LEVITT v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTOINETTE LEVITT, et al., CIVIL ACTION

Plaintiffs,

NO. 20-5455

v.

UNITED STATES,

Defendant.

MEMORANDUM

MARSTON, J. February 22, 2022

Plaintiff Antoinette Levitt was leading a tour through Independence National Historical

Park (the “Park”), when she allegedly tripped on a loose brick, fell, and sustained injuries. (Doc.

No. 1 ¶ 1.) On November 2, 2020, Mrs. Levitt, together with her husband, Plaintiff Robert

Levitt, brought negligence and tortious interference claims against the United States under the

Federal Tort Claims Act (“FTCA”), alleging that the United States (acting by and through the

National Park Service)1 negligently inspected and maintained the Park’s brick walkways and

negligently failed to warn the Park’s visitors of the dangers posed by brick walkways. (Id.)

Presently before the Court is the Government’s motion to dismiss for lack of subject matter

jurisdiction. (Doc. No. 19.) For the reasons below, the Government’s motion is granted.2

1 The Complaint originally named as Defendants the National Park Service and the Park, but the

parties stipulated to amend the caption “to correctly name the United States of America as the sole

Defendant.” (Doc. No. 17)

2 The parties requested oral argument; however, pursuant to Local Rule 7.3(f), “[t]he court may

dispose of a motion without oral argument.”

I. FACTUAL BACKGROUND

A. Mrs. Levitt’s Fall

On May 26, 2018, Mrs. Levitt was guiding a tour through Philadelphia’s Old City

neighborhood and passed by Christ Church, a historic property at the northwest corner of Second

and Market Streets. (Doc. No. 1 ¶ 1.) As she made her way along a brick walkway near the

church, she tripped over a loose brick and fell, causing her to fracture her left hand and

experience swelling and bruising on her head and face. (Id. ¶¶ 11, 17.) She has had to undergo

multiple surgeries and attend physical therapy, and she continues to suffer from post-traumatic

stress, anxiety and depression, sleeplessness, and various other “ills and injuries.” (Id. ¶¶ 17–

18.) The accident has also deprived Mr. Levitt of his wife’s “love, companionship, comfort,

affection, society, moral guidance, intellectual strength, and physical assistance.” (Id. ¶ 27.)

B. Independence National Historical Park

Christ Church and the surrounding areas lie within the Park. (Id. ¶ 9.) The Park is

administered and regulated by the National Park Service, a bureau within the Department of the

Interior charged with conserving natural and historic objects. (Doc. No. 19 at 4.) Congress

created the Park in 1948 to “preserv[e] for the benefit of the American people . . . historical

structures and properties of outstanding national significance located in Philadelphia,

Pennsylvania, and associated with the American Revolution and the founding and growth of the

United States.” 16 U.S.C.A. § 407m. The Park spans “approximately 55 acres on 20 city blocks

within Philadelphia” and “is home to iconic symbols of democracy as Independence Hall and the

Liberty Bell.” (Doc. No. 19, Ex. A, ¶ 4.) It contains 56 properties (many of which date back to

the 18th century) and “more than 13 miles of sidewalks and paved trails . . . , nearly all of which

are stone or brick.” (Id. ¶ 5.) The stone and brick walkways are important features to maintain

the Park’s “historic and cultural character.” (Id.)

The Park has 50 “direct labor” maintenance employees who attend to maintenance issues

at the Park’s buildings, grounds, and walkways; however, the maintenance department rarely

operates at full staff due to retirement and personnel turnover. (Id. ¶ 6.) The Park employs two

masons who are responsible for maintaining the stone and brickwork throughout the Park. (Id. ¶

7.) The Park’s annual, non-labor maintenance budget is $710,000, but the Park’s annual, non-

labor maintenance costs regularly exceed $1,000,000, requiring the Park to reallocate funds as

possible. (Id. ¶ 6.) Park employees are directed to report any maintenance issues they observe,

and the maintenance team attempts to respond to those issues and any hazards visitors may

report in a timely manner. (Id. ¶ 8.)

II. LEGAL STANDARD

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A motion to dismiss pursuant to Rule 12(b)(1) may present either a facial or a factual

attack to the court’s subject matter jurisdiction over the case. CNA v. United States, 535 F.3d

132, 139 (3d Cir. 2008). A facial attack challenges the sufficiency of the pleadings. Id. Where a

motion to dismiss is construed as a facial attack, “the court must consider the allegations of the

complaint as true” and dismiss a case where the pleadings fail to allege that the case is within the

court’s subject matter jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884,

891 (3d Cir. 1977). In contrast, a factual attack challenges the factual basis of the court’s

jurisdiction. CNA, 535 F.3d at 139. Where a motion to dismiss is construed as a factual attack,

the plaintiffs bear the burden of proving subject matter jurisdiction, and “no presumption of

truthfulness attaches to the allegations of the plaintiffs.” Id. In considering such a motion, the

court is permitted to “make factual findings which are decisive to the issue.” Id.

Here, the Government “presents a factual challenge to jurisdiction,” (Doc. No. 19 at 11),

so the Court is permitted to make factual findings on the question of jurisdiction, see CNA, 535

F.3d at 139.

B. Federal Tort Claims Act

“The United States of America, as a sovereign, is immune from suit unless it consents to

be sued.” Merando v. United States, 517 F.3d 160, 164 (3d Cir. 2008) (citing United States v.

Mitchell, 445 U.S. 535, 538 (1980)). Through the FTCA, Congress has abrogated the United

States’ immunity and permits suits against the Government “for money damages . . . for personal

injury or death caused by the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or employment.” 28 U.S.C. 1346(b)(1).

This waiver of immunity is not without bounds. It does not apply to

[a]ny claim based upon an act or omission of an employee of the

Government, exercising due care, in the execution of a statute or

regulation, whether or not such statute or regulation be valid, or

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 purpose of this exception, the “discretionary function exception,” is to “prevent

judicial ‘second-guessing’ of legislative and administrative decisions grounded in social,

economic, and political policy through the medium of an action in tort.” United States v. S.A.

Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984).

Courts must conduct a two-step inquiry to determine whether the challenged conduct falls

within the discretionary function exception. United States v. Gaubert, 499 U.S. 315, 322–24

(1991). “First, a court must determine whether the act giving rise to the alleged injury and thus

the suit involved an element of judgment or choice.” S.R.P. ex rel. Abunabba v. United States,

676 F.3d 329, 333 (3d Cir. 2012) (citing Gaubert, 499 U.S. at 322). If so, a court moves to the

second prong of the inquiry and must “determine whether the challenged action or inaction is of

the kind that the discretionary function was designed to shield.” S.R.P., 676 F.3d at 333. “[T]he

exception protects only governmental actions and decisions based on considerations of public

policy.” Gaubert, 499 U.S. at 323 (cleaned up). “The focus of the inquiry is not on the agent’s

subjective intent in exercising the discretion conferred by statute or regulation, but on the nature

of the actions taken and on whether they are susceptible to policy analysis.” Id. at 325.

Although plaintiffs bear the burden of establishing that their claim falls within the FTCA,

the Government bears the burden of establishing that the challenged conduct falls within the

discretionary function exception. S.R.P., 676 F.3d at 333.

III. ANALYSIS

Before engaging in the two-step inquiry, we must identify the challenged conduct. Id.

Plaintiffs allege that the Park negligently failed to maintain its brick walkways, inspect its brick

walkways, and warn its visitors of the dangers of traversing brick walkways. (Doc. No. 1 ¶ 23.)

Thus, the challenged conduct is the Park’s judgment regarding whether and how to maintain and

inspect its brick walkways and whether to warn visitors of the risks associated with travelling

over such walkways.

A. The Challenged Conduct Was Discretionary

The first prong of the two-step inquiry requires the court to consider whether the

challenged conduct “involved an element of judgment or choice.” S.R.P., 676 F.3d at 333. If a

“federal statute, regulation, or policy specifically prescribes a course of action for an employee to

follow,” the discretionary function exception does not apply because “the employee has no

rightful option but to adhere to the directive.” Berkovitz ex rel. Berkovitz v. United States, 486

U.S. 531, 536 (1988). The Government argues that the challenged conduct is discretionary

because no “statute, regulation or policy . . . restricts the discretion of the Park or its employees

in making maintenance and safety decisions,” and no statute “mandated the actions that

[Plaintiffs] assert[] were warranted.” (Doc. No. 19 at 13.) Plaintiffs disagree and assert that the

Park was subject to “an affirmative mandate, through statutes and internal policies, to conduct a

program of preventative and rehabilitative maintenance.” (Doc. No. 20-1 at 14.)

Various statutes, regulations, and internal policies give the National Park Service

discretion on how to best maintain and inspect its parks and on whether and how to warn visitors

of potential risks. The National Park Service is charged with regulating its parks “by means and

measures that conform to [its] fundamental purpose [of] conserv[ing] the scenery, natural and

historic objects, and wild life . . . .” 54 U.S.C.A. § 100101(a). “To implement this statutory

directive, the [National Park Service] has adopted various policies and internal operating

procedures, including those related to public safety.” S.R.P., 676 F.3d at 334–35.

The National Park Service’s 2006 Management Policies3 “do not impose park-specific

visitor safety prescriptions.” Nat’l Park Serv., Management Policies 2006, at 115, available at

https://www.nps.gov/orgs/1548/upload/ManagementPolicies2006.pdf. Rather, the Management

Policies grant each park’s superintendent the discretion to address safety concerns:

The Service will strive to identify and prevent injuries from

recognizable threats to the safety and health of persons and to the

protection of property . . . . When practicable and consistent with

congressionally designated purposes and mandates, the Service will

reduce or remove known hazards and apply other appropriate

measures, including closures, guarding, signing, or other forms of

education. . . .

3 Both parties agree that the 2006 Management Policies were in effect in May 2018, when Mrs.

Levitt fell. (See Doc. No. 19 at 15; Doc. No. 20 at 14.)

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. Examples include decisions about whether to install

warning signs or artificial lighting, distribute weather warnings or

advisories, initiate search-and-rescue operations or render

emergency aid, eliminate potentially dangerous animals, close roads

and trails or install guardrails and fences, and grant or deny

backcountry or climbing permits. . . .

Id. The Management Policies also require each park to conduct “a regular, periodic inventory of

its facilities” to ensure the facilities are being maintained in the most cost-effective way and to

conduct “a program of preventative . . . maintenance . . . to provide a safe . . . environment for

park visitors and employees.” Id. at 138.

With respect to Independence National Historic Park specifically, the Secretary of the

Interior is authorized, “in his discretion” to “maintain [the Park] . . . in such manner as he shall

consider to be in the public interest.” 16 U.S.C.A. § 407s (emphasis added). Although there is

no written policy, the Park manages its walkways in line with the Management Policies’ general

directives, and its maintenance plan “balance[s] the interest of visitor safety within the

constraints imposed by the Park’s congressionally-mandated mission, NPS policy, and budget

limitations.”4 (Doc. No. 19, Ex. A, ¶ 10.)

In sum, the policies require the Park “to strike a balance between” preservation of the

Park’s historic nature and public safety, but they ultimately leave the decision of how to strike

that balance to the Superintendent’s discretion. See S.R.P., 676 F.3d at 335. Nowhere do the

4 Plaintiffs point the Court to the opinion in Borlandoe v. United States, 86 F. Supp. 2d 493 (E.D.

Pa. 2000), which states that the Park had a policy that “if a brick is raised by ¼ inch, that condition

requires a report to be made and the defect to be repaired as soon as possible.” Id. at 494. This opinion is

over 20 years old, and the Park’s current superintendent was not familiar with that policy and was not

able to identify any record memorializing such policy. (Doc. No. 19, Ex. A, ¶ 11.) Plaintiffs have not

identified any evidence that any such policy was in effect on the date of Mrs. Levitt’s fall.

relevant statutes, regulations, or policies “specifically dictate” how the Park’s personnel are to

inspect and maintain the Park’s walkways or post signage warning of the dangers of walking on

brick. Id. This is exactly the kind of guidance that the Third Circuit and other district courts

within this Circuit have found “involved an element of judgment or choice.”

For instance, in S.R.P., the plaintiff, a minor child, was bitten by a barracuda while

visiting Buck Island, an island near the U.S. Virgin Islands that is maintained by the National

Park Service. Id. at 330. The plaintiff brought suit against the National Park Service under the

FTCA, alleging that it acted negligently by failing to post signage warning visitors of the

presence of barracudas in the water. Id. Analyzing the exact same statutory provision and nearly

identical Management Policies, the Third Circuit found that the governing policies “[did] not

specifically dictate the way in which park officials should balance these concerns [i.e.,

preservation and public safety] or the specific actions that must be taken in response to particular

problems.” Id. Because “no statute, regulation, or policy mandated any particular method for

warning about marine hazards at Buck Island,” the panel found that the challenged conduct

“involved an element of judgment or choice.” Id. at 335–36.

Similarly, in Whitaker v. United States, CIVIL ACTION No. 19-4993, 2020 WL

6504551, (E.D. Pa. Nov. 5, 2020), the plaintiff tripped over a crack in a trail at Valley Forge

National Park and brought suit against the National Park Service under the FTCA, alleging the

Service “negligently failed to maintain the trail in a safe condition.” Id. at *1. The court

analyzed substantially the same policies that govern here and found that the relevant policies

“[did] not dictate a specific manner in which park officials should identify or respond to any

safety concerns.” Id. at *3. Because those polices “leave[] the means of identifying and

mitigating public safety concerns to the discretion of the superintendent,” the court held that

“inspection and maintenance of park trails involves an element of judgment or choice.” Id. at *4;

see also Merando v. United States, 517 F.3d 160, 172 (3d Cir. 2008) (concluding that the park’s

failure to properly address hazardous trees involved an element of judgment because the relevant

policies “did not mandate any particular methods of hazardous tree management”); Lingua v.

United States, 801 F. Supp. 3d 320, 327 (M.D. Pa. 2011) (holding that the park’s trail

management safety measures were discretionary because the relevant policies provided “no

specifically prescribed course of action regarding the employment of safety measures”); Miller v.

United States, 642 F. Supp. 2d 437, 442 (M.D. Pa. 2009) (concluding that the park’s

superintendent’s decision not to place a warning sign near a drainage ditch was discretionary).

So too here. The policies clearly leave the Park’s decisions on how to inspect and

maintain walkways and whether to post warning signs to the Superintendent’s discretion.

Nevertheless, Plaintiffs argue that the policy requiring parks to conduct inspections and engage

in preventative maintenance is not discretionary because it requires inspections and preventative

maintenance. (Doc. No. 20 at 14–15.) This argument is unavailing. Even though the

Management Policies require such conduct, they offer no tailored guidance on how to engage in

that conduct. Instead, the policies explicitly leave decisions about public safety matters

(including park maintenance and inspection and the decision whether to post warning signage) to

the “discretion” of the Park’s Superintendent who must “work within the limits of funding and

staffing.” Nat’l Park Serv., Management Policies 2006, at 115. The plaintiffs in Whitaker made

a similar argument, which the court rejected, explaining that the policy “unambiguously leaves

the means of identifying and mitigating public safety concerns to the discretion of the

superintendent” by requiring the superintendent to “mitigate risks ‘within the limits of available

resources.’” Whitaker, 2020 WL 6504551, at *4.

Accordingly, the Government has shown that the Park’s inspection and maintenance

practices and decision not to post warning signage “involved an element of judgment or choice.”

B. The Challenged Conduct Is Susceptible to Policy Analysis

The Court must now consider whether the challenged conduct “is of the kind that the

discretionary function was designed to shield.” S.R.P., 676 F.3d at 333. “When established

governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows

a Government agent to exercise discretion, it must be presumed that the agent’s acts are

grounded in policy when exercising that discretion.” Gaubert, 499 U.S. at 324. Despite this

presumption, the Government “must establish that the challenged conduct is ‘grounded in the

policy of the regulatory regime,’ and ‘based on the purposes that the . . . regime seeks to

accomplish.’” S.R.P., 676 F.3d at 336 (quoting Gaubert, 499 U.S. at 325 & n.7). That is, “there

must be a rational nexus between the Government’s decision and social, economic, and political

concerns.” Id.

As discussed above, the National Park Service’s Management Policies allow the Park to

exercise discretion with respect to the challenged conduct, so the challenged conduct is

presumptively grounded in policy, and the Third Circuit and district courts have held that

conduct similar to that challenged here (including decisions on how to inspect and maintain trails

and whether to post warning signs) is susceptible to policy analysis.

For instance, in Merando, the Third Circuit explained that the National Park Service’s

decision “to expend the bulk of its resources on high-visitor use areas” was a policy decision

driven, in part, by the fact that the park “[knew] it could not inspect every tree in the Parks.” 517

F.3d at 174; see also Whitaker, 2020 WL 6504551, at *5 (explaining that a park’s method of

inspecting trails by having park staff observe trail conditions and report hazards they may come

upon was the result of a decision regarding “how best to utilize its resources to balance the

interests of public safety and conservation” and concluding that such decisions are “susceptible

to policy analysis”). Similarly, here, given budgetary and personnel restrictions, it was not

feasible for the Government to check every single brick on the 13 miles of brick walkways

throughout the Park. They made a policy decision to have Park staff informally inspect the

grounds as they moved through the Park and to address maintenance issues as Park staff and

visitors reported them.

Further, in S.R.P., the Third Circuit explained that the decision not to post signage

warning of the risk of a barracuda attack was susceptible to policy analysis because the National

Park Service had to balance the benefit of such a warning with costs, such as the “risk of

numbing [the Park’s] visitors to all warnings.” 676 F.3d at 337; see also Miller, 642 F. Supp. 2d

at 443 (concluding that the park’s decision not to place a warning sign near a drainage ditch was

susceptible to policy analysis). Likewise, here, the Park had to engage in the same kind of cost–

benefit analysis in determining whether to post a sign warning visitors of the risks of walking on

brick. The Park’s decision not to post warning signs was a policy decision impacted by

competing considerations, including public safety on the one hand and budgetary restraints, the

need to maintain the Park’s historic aesthetic, and the desire not to overload the Park’s visitors

with too many warnings on the other.

These judgments are exactly the kinds of policy decisions the discretionary function

exception is intended to keep parties from second-guessing. S.R.P., 676 F.3d at 337.

* * *

Because the Park’s decisions regarding how to inspect and maintain the brick walkways

and whether to warn visitors of the risks associated with walking on brick paths involved an

element of judgment or choice and are susceptible to policy analysis, the discretionary function

exception applies, and the Court lacks subject matter jurisdiction.

IV. CONCLUSION

For the reasons above, the Government’s motion to dismiss is granted. An appropriate

Order follows.