Parrish v. United States

157 F. Supp. 3d 434, 2016 U.S. Dist. LEXIS 602, 2016 WL 67278
CourtDistrict Court, E.D. North Carolina
DecidedJanuary 5, 2016
DocketNO. 5:13-CV-794-FL
StatusPublished
Cited by5 cases

This text of 157 F. Supp. 3d 434 (Parrish v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parrish v. United States, 157 F. Supp. 3d 434, 2016 U.S. Dist. LEXIS 602, 2016 WL 67278 (E.D.N.C. 2016).

Opinion

ORDER

LOUISE W. FLANAGAN, United States District Judge

This matter is before the court on defendant’s motion to dismiss the case for lack of subject matter jurisdiction, made pursuant to Federal Rule of Civil Procedure 12(b)(1). The issues raised have been briefed fully and in this posture are ripe for ruling. For the reasons given below, defendant’s motion is granted in part and denied in part.

STATEMENT OF THE CASE .

Plaintiff initiated this action by complaint .filed November 14, 2013. Plaintiff alleges that she fell on a negligently maintained sidewalk at a United States Post Office and asserts a single count of negligence under North Carolina law, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1) & § 2671 et seq. Specifically, plaintiff alleges defendant negligently failed to repair the damaged sidewalk, negligently inspected the premises, and negligently failed to warn patrons of the potentially dangerous condition. In addition, plaintiff contends that defendant’s active negligence contributed to the dangerous condition that caused her fall.

After a period of discovery, defendant filed a first motion to dismiss for lack of subject matter jurisdiction, or in the alternative motion for summary judgment. By order entered July 27, 2015, the court granted in part and denied in part defendant’s motion. In particular, the court held that it, lacked jurisdiction over plaintiffs negligence claim attacking defendant’s failure to repair the damaged sidewalk because defendant had engaged an independent contractor to maintain the premises. In addition, the court held that defendant was entitled to summary judgment on plaintiffs negligence claim to the extent [438]*438that claim was grounded in defendant’s creation of the dangerous condition that caused her fall, as plaintiff failed to adduce any evidence of defendant’s involvement. However, the court’s order left undisturbed plaintiffs claim-inasmuch as it related to three specific failings: failure to inspect the premises, failure to contact the contractor and demand necessary repairs based on that inspection, and failure to post warning signs after that inspection.

On August 14, 2015, defendant filed the instant motion to dismiss for lack of subject matter jurisdiction. In its motion, defendant argues that the court lacks jurisdiction under the so-called “discretionary function exception” to the FTCA. 28 U.S.C. § 2680(a). In particular, defendant contends that its decision to engage a third-party contractor,1 a recognized discretionary function, divests the court of jurisdiction as to the remaining grounds supporting plaintiffs claim. In response, plaintiff contends that, under the specific facts of this case, defendant’s agreement with its third-party contractor was not broad enough to preclude liability for defendant’s alleged failures, and that, in addition, defendant’s failure to inspect the premises, demand its contractor undertake repairs, and warn of potential dangers, are not themselves discretionary functions.

STATEMENT OF FACTS Defendant, through the United States Postal Service (the “Postal Service”), operates a Post Office location in Selma, North Carolina. (See Lease Agreement, DE 14-1, l).1 Defendant does not own the building in which the Post Office is located. (See id.). Rather, defendant rents the space. (Id. passim).

On February 21, 2011, plaintiff visited the Selma Post Office. (Compl., DE 1, ¶ 8). During that visit, plaintiff tripped on an uneven portion of the sidewalk, which connected the parking lot to the Postal facility. (Id. ¶¶ 10-12). As a result of her fall, plaintiff suffered a significant injury to her left hand. (Id. ¶¶ 12-13). Plaintiff alleges that her injury was caused by a lack of warning, or a failure to initiate repair, and that had the Postal Service’s agents or employees properly inspected the premises and subsequently demanded repairs by the contractor, or otherwise warned patrons of the potential hazard posed by the uneven sidewalk, she would not have been injured. (See id. passim).

COURT’S DISCUSSION

A. Standard of Review

The discretionary function exception excludes certain discretionary acts from the FTCA’s broad waiver of sovereign immunity. Where the United States has not waived its sovereign immunity, the court lacks subject matter jurisdiction. Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995). A Rule 12(b)(1) motion challenges the court’s subject matter jurisdiction, and the plaintiff bears the burden of showing that federal jurisdiction is appropriate when challenged by the defendant. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). Such a motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, [439]*439apart from the complaint. Adams, 697 F.2d at 1219. Under the former assertion, the moving party contends that the complaint “simply fails to allege facts upon which subject matter jurisdiction can be based.” Id. In that case, “the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. “[T]he facts alleged in the complaint are assumed true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter - jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir.2009). When the defendant challenges the factual predicate of subject matter jurisdiction, a court “is to regard the pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). The nonmoving party “must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.” Id.

B. Analysis

1. Legal Principles

The Federal Tort Claims Act authorizes suits against the United States for damages

for injury or loss of property, or 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the 'place where the act or omission occurred.

28 U.S.C. § 1346(b). The United States is liable for such tort claims “in the same manner and to the same extent as a private individual under like circumstances.” § 2674.

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Cite This Page — Counsel Stack

Bluebook (online)
157 F. Supp. 3d 434, 2016 U.S. Dist. LEXIS 602, 2016 WL 67278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parrish-v-united-states-nced-2016.