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Merry v. National Park Service

United States District Court, District of Columbia

October 25, 2013

Nicola Merry, Plaintiff,
v.
National Park Service, Defendant

Page 91

NICOLA MERRY, Plaintiff, Pro se, Los Angeles, CA.

For NATIONAL PARK SERVICE, Defendant: Wynne Patrick Kelly, LEAD ATTORNEY, U.S. Attorney's Office, Civil Division, Washington, DC.

OPINION

Page 92

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge.

While visiting Ford's Theater on June 16, 2011, plaintiff, a resident of Los Angeles, California, alleges that she slipped and fell down 20 steps and suffered " massive bruising down the entire right side of [her] body and head." Compl. at 1, 2. Plaintiff sues the National Park Service (" NPS" ), as manager and operator of the Theater, for negligence. She blames her fall on " the dim lighting in the stairwell, lack of signage advising of such, . . . lack of crowd control at the door to the stairwell, and lack of verbal instructions from the Guard . . . ." Id. at 2.

NPS moves to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Def.'s Mot. to Dismiss Pl.'s Compl. [Dkt. # 7]. Plaintiff has filed a cursory opposition [Dkt. # 9], and NPS has replied [Dkt. # 10]. [1] In addition, plaintiff has moved (1) to amend the complaint [Dkt. # 12], (2) for an enlargement of time to research her case and conduct discovery [Dkt. # 13], and (3) to subpoena records [Dkt. # 17], and defendant has opposed those motions. See Def.'s Opp'n to Pl.'s Mot. to Amend Her Compl. and Mot for Exten. of Time to Take Discovery [Dkt. #15]; Def's Opp'n to Pl.'s Mot. for Order to Subpoena Records or Take Discovery and Response to Pl.'s Supp. Mem. [Dkt. # 19]. Upon consideration of the parties' submissions, the Court will grant defendant's motion to dismiss under Rule 12(b)(1) and will deny plaintiff's motions as moot.

Page 93

BACKGROUND

Plaintiff alleges the following. On June 16, 2011, she entered the lobby of Ford's Theater with approximately 200 other visitors. " The group was directed . . . [to] the right side [of the lobby] where a guard stood next to a roped area." Compl. at 1. The guard " let everyone through at once [without] cautions or directions . . . ." Id. As the group entered a doorway, " the light grew dimmer . . . and right away [plaintiff] realized [that she] was at the top of a circular stairwell . . . which was very narrow." Id. at 1-2. Plaintiff then " fell down a flight of 20 steps and landed at the bottom." Id. at 2. Plaintiff states that " [i]t was dark in the theater. I staggered to my feet dazed and very dizzy. Nobody came to help me." Id. Plaintiff " managed to get . . . across the room in the dark to a ramp and out of a door which led into the street. I could barely see, I wanted to pass out." Id. Eventually, plaintiff was taken by ambulance to Howard University Hospital where she was treated for " massive bruising down the entire right side of [her] body and head." Id.

Plaintiff alleges that when she returned to Los Angeles, she made two visits to hospital emergency rooms for dizziness and nausea. She was diagnosed " with a head injury, concussion [and went] for physical therapy and treatment . . . for several months." Id. Plaintiff was " unable to perform her normal work . . . of a part time tour guide[, and] [a]ny work . . . perform[ed] was excruciating." Id. Plaintiff exhausted her administrative remedies with NPS in June 2012 and filed this civil action on January 7, 2013.

DISCUSSION

" The United States is protected from unconsented suit under the ancient common law doctrine of sovereign immunity." Shuler v. U.S . 531 F.3d 930, 932-33, 382 U.S.App. D.C. 201 (D.C. Cir. 2008) (quoting Gray v. Bell, 712 F.2d 490, 506, 229 U.S.App. D.C. 176 (D.C. Cir. 1983)). Through the Federal Tort Claims Act (" FTCA" ), the United States has consented to be sued for money damages for certain torts under certain conditions. See 28 U.S.C. § § 1346(b)(1), 2671-80. NPS argues that sovereign immunity bars this suit because plaintiff's claim falls under ...


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