure to warn of and maintain against dangerous conditions on its property. See Compl. ¶ 12(a)-(e). This case is before the Court on the motion of the defendant, the United States, to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, for failure to state a claim under Rule 12(b)(6), or, alternatively, for summary judgment under Rule 56.*fn1 Upon consideration of the motions papers and the entire record, the Court will grant the motion in part and deny it in part.
Rock Creek Park is a federal park within the District of Columbia. The Rock Creek Park Trail is a recreational trail designed for activities such as walking and bicycling. See Coleman Decl. ¶ 5. The events underlying this case took place on a portion of the trail that winds through Rock Creek Park between the National Zoo tunnel and the east entrance of the Zoo. See Hayes Decl. ¶ 4 (citing Hayes Decl. Exs. B-1 to B-41); Def.'s Mot. at 5; see also Hilton Decl. ¶ 10 (stating that the distance between the gate discussed below and the east entrance of the Zoo is approximately 315 yards). This stretch of the trail runs parallel to Beach Drive, a two-lane commuter route that carries high volumes of traffic through Rock Creek Park on a daily basis. See NAT'L PARK SERV., U.S. DEP'T OF THE INTERIOR, ENVTL. ASSESSMENT FOR THE RECONSTRUCTION AND REHAB. OF BEACH DRIVE & ROCKCREEK AND POTOMAC PARKWAY FROM P ST. TO CALVERT ST. 41, 43 (2006) ("EA Report"), Dionne Decl. Ex. D. Throughout the park and parkway, including sections of the trail that run close to Beach Drive, "conflicts," like traffic accidents, are "commonplace" between vehicles and bicyclists or pedestrians. See id. at 46-47.
According to the complaint, plaintiff was riding his bicycle on the Rock Creek Park Trail on Christmas Day, December 25, 2003. See Compl. ¶ 5. He passed the eastern entrance to the Zoo and continued south along the trail towards the Zoo tunnel. See Hayes Decl. ¶ 4 (citing Hayes Decl. Exs. B-1 to B-41); Pl.'s Opp. at 9-10; Def.'s Mot. at 5. At the Zoo tunnel, the trail diverged in two directions, with a narrow portion following Beach Drive through the tunnel and the remaining portion curving west, away from the tunnel. See Hayes Decl. ¶ 4(y). Plaintiff took the portion of the trail that curves west. See Compl. ¶¶ 6-7; Hayes Decl. ¶ 8. Plaintiff claims that as he rounded the curve, he saw a closed, chain-linked gate that blocked the path. See Compl. ¶ 7; Hayes Decl. ¶ 8; Def.'s Statement Of Facts To Which There Is No Genuine Dispute ("Def.'s Statement of Facts") ¶ 17. He further claims that he applied the brakes of his bicycle in an attempt to avoid hitting the gate and was thrown off his bicycle and to the ground. See Compl. ¶ 9; Hayes Decl. ¶ 5.
The Smithsonian Institution, which oversees the Zoo, has jurisdiction over the chain-linked gate. See Hilton Decl. ¶ 2; Hayes Decl. ¶ 4(dd)-(ee); Def.'s Reply at 2 n.1. The National Park Service ("NPS") has jurisdiction over the portion of the Rock Creek Park Trail leading up to the gate. See Coleman Decl. ¶ 2. At the time of the alleged accident, and for many years preceding it, a sign was posted on the fence next to the gate, stating that the National Zoo is closed on December 25. See Compl. ¶ 8; Hayes Decl. ¶ 4(ee); Def.'s Statement of Facts ¶ 16.
On November 5, 2004, plaintiff filed an administrative claim with the Smithsonian, alleging personal injuries and seeking $250,000 in damages. See Standard Form 95, Claim for Damage, Injury, or Death (Nov. 5, 2004) ("SF-95") at 1, Def.'s Ex. 3. The Smithsonian denied the claim on April 26, 2005. See Letter from John E. Huerta, General Counsel for the Smithsonian (Apr. 26, 2005) ("Denial Letter"), Def.'s Ex. 4. This lawsuit followed.
Plaintiff presents two claims. First, plaintiff alleges negligence arising from the government's failure to provide sufficient warning that the gate would be closed. See Compl. ¶ 12(b)-(d). Second, plaintiff alleges negligence arising from the government's failure to inspect and maintain the area where the accident occurred. See id. ¶ 12(a).
The United States is immune from suit unless it waives its sovereign immunity through an act of Congress. See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The Federal Tort Claims Act provides such a waiver in civil damages actions based on "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment[.]" 28 U.S.C. § 1346(b); see F.D.I.C. v. Meyer, 510 U.S. at 475 (FTCA waived sovereign immunity of the United States for "certain torts" committed by federal employees). A waiver of sovereign immunity, however, must be "strictly construed, in terms of its scope, in favor of the sovereign." Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003) (quoting Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999)). A party bringing suit against the United States bears the burden of proving that the government has unequivocally waived its immunity for the type of claim involved. See Tri-State Hosp. Supply Corp. v. United States, 341 F.3d at 575. The burden is on a party asserting jurisdiction under the FTCA to demonstrate that the claim asserted is the kind permitted by statute and that the conduct giving rise to the action occurred within the scope of the government employee's employment. See 28 U.S.C. §§ 1346(b), 2680.
The United States maintains that it has not waived sovereign immunity in this case. See Def.'s Mot. at 7-18. First, it argues that plaintiff has not exhausted his administrative remedies with respect to his failure to maintain claim and that he therefore has not met a necessary precondition of the FTCA. See id. at 7-10. Second, the government contends that the governmental acts challenged by plaintiff fall within the discretionary function exception to the FTCA's waiver of sovereign immunity. See id. at 10-18. The Court addresses each of these points in turn.
This Court lacks subject matter jurisdiction over suits against the United States unless there has been a waiver of sovereign immunity. See F.D.I.C. v. Meyer, 510 U.S. at 475. As a preliminary matter, the Court notes that while the government's motion is captioned "Motion to Dismiss or, in the Alternative, for Summary Judgment," the government's legal arguments are limited to the absence of a waiver by the United States of sovereign immunity. See Def.'s Mot. at 6-18. It is clear, therefore, that the government's motion to dismiss is for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and not for failure to state a claim or for summary judgment.
A. Rule 12(b)(1) Standard
Federal courts are courts of limited jurisdiction. They therefore may hear only cases entrusted to them by a grant of power contained in either the Constitution or in an act of Congress. See, e.g., Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir. 2005); Best v. United States, 522 F. Supp. 2d 252, 254 (D.D.C. 2007); Srour v. Barnes, 670 F. Supp. 18, 20 (D.D.C.1987) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511, (1973)). The United States may be sued for money damages only when it has expressly waived its immunity from suit. See F.D.I.C. v. Meyer, 510 U.S. at 475 (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988)). The ...