# LEVITT v. United States

> District Court, E.D. Pennsylvania · February 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10402756

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** February 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10402756

## How later opinions describe it (automated extraction)

- concluding that the park’s superintendent’s decision not to place a warning sign near a drainage ditch was discretionary
- concluding that the park’s decision not to place a warning sign near a drainage ditch was susceptible to policy analysis
- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10402756. Public record. Not legal advice.