PHILADELPHIA – A federal judge has concurred with the U.S. government in believing that the Federal Tort Claims Act’s discretionary function exception (DFE) bars injury claims made by a local woman who suffered severe leg injuries in a fall over a metal barrier at Washington Square Park in Philadelphia, more than three 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 added that she was required to undergo a total hip replacement as a result of the accident, which took place at Jefferson Hospital in Philadelphia in June 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 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.”
In a Rule 26(f) meeting on Jan. 25, the parties conferred and clarified their arguments.
According to the plaintiff, the discretionary function exception to the Federal Tort Claims Act is not applicable to this case because her claim is that the defendant’s employee negligently placed one specific barrier, not that the Park Service negligently planned the project.
Meanwhile, the defense disagreed that Johnston fell because of its negligence, but rather, due to her own negligence in not paying mind to the open and obvious barriers. Additionally, the defense says its decisions about barrier placement is in fact “a discretionary decision that gives the NPS the protection of the discretionary function exception to the FTCA.”
The NPS also rejected a settlement offer from plaintiff counsel, according to the report.
“Plaintiff has made an initial settlement demand of $500,000, which defendant rejected. The parties are open to the possibility of early resolution. Defendant also reserves the right to file a motion for summary judgment should discovery reveal facts that should dispose of this matter,” the report stated.
UPDATE
In a March 11 memorandum opinion from U.S. Magistrate Judge Carol Sandra Moore Wells, the judge found that the DFE does bar Johnston’s claims and dismissed her case for lack of jurisdiction.
“The discretionary decision to carry out the turf restoration at Washington Square required considerations of social and economic policy. For one, balancing the cost of the project against all the other needs at Independence National Historic Park is inherently an economic policy decision. Furthermore, deciding how to balance the need to have a successful restoration, while still allowing the public to use Washington Square is a policy decision,” Moore Wells said.
“Next, placing the barriers’ footings on the walkways, instead of on the grass, involved the intersection of economic and social policy. Putting the barrier footings on the walkway, rather than on the grass, was designed to maximize the economic benefit of seeding by enhancing the probability that the restoration would succeed and, thereby, avoid necessity of repeating the restoration process sooner. Of course, placing the footings on the walkways caused a tripping risk for pedestrians. Creating that risk and attempting to ameliorate it by use of the yellow tape and signage was a policy decision, inasmuch as, in light of staffing limitations, it balanced the public’s desire to use Washington Square against the need to protect the public from the tripping risk.”
Moore Wells explained that this “is the type of policy decision that has been found sufficient to satisfy the second part of the discretionary function exception test”, and that “the discretionary function exception applies and this court lacks jurisdiction.”
The plaintiff was represented by M. Gerard Bradley of Brooks Bradley & Doyle, in Media.
The defendant was 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