United States District Court, District of Columbia
MEMORANDUM OPINION DENYING DEFENDANT'S MOTION TO
DISMISS WITHOUT PREJUDICE
RUDOLPH CONTRERAS United States District Judge.
Becky Wesberry and Jim Wesberry (collectively, the
“Plaintiffs”) bring this personal injury action
against the United States. The Wesberrys, a married couple
from Texas, allege that Becky Wesberry fell and sustained
serious injuries when leaving Ford's Theatre, the
historic site of President Abraham Lincoln's
assassination on April 14, 1865. The United States National
Park Service, an agency of the United States Department of
the Interior, is responsible for administering the Theatre.
The Wesberrys assert a negligence claim against the United
States under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671,
and also seek damages for Jim Wesberry's loss of
consortium due to his wife's injuries.
the filing of an Amended Complaint, the United States moved
to dismiss. The government argues that the Wesberrys'
claims are barred by sovereign immunity and that they fail to
state a claim upon which relief can be granted. In their
opposition to the government's motion, the Wesberrys
request leave to conduct jurisdictional discovery.
reasons stated below, the Court finds that the discretionary
function exception to the FTCA may bar the Plaintiffs'
claims. Specifically, the Court finds that the National Park
Service's decisions with regard to warning signs,
handrails, and other safety features are grounded in public
policy. However, at this time, the Court finds that it would
be premature to determine whether any binding mandate governs
the agency's decision-making process. Instead, the Court
will allow Plaintiffs to conduct strictly limited
jurisdictional discovery on that question. Discovery will be
permitted only on whether a mandatory directive governed the
National Park Service's acts or omissions, and, if such a
directive existed, whether government employees followed its
command. Thus, the Court will deny the government's
motion, without prejudice, and permit the government to move
for dismissal following jurisdictional discovery, if it
chooses to do so.
Becky Wesberry's Injury
to the Amended Complaint, Plaintiffs Becky Wesberry and Jim
Wesberry visited Ford's Theatre in Washington, D.C., on
April 28, 2014. See Am. Compl. ¶ 9, ECF No. 9.
After spending time in the Ford's Theatre Museum,
Plaintiffs exited the building through one of five doors
leading to the street. Id. ¶¶
11-13. The exit Plaintiffs used consisted of two
low-rise steps, which did not have a handrail, leading to a
sloped brick sidewalk. Id. ¶¶ 17-18. Becky
Wesberry was unaware of the steps when she exited the
building and she fell to the ground. Id.
¶¶ 19-20. The fall caused “multiple facial
lacerations, ” as well as a loss of consciousness.
Id. ¶ 20. National Park Service Rangers
provided initial care until the District of Columbia Fire and
Emergency Medical Services arrived to transport Becky
Wesberry to George Washington University Hospital in an
ambulance. Id. ¶¶ 21-22. Because of the
fall, Becky Wesberry suffered a broken hip, “which
required extensive surgery and a prolonged hospital
stay.” Id. ¶ 23. Becky Wesberry also
received ongoing physical therapy and psychiatric treatment
after returning home to Texas. Id.
Plaintiffs' Amended Complaint includes two Counts. Count
I alleges that the negligence of the United States caused
Becky Wesberry's injuries. Id. ¶¶
24-28. Specifically, Plaintiffs claim that the United States
breached its duty of care through a number of alleged acts or
(a) failure to provide hand rails . . .;
(b) failure to assure steps were properly proportioned;
(c) failure to provide slip-resistant stairs . . .;
(d) failure to mark, warn, or otherwise indicate an unsafe or
dangerous condition . . .;
(e) failure to provide an adequate pedestrian pathway and/or
stairway to the street and/or other areas . . .;
(f) failure to utilize signs, barriers, observable markers
(e.g. stairway lighting), and/or bright paints . . .;
(g) failure to construct or maintain sidewalks and/or steps
in conformity with nationally recognized safety standards,
including but not limited to the National Fire Protection
Association (“NFPA”) standards . . . .
Id. ¶ 26. Count II of the Amended Complaint
seeks damages for Jim Wesberry's loss of consortium due
to Becky Wesberry's injuries. Id. ¶¶
Theatre is administered by the National Park Service as a
historic site within the National Mall and Memorial Parks
Area. See Def.'s Mot. Dismiss Ex. 1
Decl. of Karen Cucurullo (“Cucurullo Decl.”)
¶ 3, ECF No. 12-1. In 1968, the National Park Service
re-opened Ford's Theatre to the public after attempting
to restore it to the state in which it operated on the night
President Lincoln was assassinated. Id. ¶ 4.
Today, Ford's Theatre includes a museum dedicated to the
Theatre's history and legacy, as well as a working venue
for theatrical performances. Id.
Organic Act requires the National Park Service to manage the
National Park System in a manner that conforms to the purpose
of the parks, which is to “conserve the scenery,
natural and historic objects, and wild life in the System
units and to provide for the enjoyment of the scenery,
natural and historic objects, and wild life . . . as will
leave them unimpaired for the enjoyment of future
generations.” 54 U.S.C. § 100101(a). Ms. Cucurullo
declares that Ford's Theatre is managed in a manner
consistent with those objectives. See Cucurullo
Decl. ¶ 5. The National Park Service “vests
decision-making authority, ” including “public
safety-related decisions, ” in park superintendents.
Id. ¶ 6. Specifically, National Park Service
policies provide that the “means by which public safety
concerns are to be met is left to the discretion of the
superintendents and other decision-makers at the park
level.” Id. (quoting Cucurullo Decl. Ex. A at
5, ECF No. 12-2 (National Park Service Management Policies
ch. 8.2.5)). Other National Park Service guidelines explain
that park superintendents “must make discretionary
decisions that balance public recreation and safety with
preservation of the protected natural, historic, or cultural
setting.” See Cucurullo Decl. Ex. B at 2, ECF
No. 12-3 (National Park Service Director's Order 50C);
see also Cucurullo Decl. ¶ 6 (quoting a portion
of Order 50C).
Ford's Theatre facade includes five doors that exit from
the lobby onto 10th Street, Northwest. See Am.
Compl. ¶¶ 12-13; Cucurullo Decl. ¶ 7. Each
exit steps down to the sidewalk at street level. See
Am. Compl. ¶ 13; Cucurullo Decl. ¶ 7. Because the
sidewalk below the exits is on a slope, the number of steps
is not uniform from exit to exit. See Cucurullo
Decl. ¶ 7; see also Am. Compl. ¶ 17
(noting slope). The first and second exits (counting from
left to right) did not feature handrails, but the remaining
three did include handrails. See Cucurullo Decl.
¶ 8. In the 1860s, none of the exits at
Ford's Theatre had handrails. See Id. ¶ 9;
see also Am. Compl. ¶ 16 (alleging handrails
were installed after the Theatre was built). In fact, in
their opposition to the motion to dismiss, Plaintiffs provide
evidence, including photographs, that some of the exits were
originally large, arched windows. See Pls.' Mem.
P. & A. Opp'n Def.'s Mot. Dismiss
(“Pls.' Opp'n) at 5, ECF No. 14; Pls.'
Opp'n Ex. 1 at 3, ECF No. 14-2 (including a photograph of
Ford's Theatre taken in the 1930s). The government does
not challenge the veracity of those photographs, but does
note that they were taken before the National Park Service
took control of Ford's Theatre. See Def.'s
Reply Mem. Supp. Def.'s Mot. Dismiss (Def.'s Reply)
at 12-13, ECF No. 17. When the Theatre was re-opened under
National Park Service control in 1968, none of the five exits
had handrails. See Cucurullo Decl. ¶ 9;
accord Am. Compl. ¶ 16 (alleging handrails
“were installed after the Theatre was built”).
According to the government's declarant, a review of
National Park Service files did not reveal project documents
related to the installation of the handrails, but a review of
photographs indicated that the existing handrails were
installed sometime between 1968 and 1996. See
Cucurullo Decl. ¶ 10.
inside the lobby, each of the five exits is marked with a
lighted “Exit” sign. Id. ¶ 11.
According to Ms. Cucurullo, the use of signs and visual
warnings at sites managed by the National Park Service is
guided by the “longstanding [National Park Service]
policy to minimally intrude upon the natural or historic
setting in National Park System areas, and to avoid an
unnecessary proliferation of signs, while striving to ensure
the safety of park visitors.” Id. ¶ 12
(quoting National Park Service Sign Manual at
1-1). Ms. Cucurullo also declares that
“[n]o law, regulation, or policy mandates how the
[National Park Service] has designed or maintained the
signage in Ford's Theatre, ” and that the National
Park Service is free “to choose to minimize the amount
of signage and warnings within Ford's Theatre so as not
to detract from the aesthetics of the historic
location.” Id. ¶¶ 13-14.
Wesberry and Jim Wesberry brought suit in this Court in June
2015. See generally Compl., ECF No. 1. The
Plaintiffs filed an Amended Complaint on October 19, 2015.
See generally Am. Compl. The Amended Complaint
includes a negligence count against the United States brought
pursuant to the FTCA, 28 U.S.C. §§ 1346(b), 2671,
and a claim for loss of consortium. See Id.
¶¶ 1, 24-31. The United States moves to dismiss.
See Def.'s Mot. Dismiss (“Def.'s
Mot.”), ECF No. 12. Specifically, the government argues
that Plaintiffs' claims are barred by sovereign immunity,
see Def.'s Mem. P. & A. Supp. Def.'s
Mot. Dismiss (“Def.'s Mem.”) at 7-13, ECF No.
12, and that the Amended Complaint fails to state a claim
upon which relief can be granted, see Id. at 13. The
Wesberrys oppose the motion, and also request permission to
conduct jurisdictional discovery. See generally
Pls.' Opp'n. The government's motion is now fully
briefed and ripe for decision.