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Wesberry v. United States

United States District Court, District of Columbia

March 28, 2018

BECKY WESBERRY, et al., Plaintiffs,



         Denying Plaintiffs’ Motion for Reconsideration [29]; Granting Defendant’s Motion to Dismiss [26]


         Plaintiffs Becky Wesberry and Jim Wesberry 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. This matter now comes before the Court on the Government’s motion to dismiss and Plaintiffs’ motion for reconsideration of the Court’s prior opinion. For the reasons stated below, the Court finds that the United States’ decisions at issue in this case fall within the FTCA’s discretionary function exception and that it therefore lacks subject-matter jurisdiction to hear Plaintiffs’ claims.


         A. Ford’s Theatre and Ms. Wesberry’s Injury

         Ford’s Theatre is administered by the National Park Service as a historic site within the National Mall and Memorial Parks Area. See 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.

         The 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).[1] 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 National Park Service Management Policies § 8.2.5, ECF No. 12-2). 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.” Director’s Order 50C: Public Risk Management Program, Nat’l Park Serv. at § 1.1 (May 7, 2010), ECF No. 12-3; see also Cucurullo Decl. ¶ 6.

         The Ford’s Theatre façade includes five doors that exit from the lobby onto 10th Street, Northwest. See Am. Compl. ¶¶ 12–13, ECF No. 9; Cucurullo Decl. ¶ 7. Because the sidewalk outside is slightly below the exits and the sidewalk itself is on a slope, each exit includes between one and five steps down to the walkway. See Am. Compl. ¶¶ 13, 17; Cucurullo Decl. ¶ 7. According to Plaintiffs, three of the five exits were not originally doorways at all, but rather windows that were converted sometime in the 1960’s. See Pls.’ Mot. for Reconsideration at 10, ECF No. 29. 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. However, sometime between 1968 and 1996, handrails were installed alongside stairs for three of the five exits-specifically, the three exits with the greatest number of steps. See Cucurullo Decl. ¶ 8; Def.’s Mot. Dismiss Ex. 2, ECF No. 12-4 (depicting stairs with handrails).

         According to the Amended Complaint, on April 28, 2014, Plaintiffs Becky and Jim Wesberry were leaving Ford’s Theatre when Ms. Wesberry fell down two, low-rise steps at the building’s exit, causing her multiple facial lacerations, loss of consciousness, and a broken hip. See Am. Compl. ¶¶ 9, 19–23. Ms. Wesberry and her husband subsequently brought suit against the United States for negligence and loss of consortium, claiming that the Government was negligent in failing to install handrails and other safety features on the stairs from which she fell. See Am. Compl. ¶¶ 24–31. Sometime thereafter, handrails were installed alongside the stairs of the Theatre’s remaining two exits. See Decl. Richard Ramos, ECF No. 29-2.

         B. The FTCA and the Discretionary-Function Exception

         The Government responded to Plaintiffs’ suit by moving to dismiss the matter under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction. Specifically, the Government claimed that the FTCA, 28 U.S.C. §§ 1346(b), 2671, did not authorize suit against the United States for the Government decisions at issue and, therefore, the suit was barred by sovereign immunity.

         “If sovereign immunity has not been waived, a claim is subject to dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction.” Clayton v. District of Columbia, 931 F.Supp.2d 192, 200 (D.D.C. 2013) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Sovereign immunity is jurisdictional in nature.”)). Courts “may not find a waiver unless Congress’ intent is ‘unequivocally expressed’ in the relevant statute.” Hubbard v. Adm’r, EPA, 982 F.2d 531, 532 (D.C. Cir.1992) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980)).

         The FTCA is a federal statute that provides a limited waiver of sovereign immunity, allowing the United States government to be held liable for negligent acts and omissions of federal employees acting within the scope of their employment. See 28 U.S.C. § 1346(b)(1); see also United States v. Orleans, 425 U.S. 807, 813 (1976). However, the FTCA also contains a number of exceptions that limit its scope. The Government claims that the Government actions at issue in this suit fall within the so-called “discretionary function exception.” Under that exception, the United States expressly retains immunity for “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The discretionary function exception reflects Congress’ “desire to prevent judicial second-guessing” of certain decisions. Berkovitz byBerkovitz v. United States, 486 U.S. 531, 536–37 (1988) (quoting United States v. Varig Airlines, 467 U.S. 797, 814 (1984)) (internal quotation marks omitted). Because the purpose of the exception is to shield discretionary policy decisions from liability, the exception applies even when an employee’s alleged acts are negligent. See United States v. Gaubert, 499 U.S. 315, 323 (1991) (examining Varig Airlines and explaining that actions taken in furtherance of the ...

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