Quigley et al v. United States of America et al
Filing
86
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/10/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LYNNE C. QUIGLEY, et al.
:
v.
:
Civil Action No. DKC 11-3223
:
UNITED STATES OF AMERICA, et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this consolidated
tort action is the motion to dismiss or, in the alternative, for
summary judgment filed by Defendant the United States of America
(“United States” or “the Government”) (ECF No. 42), as well as
two motions for leave to file a surreply filed, respectively, by
Defendant Montgomery County (“the County”) and Plaintiffs Lynne
C. Quigley, Miles C. Quigley, the estate of Joseph Quigley,
Adriana Ochoa, and Pollyana Barbosa (ECF Nos. 78, 79).
The
issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
For the
following reasons, the Government’s motion will be granted in
part and denied in part, and both motions for leave to file a
surreply will be denied.
I.
Background
Three cases are consolidated in this action:
Quigley v.
United States, No. DKC 11-3223; Ochoa v. United States, No. DKC
11-3224; and Barbosa v. United States, No. DKC 11-3225.
The
following allegations are taken from the amended complaint (ECF
No. 44), unless otherwise indicated.
A.
Factual Background
At some point during the overnight hours of January 19,
2009, a water main maintained by Defendant Washington Suburban
Sanitary Commission (“WSSC”) burst under Ridge Drive near the
intersection of 64th Street in the Bethesda area of Montgomery
County, Maryland.
After the main ruptured, WSSC increased the
water pressure, which amplified the flow of water.1
Water from
the main escaped into the street, where it collected and flowed
into a storm drain at the intersection of Ridge Drive and 64th
Street.
way
Due to a breach in the storm drain, the water made its
down
a
hillside
and
across
a
drainage
ditch
onto
the
adjacent Clara Barton Parkway (“the Parkway”), a limited access
urban
freeway
maintained
by
the
Government
through
its
Department of the Interior and National Park Service (“NPS”).
On January 20, 2009, the temperature in the vicinity was
below freezing.
As a result, the water from the burst main that
had collected on the Parkway froze into ice.
The ice covered
both westbound lanes of the Parkway for approximately 200 yards.
1
Upon learning of a broken main, it is the protocol of WSSC
to increase the water pressure to prevent water from backing up
within its system. (ECF No. 21 ¶ 26; ECF No. 26 ¶ 26).
2
There
was
no
appreciable
rain,
sleet,
snow,
or
other
precipitation in the area.
Around
driving
5:24
a.m.
eastbound
on
that
the
day,
decedent
Parkway.
At
Joseph
about
Defendant Marcelo Pepe was driving westbound.
the
same
was
time,
Ms. Ochoa and Ms.
Barbosa were passengers in Mr. Pepe’s vehicle.
3; ECF No. 26, at 3).
Quigley
(ECF No. 21, at
Mr. Pepe encountered the ice caused by
the burst main, lost control of his vehicle, crossed the median
into the eastbound lanes, and collided with Joseph Quigley’s
vehicle.
Joseph
eventually died.
injuries.
Quigley
sustained
injuries
from
which
he
In Mr. Pepe’s vehicle, Ms. Ochoa sustained
(ECF No. 21 ¶ 32).
Ms. Barbosa, who was originally
in the back seat, was ejected from the vehicle and landed on top
of
the
caused
burning
injuries
exhaust
and
system
first-,
of
the
second-,
vehicle,
and
all
of
third-degree
which
burns.
(ECF No. 26 ¶¶ 32, 35).
B.
On
Quigley,
Procedural Background
November
10,
individually
2011,
and
as
Lynne
C.
personal
Quigley
and
Miles
representatives
of
C.
the
estate of Joseph Quigley (“the Quigley Plaintiffs”), brought a
wrongful death and survival action against Defendants in this
3
court.
Barbosa
action.
(ECF No. 1).2
also
filed
At about the same time, Ms. Ochoa and Ms.
complaints
asserting
(ECF Nos. 21, 26).
complaints separately.
one omnibus answer.
identical
causes
of
The County answered all three
(ECF Nos. 14, 23, 28).
Mr. Pepe filed
(ECF No. 39).3
The three cases were consolidated for all purposes by court
order on January 4, 2012.
(ECF No. 20).
The court then granted
the Quigley Plaintiffs’ consent motion for leave to file an
amended
complaint.
contains seven counts:
(ECF
No.
43).
The
amended
complaint
(1) strict liability against WSSC; (2)
negligence against WSSC and a Doe Defendant employee of WSSC;
(3) strict liability against the County; (4) negligence against
the County and a Doe Defendant employee of the County;4 (5)
negligence against the United States; (6) negligence against Mr.
Pepe; and (7) liability of United Services Automobile Associated
2
Federal jurisdiction is predicated on the Federal Tort
Claims Act (“FTCA”) claim against the United States, with
supplemental jurisdiction as the basis for all other claims.
3
Mr. Pepe re-filed his answer a little over a week later.
(ECF No. 41). It is unclear what, if any, differences there are
between the two documents.
4
On January 10, 2012, the parties entered into a
stipulation in which the County and WSSC agreed that to the
extent any of their employees were found responsible for the
injuries in this matter, the County and WSSC, respectively,
would “stand in the shoes of said employee(s), litigate, and be
financially responsible for any judgment that may be entered
against any employee(s).” (ECF No. 30).
4
(ECF No. 44).5
Casualty Insurance Co. (“USAA”).
the amended complaint on March 28, 2012.
USAA answered
(ECF No. 54).
On February 24, 2012, the Government filed a motion to
dismiss or, in the alternative, for summary judgment.
(ECF No.
All Plaintiffs opposed the Government’s motion.6
(ECF Nos.
42).
59, 60, 62).
motion.
replied.
II.
Additionally, the County filed a response to the
(ECF
No.
58).
On
July
13,
2012,
the
Government
(ECF No. 75).7
Federal Tort Claims Act (“FTCA”)
The
FTCA
provides
a
limited
waiver
of
the
sovereign
immunity of the United States with respect to certain types of
tort actions.
See 28 U.S.C. §§ 1346(b), 2674.
Under the FTCA,
the United States is liable, as a private person, for “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
employment.”
while
acting
under
Id. § 1346(b).
the
scope
of
his
office
or
As a waiver of sovereign immunity,
the FTCA is to be narrowly construed and is not to be extended
5
After a round of briefing, Count One as to all Plaintiffs
and Count Two as to Ms. Barbosa were dismissed. (ECF Nos. 50,
51).
6
Ms. Ochoa and Ms. Barbosa adopted the Quigley Plaintiffs’
arguments.
7
On July 31, 2012, and August 3, 2012, the County and
Plaintiffs, respectively, moved for leave to file surreplies.
(ECF Nos. 78, 79). Those motions will be denied.
5
by implication.
See United States v. Nordic Vill., Inc., 503
U.S. 30, 34 (1992); see also Gould v. U.S. Dep’t of Health &
Human Servs., 905 F.2d 738, 741 (4th Cir. 1990) (“This waiver
permits suit only on terms and conditions strictly prescribed by
Congress.”).
The potential liability of the United States under
the FTCA is “qualified by a number of exceptions.”
Holbrook v.
United States, 673 F.3d 341, 345 (4th Cir. 2012).
The
Government
argues
that
the
discretionary
function
exception to the FTCA’s waiver of sovereign immunity set forth
in
28
U.S.C.
Plaintiffs’
§
2680(a)
claims.
(See
presents
a
ECF
42-1,
No.
jurisdictional
at
8).
bar
The
to
party
bringing suit in federal court bears the burden of proving that
subject-matter jurisdiction properly exists.
See Evans v. B.F.
Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
In a Federal
Rule of Civil Procedure 12(b)(1) motion, the court “may consider
evidence outside the pleadings” to help determine whether it has
jurisdiction over the case before it.
Richmond, Fredericksburg
& Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991); see also Evans, 166 F.3d at 647.
a
Rule
12(b)(1)
motion
“only
if
the
The court should grant
material
jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law.”
Richmond, Fredericksburg & Potomac
R.R. Co., 945 F.2d at 768.
6
“The discretionary function exception ‘marks the boundary
between Congress’ willingness to impose tort liability upon the
United States and its desire to protect certain governmental
activities from exposure to suit by private individuals.’”
Id.
(quoting
Rio
United
States
v.
S.A.
Empresa
de
Viacao
Aerea
Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)).8
Under
the exception, the United States may not be held liable 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).
Plaintiffs bear the burden of showing that
the discretionary function exception does not apply.
See Indem.
Ins. Co. v. United States, 569 F.3d 175, 180 (4th Cir. 2009).
“If
the
discretionary
function
exception
does
apply,
the
district court must dismiss the affected claims for lack of
subject matter jurisdiction.”
Id.
Determining whether an act is discretionary under the FTCA
may involve a two-step process.
First, conduct by a federal
employee falls within the discretionary function exception when
it “‘involves an element of judgment or choice.’”
8
Holbrook, 673
The Fourth Circuit has called this exception the “most
important” exception to the FTCA.
McMellon v. United States,
th
387 F.3d 329, 335 (4 Cir. 2004) (en banc).
7
F.3d at 345 (quoting Berkovitz v. United States, 486 U.S. 531,
536 (1988)).
“‘[T]he discretionary function exception will not
apply when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow’ because
‘the
employee
has
directive.’”
no
rightful
Indem.
Ins.
option
Co.,
Berkovitz, 486 U.S. at 536).
569
but
to
F.3d
adhere
at
180
to
the
(quoting
Second, “even if ‘the challenged
conduct involves an element of judgment, a court must determine
whether that judgment is of the kind that the discretionary
function exception was designed to shield,’ that is, decisions
‘grounded in social, economic, and political policy.’”
Smith v.
Wash. Metro. Area Transit Auth., 290 F.3d 201, 208 (4th Cir.
2002) (quoting Berkovitz, 486 U.S. at 537).
In considering this
step, the court does not focus on “the agent’s subjective intent
in exercising the discretion, but on the nature of the actions
taken and on whether they are susceptible to policy analysis.”
United States v. Gaubert, 499 U.S. 315, 325 (1991).
words,
analysis
function
under
exception
the
not
is
second
a
prong
of
the
fact-intensive
In other
discretionary
exercise,
as
the
court will only “look to the nature of the challenged decision
in an objective, or general sense, and ask whether that decision
is
one
which
we
would
expect
considerations of policy.”
721 (4th Cir. 1993).
inherently
to
be
grounded
in
Baum v. United States, 986 F.2d 716,
“Where . . . a regulation authorizes or
8
requires
agent’s
employee
acts
discretion.’”
discretion,
are
grounded
‘it
in
must
policy
be
presumed
when
that
exercising
the
that
Holbrook, 673 F.3d at 345 (quoting Gaubert, 499
U.S. at 324).
Here, Plaintiffs advance two theories of the Government’s
negligence,
which,
they
argue,
resulted
from
nondiscretionary acts of agents of the United States.
they
complain
that
the
United
States
failed
“to
the
First,
exercise
reasonable care to patrol the Parkway on January 20, 2009, and
recognize, appreciate, guard against, and/or warn motorists of
the ice hazard on the Parkway’s travel lanes.”
¶ 49).
(ECF No. 44
Second, they complain that the United States failed “to
exercise reasonable care to maintain the Parkway and its lands
adjacent
below
thereto,
Ridge
Drive
including
and
the
the
storm
Parkway’s
drain
on
drainage
the
hillside
facilities.”
(Id.).
A.
Negligent Patrol
As
to
Plaintiff’s
first
theory
of
negligence,
the
Government notes that Plaintiffs cannot “point to . . . any
mandatory federal statutes, regulations or directives applicable
to how the [United States Park Police] should conduct patrols of
its roadways, including but not limited to the [Parkway].”
at 12).
(Id.
The Government observes that, in fact, the powers of
NPS are broadly defined by statute.
9
Of relevance here, the NPS
shall promote and regulate the use of the
Federal areas known as national parks,
monuments, and reservations . . . , as
provided by law, by such means and measures
as conform to the fundamental purpose . . .
to conserve the scenery and the natural and
historic objects and the wild life therein
and to provide for the enjoyment of the same
in such manner and by such means as will
leave them unimpaired for the enjoyment of
future generations.
16 U.S.C. § 1.
Furthermore, the NPS has the following policy
regarding safety:
“The means by which public safety concerns
are to be addressed is left to the discretion of superintendents
and other decision-makers at the park level who must work within
the limits of funding and staffing.”
National Park Service,
Management Policies 2006 § 8.2.5.1 (2006).
Plaintiffs attempt to recast the relevant conduct as the
failure
of
NPS
to
warn
drivers
about
the
ice
patch
on
the
Parkway rather than the failure of NPS to patrol the Parkway.
(See ECF No. 59, at 10).
To that end, Plaintiffs point to a
statement in the declaration of Lt. Gregory Monahan, which was
submitted by the Government, that “[w]hen an officer [patrolling
the Parkway] observes a hazard, he is instructed to take action
depending on the severity of the hazard, that could include
notifying [Parkway] maintenance crews or establishing traffic
control
measures.”
(ECF
No.
42-3,
Monahan
Decl.,
¶
7).
According to Plaintiffs, this vague reference to an instruction
“is the product of some agency rule, policy or protocol,” which
10
takes the action of NPS outside of the discretionary function
exception to the FTCA.
(ECF No. 59, at 10).
With respect to prong one of the discretionary function
exception, Plaintiffs’ reasoning is flawed.
To begin, their
construction of the relevant conduct is too narrow.
In Autery
v. United States, 992 F.2d, 1523 (11th Cir. 1993), the Eleventh
Circuit confronted an analogous situation in which the practice
of NPS of identifying and removing hazards from roadways was
challenged.
The Eleventh Circuit stated:
administrative
danger,
.
.
policy,
.
that
not
the
determines
Park
“It is the governing
Service’s
whether
knowledge
certain
conduct
of
is
mandatory for purposes of the discretionary function exception.
The FTCA expressly provides that the exception applies to policy
judgments,
even
to
those
constituting
abuse
of
discretion.”
Autery, 992 F.2d at 1528 (internal quotation marks omitted);
accord Merando v. United States, 517 F.3d 160, 167 (3d Cir.
2008).
trees,
Even though Autery concerned the removal of dangerous
the
underlying
principle
is
still
applicable
here.
Whether the NPS would have been required to report the ice patch
if they had seen it is irrelevant to the analysis.
517 F.3d at 173.
See Merando,
The relevant inquiry is whether controlling
statutes, regulations, or administrative policies mandated that
the
NPS
manner.
patrol
for
dangerous
road
See Autery, 992 F.2d at 1528.
11
conditions
in
a
specific
In this case, Plaintiffs
do
not,
as
is
their
burden,
identify
any
actual
directive
dictating when or how the NPS is supposed to patrol the Parkway
generally, let alone when or how to report instances of icy
conditions.
See Indem. Ins. Co., 569 F.3d at 180.
Without
more, it cannot be said that, based on these circumstances, the
action
of
choice.”
NPS
did
not
“involve[]
an
element
of
judgment
or
See Holbrook, 673 F.3d at 345.
With respect to prong two of the discretionary function
exception,
the
patrolling
policy analysis.”
Management
regarding
of
the
Parkway
is
“susceptible
See Gaubert, 499 U.S. at 325.
Policies
public
of
safety
NPS
“require[]
concerns;
Indeed, the
employee
therefore,
to
discretion”
“it
must
presumed that the acts [of NPS] are grounded in policy.”
be
See
Holbrook, 673 F.3d at 345 (internal quotation marks omitted).
Bolstering this conclusion are cases in which courts have agreed
that
it
is
sound
to
protect
addresses security issues.
from
suit
how
law
enforcement
See, e.g., Attalah v. United States,
758 F.Supp. 81, 89-91 (D.P.R. 1991) (collecting cases).
Thus,
prong two of the discretionary function exception is satisfied.
Separately,
Plaintiffs
argue
that
further
discovery
is
warranted regarding “records setting forth the procedures to be
followed in routine patrol of the [Parkway].”
11).
(ECF No. 59, at
In particular, they seek production of a “212-page record”
that the Government identified as responsive but exempt pursuant
12
to a Freedom of Information Act request submitted by Plaintiffs.
(See
id.).
“[T]he
jurisdictional
decision
discovery
is
of
a
whether
matter
discretion of the district court.”
or
not
committed
to
to
the
permit
sound
Base Metal Trading, Ltd. v.
OJSC “Novokuznetsky Aluminum Factory”, 283 F.3d 208, 216 n.3 (4th
Cir. 2002).
The Government offered to produce the 212 pages of
target documents under seal to Plaintiffs in connection with its
reply, but Plaintiffs rejected this offer.
(ECF No. 75, at 25
n.15).
Plaintiffs do not contest this assertion, nor do they
explain
why
purposes.9
this
offer
would
not
have
sufficed
for
their
Given this context, there is no good reason to defer
resolution of Plaintiffs’ failure-to-patrol claim.
Accordingly,
Plaintiffs’ request to conduct jurisdictional discovery on this
claim will be denied.
In sum, the discretionary function exception to the FTCA
immunizes the United States from any claims grounded in the
alleged failure of NPS to patrol the Parkway.
To the extent
that Count Five asserts a negligence claim based on this theory,
it will be dismissed for lack of subject-matter jurisdiction.
9
Plaintiffs’ motion for leave to file surreply does not
reference the Government’s offer at all. (See generally ECF No.
79).
13
B.
Negligent Maintenance
Plaintiffs’ negligent maintenance claim alleges that the
Government violated its duty to “maintain the Parkway and its
lands adjacent thereto” with respect to two different components
of the Parkway’s drainage system.
(ECF No. 44 ¶ 49).
First,
Plaintiffs allege that (1) “[f]or some period of time prior to
January
20,
periodic
or
2009, . . . the
any
meaningful
United
States
inspection
or
[did
not
maintenance
perform]
of
the
storm drain” above the Parkway; and (2) the storm drain had a
“breach”
that
allowed
water
to
escape
Parkway on the date of the accident.
and
flow
down
(Id. ¶¶ 23, 26).
to
the
Second,
Plaintiffs allege that (1) “[f]or some period of time prior to
January 20, 2009, the United States performed no periodic or any
meaningful inspection or maintenance of the ditch and drainage
outlets” abutting the Parkway near the accident site and (2) the
water
that
escaped
from
the
storm
drainage ditch and onto the Parkway.
drain
flowed
across
the
(Id. ¶¶ 24, 26).
As
further simplified in Plaintiffs’ opposition, the conduct of the
Government that is at issue in Plaintiffs’ negligent maintenance
claim is its alleged “failure to fix a hole in a storm drain”
and its alleged “failure to keep a small portion of a roadside
drainage ditch clear.”
(ECF No. 59, at 20).
Thus, with respect to the first prong of the discretionary
function exception, the relevant inquiry is whether there is any
14
statute, regulation, or policy that requires the NPS to maintain
its storm drains and drainage ditches in a specific manner.
See
Baum, 986 F.2d at 721; Rosebush v. United States, 119 F.3d 438,
442 (6th Cir. 1997).
As before, the Government argues that no
such mandatory statute, regulation, or policy exists.
42-1, at 12) (internal quotation marks omitted).
(ECF No.
Unlike with
the previous theory of negligence, however, Plaintiffs identify
three potential sources.
First, they point to 16 U.S.C. § 1a-8(a)(3).
at 15).
(ECF No. 59,
That statute reads, in relevant part:
[T]he National Park Service shall implement
a maintenance management system into the
maintenance and operations programs of the
National Park System.
For purposes of this
section the term “maintenance management
system” means a system that contains but is
not limited to . . . a description of work
standards
including
frequency
of
maintenance, measurable quality standard to
which assets should be maintained, methods
for accomplishing work, required labor,
equipment
and
material
resources,
and
expected
worker
production
for
each
maintenance task . . . .
16 U.S.C. § 1a-8(a)(3).
The plain language of this provision
defeats Plaintiffs’ position, however.
only
establishes
that
the
decision
At best, this statute
of
whether
maintenance management system is non-discretionary.
provide
any
specific
directives
regarding
the
to
have
a
It does not
day-to-day
maintenance of the Parkway and certainly does not require NPS to
15
maintain the storm drains and drainage ditches alongside of the
Parkway
in
any
specific
manner.
If
anything,
this
statute
supports the Government’s contention that the maintenance of its
park system is a discretionary function because it appears to
delegate to the NPS the details of actually carrying out that
process.10
Second,
970.212.
Plaintiffs
rely
on
(ECF No. 59, at 15).
23
C.F.R.
§§
970.204
and
Like 16 U.S.C. § 1a-8(a)(3),
however, these regulations require only that the NPS “develop,
establish
and
implement”
system,”
which
includes
maintaining
and
a
“federal
lands
“procedures
upgrading
for
safety
safety
.
.
.
management
[r]outinely
appurtenances
including
highway-rail crossing warning devices, signs, highway elements,
and
operational
features.”
See
.212(c)(2)(i).
The
regulations
mandatory
for
the
rules
manner
do
in
23
C.F.R.
not
set
which
NPS
§§
970.204,
forth
specific,
is
supposed
to
maintain the drainage systems under its purview.
Third, Plaintiffs cite to two sections of a document with
the subject line “Park Road Standards.”
10
(ECF No. 59, at 16; ECF
Moreover, the Government included with its reply
“Director’s Order #80:
Real Property Asset Management,” which
actually “establish[es] the NPS policies, requirements, and
standards for implementing” 16 U.S.C. § 1a-8(a)(3).
(See ECF
No. 75-4, at 3). This document does not prescribe the manner in
which the NPS must maintain the Parkway or the national park
system.
16
No. 59-10, at 1).11
As Plaintiffs observe (see ECF No. 59, at
16), the Park Road Standards state:
designed
to
provide
for
adequate
ditches
features to ensure positive drainage.
enough
to
accommodate
the
design
“Cut sections should be
or
other
drainage
The ditch must be large
flows
and
deep
enough
provide for satisfactory drainage of the pavement base.”
No. 59-10, at 38).12
to
(ECF
This section contains requirements for the
design of drainage systems and does not speak to the inspection,
maintenance,
or
repair
thereof.
(See
ECF
No.
¶¶
49,
51).
Because Plaintiffs’ claim is not one for negligent design, the
section of the Park Road Standards addressing the design of cut
sections is not applicable.
By contrast, Plaintiffs’ reliance on a second provision of
the Park Roads Standards, set forth below, is well-taken:
Road safety and efficiency of operation
depend on adequate levels of cyclic and
preventative maintenance and repair, which
are also essential to protect the extensive
capital investment [of NPS] in the physical
facility constituted by park roads, parkways
and bridges. Consequently, park roads shall
be maintained to the standards to which they
have been constructed or reconstructed, and
11
Citations to the Park Road Standards refer to the CM/ECF
pagination.
12
A “cut section” is “[t]hat part of the roadway which,
when constructed, is lower in elevation than the original
ground.” (ECF No. 59-10, at 45).
17
in a condition that promotes
protects capital investment.
(Id. at 43) (emphasis added).
safety
and
Thus, the NPS is required by the
Park Road Standards to maintain its “roads” – defined to include
“the
entire
manner:
area
within
the
right-of-way”
–
in
a
specific
in accordance with “the standards to which they have
been constructed or reconstructed.”
(Id. at 43, 48).
Cf. ARA
Leisure Servs. v. United States, 831 F.2d 193, 196 (9th Cir.
1993) (holding that a policy requiring “that park roads ‘conform
to the original grades and alignments’ and that graded roads be
‘firm,
[and]
specific
of
uniform
standard
original)).13
As
to
cross
which
set
section’”
forth
a
hold
to
was
NPS
(alteration
above,
the
Plaintiffs’
sufficiently
theory
in
of
negligent maintenance is premised on the alleged failure of the
Government to perform any “periodic” or “meaningful” maintenance
to keep two components of its drainage system in working order.
Although Plaintiffs admit to needing discovery to ascertain the
13
The existence of the Park Road Standards renders the
Government’s reliance on Baum v. United States, 765 F.2d 716 (4th
Cir. 1993) unavailing.
In Baum, the plaintiffs contended that
the NPS “was negligent in designing and constructing the bridge
guardrail in question” and “failed to maintain the guardrail
system.”
Id. at 721.
As to both claims, the Fourth Circuit
explicitly found no mandatory law governing either function.
Id. at 722.
Therefore, the issue in Baum concerned the second
prong of the discretionary function exception of the FTCA.
Here, the court need not reach the second prong because there is
a policy dictating the actions of NPS.
18
precise
standards
of
construction
or
reconstruction
for
the
Parkway’s drainage system (ECF No. 59-1 ¶ 10), such standards
certainly required the storm drain to be free from holes and the
drainage ditch to be capable of draining water.14
the
cited
provision
does
not
condition
requirement on the availability of funds.
the
Furthermore,
maintenance
Cf. Walters v. United
States, 474 F.3d 1137, 1139 (8th Cir. 2007) (observing that a
regulation requiring the Bureau of Indian Affairs to preserve a
road “as nearly as possible in the as-built condition” would
satisfy the first prong of the discretionary function exception
but for a related regulation that explicitly conditioned such
maintenance on the availability of funds).
Standards
Plaintiffs
unequivocally
allege
did
require
not
the
occur
14
type
and
Thus, the Park Road
of
maintenance
therefore
that
constitute
a
In its reply, the Government raises two factual issues in
an apparent effort to avoid this conclusion.
First, by
reference to a second declaration of Jon James, the Government
contends that the build-up of debris in a drainage ditch cannot
be remedied through ordinary maintenance but instead requires
comprehensive “reconstruction” as part of a long-term facilities
management project.
(ECF No. 75, at 14-15).
Second, the
Government posits that “the United States does not own the storm
drain – and, therefore, is not responsible for its maintenance
or operation.” (ECF No. 75, at 21). Because the Government did
not raise either of these issues with any clarity in its opening
brief, the issues will not be addressed at this time.
See
Clawson v. FedEx Ground Package Sys., Inc., 451 F.Supp.2d 731,
734 (D.Md. 2006) (“The ordinary rule in federal courts is that
an argument raised for the first time in a reply brief or
memorandum will not be considered.”). Furthermore, such issues
are properly the subject of discovery.
19
mandatory
policy
for
purposes
of
the
first
prong
of
the
discretionary function exception.
The Government maintains that the Park Road Standards do
not satisfy the first prong of the discretionary function for
two reasons.
First, the Government contends that the Park Road
Standards are inapplicable to the Parkway, which was constructed
prior to 1984, the effective date of the document.
at 12-13).
are
(ECF No. 75,
Second, the Government maintains that, even if they
applicable,
the
Park
Road
Standards
do
not
remove
the
discretion that NPS has to manage the Parkway and its drainage
system.
(Id. at 11-12).
Each of these arguments is unavailing.
As to the applicability of the Park Road Standards, the
Government concedes that the document would apply “as existing
park roads are reconstructed or when new roads are constructed”
after 1984, when the Park Road Standards were adopted.
75, at 12;
see also
ECF No. 59-10, at 3).
(ECF No.
The Government
insists, however, that the Park Road Standards do not apply to
the Parkway because the Parkway was constructed prior to 1984
and since then has only been subject to one resurfacing project.
(ECF
No.
75,
at
12-13).
At
this
stage,
however,
the
applicability of the Park Road Standards cannot be precluded.
The
admitted
Parkway
resurfacing
within
the
project
scope
of
may
well
the
Park
have
Road
brought
the
Standards.
Furthermore, when confronted with the same argument that the
20
Park Road Standards do not apply to older roads, at least one
circuit court specifically rejected that notion:
“We find this
argument unconvincing, both because it seems to suggest that the
Standards are entirely irrelevant to a major access road in a
major national park and because it implies that the Standards’
objective
safety
specifications
have
no
bearing
on
the
safe
maintenance of pre-existing roads.”
Soldano v. United States,
453 F.3d 1140, 1149 (9th Cir. 2006).
The decision in Mitchell v.
United States, 225 F.3d 361, 364 (3d Cir. 2000), is not to the
contrary.
There,
none
negligent maintenance.
of
the
plaintiffs’
claims
involved
Instead, the Government relied on the
Park Road Standards in arguing that its decision regarding how
and when to reconstruct or repair a state roadway ceded to the
United States prior to 1984 was discretionary.15
The Government argues in the alternative that, even if the
Park Road Standards apply to the Parkway, Plaintiffs ignore the
full context of the Park Road Standards, which, according to the
Government, bestow complete discretion on the NPS in managing
the parks system and roads.
(See ECF No. 75, at 11-12).
The
Government quotes extensively from the Preface of the Park Road
15
Additionally, Plaintiffs point out that the Park Road
Standards are specifically referenced in the Management Policies
2006 of NPS.
(See ECF No. 59, at 16).
As noted earlier, the
Government cited to this policy manual in defense of its stance
that patrolling the Parkway is a discretionary matter.
21
Standards
to
show
that
they
do
not
impose
any
specific
prescriptions on the NPS, but these statements do not address
the maintenance of a roadway as Plaintiffs’ selected provision
does.
For example, “[t]he standards contained herein provide
flexibility in the planning and design processes to allow for
consideration of variations in types and intensities of park
use, for wide differences in terrain and climatic conditions,
and for protection of natural and cultural resources in National
Park System areas.”
(ECF No. 59-10, at 3) (emphasis added).
Elsewhere, the Preface reads:
The criteria presented have been adapted
from available design standards to meet the
unique requirements of park roads.
This
will provide a framework within which design
and construction of park roads should be
conducted; however, this document is not
intended to encompass a level of detail
comparable to that normally found in design
manuals.
(Id.)
(emphases
added).
And
finally,
it
states:
“On
resurfacing, restoration and rehabilitation (3-R) projects [the
standards]
will
feasible.”
discretion
concerns
be
(Id.)
that
utilized
(emphasis
the
Park
functions
reconstruction
–
to
not
such
the
the
extent
added).
In
Road
Standards
as
design,
maintenance
practicable
other
provide
words,
to
the
and
the
NPS
construction,
of
and
roadways.
This
interpretation of the Park Road Standards is wholly in line with
the reading by various circuit courts.
22
See Soldano, 453 F.3d at
1150
(“[I]t
scientific
does
not
safety
particularly
those
follow
that
the
specifications
that
do
not
Standards’
may
be
require
basic,
disregarded,
redesigning
or
reconstructing the [roadways].”); see also Mitchell, 225 F.3d at
364 (“Under these guidelines, the Park Service’s decision about
how
and
when
discretionary
provisions
to
reconstruct
decision
within
the
.
.
Park
Route
.
209
.”).16
Road
would
seem
Thus,
although
Standards
may
to
provide
be
a
some
for
flexibility, that flexibility does not apply to the maintenance
of the Parkway.
All in all, on this theory of negligence, i.e., failure to
maintain the storm drain and drainage ditch in working order,
Plaintiffs
have
satisfied
their
burden
with
respect
to
the
discretionary function exception to the FTCA by showing that
“the governmental action complained of” did not “involve[] an
element of judgment or choice” by virtue of the maintenance
mandate set forth in the Park Road Standards.
16
Baum, 986 F.2d at
In addition to Mitchell, the Government relies on Cope v.
Scott, 45 F.3d 445 (D.C. Cir. 1995), as an example where the
court
interpreted
the
Park
Road
Standards
as
providing
discretion to the NPS in its operations. The Cope court looked
only at the Preface’s use of the phrase “to the extent
practicable” to deduce that all of the Park Road Standards are
non-mandatory. Id. at 450. As noted above, however, when read
in context, this phrase concerns “resurfacing, restoration and
rehabilitation (3-R) projects,” not maintenance.
23
720.
Therefore, the second prong of the discretionary function
exception need not be reached.
III. Summary Judgment
A court may enter summary judgment only if there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v.
Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is
inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]
pleadings,’
but
rather
must
‘set
forth
specific
showing that there is a genuine issue for trial.’”
facts
Bouchat v.
Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof
.
.
.
will
not
suffice
to
prevent
“A mere scintilla of
summary
judgment.”
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
“If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249–50 (citations omitted).
construe
the
facts
that
Liberty Lobby, 477 U.S. at
At the same time, the court must
are
presented
24
in
the
light
most
favorable
to
the
party
opposing
the
motion.
See
Scott
v.
Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
To prove negligence under Maryland law, a plaintiff must
show that:
(1) the defendant was under a duty to protect the
plaintiff from injury; (2) the defendant breached that duty; (3)
the plaintiff suffered actual injury or loss; and (4) the loss
or injury proximately resulted from the defendant’s breach of
the
duty.
(1999).
Valentine
v.
On
Target,
Inc.,
353
Md.
544,
549
The Government asserts that judgment is warranted in
its favor regarding the failure-to-maintain claim because there
is no evidence that the clogged drainage ditch17 caused the icy
condition of the Parkway.
(ECF No. 42-1, at 21-22).18
17
In its motion, the Government focuses its attention only
on the drainage ditch abutting the Parkway and not on the storm
drain above the Parkway.
(See ECF No. 42-1, at 8).
Confusingly, the Government sometimes refers to the drainage
ditches as “storm drains.” (See id. at 12). It is clear from
the Government’s descriptions, however, that its argument is
intended to apply to the drainage ditches.
(See, e.g., id. at
22 n.11 (“[T]he storm drains are situated in a flat, flush
orientation with the road surface . . . .”)).
Indeed,
Plaintiffs construe the Government’s argument as such. (ECF No.
59, at 19, 26).
As noted above, the contested ownership of the storm drain
is raised by the Government for the first time in its reply
brief and will not be considered at this time. See Clawson, 451
F.Supp.2d at 734.
Regardless, and as Plaintiffs note in their
motion to file a surreply, that issue is best developed through
discovery.
18
The
Government’s
argument
regarding
actual
or
constructive notice of the icy condition (ECF No. 42-1, at 1425
“To be a proximate cause for an injury, the negligence must
be (1) a cause in fact, and (2) a legally cognizable cause.”
Pittway Corp. v. Collins, 409 Md. 218, 243 (2009) (internal
quotations
omitted).
requirement
that
injury.
the
Id. at 244.
Causation-in-fact
defendant’s
conduct
refers
actually
to
the
produce
an
Depending on the situation, there are two
tests for determining if causation-in-fact exists:
for” test and the “substantial factor” test.
Id.
the “but
“The ‘but
for’ test applies in cases where only one negligent act is at
issue . . . .”
Id.
“When two or more independent negligent
acts bring about an injury, . . . the substantial factor test
controls.
Causation-in-fact may be found if it is ‘more likely
than not’ that the defendant’s conduct was a substantial factor
in producing the plaintiff’s injuries.”
Id.
Here, there were potentially multiple, independent events
that
led
to
the
underlying
car
accident
that
Quigley and injured Ms. Ochoa and Ms. Barbosa.
killed
Joseph
Therefore, when
the Government argues that “[t]he United States played no role
whatsoever
in
these
events”
(ECF
No.
42-1),
it
in
essence
contends that the alleged failure to maintain the drainage ditch
was
not
a
substantial
factor
in
producing
the
accident.
20) is moot because the FTCA bars the negligent patrol/failure
to warn claim.
26
Plaintiffs, however, have adduced contrary evidence.
They point
to the Declaration of Christopher Brown, which states:
The portion of the drainage ditch between
the base of the retaining wall and the
travel lanes of the [Parkway] appears to
have become filled over time with silt and
vegetation, such that there was no longer
any appreciable channeling to the horizontal
inlets.
There did not appear to have been
any maintenance work to keep the ditch clear
for a significant period of time.
(ECF No. 59-7, Brown Decl., ¶ 5).
Taken in the light most
favorable to Plaintiffs, this evidence suggests that the clogged
condition of the drainage ditch contributed to the pooling of
the water on the Parkway, which eventually froze into the ice
patch
that
exists
led
to
regarding
the
accident.
whether
the
Therefore,
Government’s
a
triable
negligence
fact
was
a
cause-in-fact of Plaintiffs’ injuries.
The second requirement to show proximate cause — that the
negligence is a legally cognizable cause — requires the court
“to consider whether the actual harm to a litigant falls within
a general field of danger that the actor should have anticipated
or expected.”
Pittway Corp., 409 Md. at 245.
“The question of
legal causation most often involves a determination of whether
the
injuries
conduct.”
were
a
Id. at 246.
foreseeable
result
of
the
negligent
Here, the Government argues that “[t]he
United States cannot be held liable for the unexpected volume of
flooding water . . .
cascading from such a focused source on
27
non-government
property
at
the
top
of
the
hill,
down
the
hillside, over the stone retaining wall and across the roadway
before
freezing.”
(ECF
No.
42-1,
ignores the crucial issue, however.
at
22).
The
Government
Regardless of the initial
source of the water, the NPS may nonetheless be responsible for
water that collects on the Parkway because it allegedly failed
to keep the drainage ditch clear of debris.
See Jennings v.
United States, 291 F.2d 880, 887 (4th Cir. 1961) (observing that
the United States may be liable for negligently maintaining a
drainage ditch, the inadequacy of which may have contributed to
an icy patch on the roadway); cf. True v. Mayor of Westernport,
196
Md.
280
(1950)
(holding
a
municipality
liable
for
negligently maintaining a sewer where, despite “extraordinary
rainfall,” the unclogged sewer may have prevented damage to the
plaintiff’s
property).
The
potential
consequences
of
an
unmaintained drainage ditch is well within the “field of danger”
that the NPS should have anticipated.
Accordingly, the Government’s motion as to this claim will
be denied.
28
IV.
Conclusion
For the foregoing reasons, the motion to dismiss or, in the
alternative, for summary judgment filed by Defendant the United
States of America will be granted in part and denied in part.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
29
A
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