PHILADELPHIA – A local woman who suffered severe leg injuries in a fall over a metal barrier at Washington Square Park more than two years ago argues that the U.S. government’s attempt to dismiss her litigation should be disregarded, based on the fact that the allegations do not fall under the discretionary function exception.
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.
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 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 Dec. 26, 2018, in order to protect an ongoing turf restoration project.
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.”
UPDATE
The plaintiff countered that the dismissal is predicated upon an erroneous argument.
“Plaintiff’s complaint does not allege that the NPS had a negligent plan. Plaintiff does not call into question NPS’s decision to use barriers, nor the general idea of restricting visitors from seeded areas. Instead, plaintiff’s claim alleges negligence in the implementation of its plan. Specifically, plaintiff alleges that a barrier was placed in an inconsistent manner with other barriers and created a tripping hazard which plaintiff’s serious injuries. Federal courts have consistently held that negligence in the implementation of a plan is not protected by the discretionary function exception,” the plaintiff’s reply brief stated.
“Defendant’s motion wholly fails to address the distinction between planning and implementation. Instead, defendant attempts to characterize plaintiff’s complaint as a challenge to the NPS’s safety procedures in general, arguing that the Courts ‘have consistently found that the NPS’s choice as to how it protects visitors and resources alike fall within the DFE.”
According to the plaintiff, there is “no reasonable argument that the NPS had a policy plan to create such a danger with one of the barriers”, but rather, that it was “simply negligence in implementation of their overall plan, therefore, the DFE does not apply to the conduct of the employee who placed it.”
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