PHILADELPHIA – The U.S. government denies liability for severe leg injuries that a local woman alleged she suffered in a fall over a metal barrier at Washington Square Park more than two years ago.
Anna Johnston of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 30 versus the United States of America.
“Prior to Dec. 26, 2018, defendant had caused metal barriers to be placed in and around Washington Square Park, which constituted a hazard, as described in further detail below. On Dec. 26, 2018, plaintiff Anna Johnston was walking in Washington Square Park when she fell over a gray metal barrier that had been placed so as to extend out from the glass area onto the gray flagstone wall may,” the suit said.
“The aforementioned metal barrier constituted an unreasonable hazard to plaintiff and others because: a) The placement of the barrier was improper, as it extended out onto the area where pedestrians such as plaintiff would be expected to walk but where such pedestrians would not expect a tripping hazard; b) The area where the barrier extended onto the walkway was not marked and was hidden by being the same color as the wall may; c) The placement of the barrier was inconsistent with the placement of other barriers in the area, which were properly placed and not hazardous to pedestrians; and d) There were no warnings of a tripping hazard in the area of the barrier.”
Among other reasons, the suit said the defendant was negligent in a) Its placing of a barrier in improper manner so that it extended out onto the area where pedestrians such as plaintiff would be expected to walk but where such pedestrians would not expect a tripping hazard; b) Placing a gray barrier so that it extended from the grass out onto the gray flagstone, both creating and concealing a tripping hazard; and c) Failing to mark the area where the barrier extended onto the walkway.
“As a direct and proximate result of the negligence and carelessness of defendant’s employees, plaintiff suffered injury, including, but not necessarily limited to post-traumatic right intertrochanteric fracture, requiring an open reduction and internal fixation, post-traumatic complications of hypotension and electrolyte imbalance, and injury to her general body and nervous system, all or some of which may be permanent,” per the suit.
“As a direct and proximate result of the negligence and carelessness of defendant as described above, plaintiff experienced and continues to experience pain and suffering, limitation, discomfort, anxiety, and a diminution of life’s enjoyment and will continue to do so in the future.”
As a result of the accident, the suit said that the plaintiff sustained a leg length discrepancy which has made ambulating very difficult and left her partially disabled. Furthermore, the plaintiff adds that she is required to undergo a total hip replacement as a result of the accident, which procedure is scheduled to take place at Jefferson Hospital in Philadelphia in June of 2021.
UPDATE
An answer to the complaint was filed by the U.S. government on Oct. 8, charging that the plaintiff’s negligence claim in Count I is barred by the Federal Tort Claims Act’s discretionary function exception (DFE) – and as a result, it would leave the case without federal jurisdiction, arguing it should then be dismissed with prejudice.
“The DFE provides that the United States is immune from tort claims where the controlling law or policy leaves the conduct at issue to the sound discretion of a federal agency. The DFE only applies when the discretion used implicates important agency policy. The DFE applies in the present case because there is no definitive manner in which the National Park Service should regulate pedestrian traffic to protect a grass restoration project in a national park,” the answer read, in part.
“NPS’s decisions about how to best protect its grass turf restoration project implicate important resource-management issues that are managed with discretion and implicate important and competing policy interests. Accordingly, the DFE applies to bar plaintiff’s complaint. The United States therefore respectfully moves the Court to dismiss the complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).”
The answer continued that the NPS investigated the plaintiff’s administrative tort claim and determined that the barricades in question had been intentionally placed in the manner in which they appeared on December 26, 2018, in order to protect an ongoing turf restoration project.
“Contrary to plaintiff’s allegations, the agency concluded that the barricades were highly conspicuous and marked with high-visibility rope and signs. Park staff located a photograph taken Nov. 21, 2018, approximately one month before plaintiff’s alleged accident and at nearly the exact same location. The photo confirms the Park’s description of its care taken to avoid visitor interaction with the barricades (yellow rope, signage),” the answer read.
“Park staff indicate that some of the barricade footings, along the more narrow pathways, were sometimes temporarily placed in the grass to allow for Park maintenance all-purpose vehicles to pull leaf vacuuming equipment safely through the area. NPS concluded that the barricades were not placed negligently. While the agency notified plaintiff that it would not pay her claim, NPS never formally denied the claim. Plaintiff filed suit on July 30, 2021.”
According to the defense, “the actions and decisions that plaintiff complains of are matters that fall expressly and exclusively within the NPS’s discretion”, and the United States “has not waived sovereign immunity for matters that Congress committed to the NPS’s discretion, including the manner in which it preserves the natural, historical and cultural properties under its care.”
“The Park has discretion, under pertinent statutes and NPS policies, to determine what safety and beautification measures to employ at a particular location, including how to restrict visitor access on Washington Square’s grassy green during a turf restoration project. This project required that visitors remain off the grass for approximately six months and was essential in preserving and maintaining the park’s natural and historic aesthetic,” the answer stated.
“Moreover, this discretion is the kind that requires the Park to make policy judgments balancing competing considerations – including the protection, preservation, and presentation of some of the country’s most historic grounds. These are the very types of decisions protected by the DFE. Congress did not intend for judicial second-guessing of the NPS’s discretionary determinations in how to best manage competing interests that accompany turf restoration in historic Washington Square. As a result, the Court is without jurisdiction over plaintiff’s claims, and the complaint must be dismissed.”
For a count of negligence, the plaintiff is seeking a judgment awarding compensatory damages, plus costs and delay damages.
The plaintiff is represented by M. Gerard Bradley of Brooks Bradley & Doyle, in Media.
The defendant is represented by Colin M. Cherico of the U.S. Attorney’s Office, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02908
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com