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Estabrook v. United States

United States District Court, D. Massachusetts

December 13, 2018

PATRICIA ESTABROOK, Plaintiff,
v.
UNITED STATES OF AMERICA [GENERAL SERVICES ADMINISTRATION] Defendant.

          MEMORANDUM AND ORDER ON MOTION TO DISMISS

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE

         On September 3, 2014, Plaintiff Patricia Estabrook fell and suffered injuries while visiting the Tip O'Neill Building, a federal building owned and operated by the General Services Administration (“GSA”). Thereafter, on August 31, 2016, Estabrook filed the instant lawsuit in which she asserts a negligence claim against the GSA under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., based on the design of certain stairs in the atrium of the Tip O'Neill Building and the GSA's failure to warn Plaintiff of the associated danger. [ECF No. 1] (“Compl.”). The government moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and 12(b)(6) for failure to state a claim upon which relief can be granted. [ECF No. 14]. For the reasons set forth below, the motion is GRANTED.

         I. BACKGROUND

         The following facts are drawn from the Complaint, its attachments, and a picture attached to the government's motion that Plaintiff does not contest the authenticity of. [ECF Nos. 1, 1-4, 15-1].[1] On a motion to dismiss pursuant to Rule 12(b)(1), the Court “may consider whatever evidence has been submitted.” Carroll v. United States, 661 F.3d 87, 94 (1st Cir. 2011) (citation omitted). Plaintiff attached several photographs to her opposition to the motion to dismiss that were apparently intended to show that the stairs at issue were hard to see, but the Court will not consider these photographs as it cannot assess the accuracy of the photographs or whether they have been enhanced in any way and because the photographs appear to be offered primarily to support a theory of liability based on the appearance of the stairs that is not asserted in the Complaint.[2] The Court, as it must, presumes the accuracy of Plaintiff's well-plead allegations and draws all reasonable inferences in her favor.

         On September 3, 2014, Plaintiff visited the Tip O'Neill Building, which is owned, operated, managed, and maintained by the GSA, to obtain a passport. Compl. ¶¶ 13, 14; [ECF No. 1-4 at 1]. Plaintiff fell down two stairs in the atrium. Compl. ¶ 15. The stairs did not have handrails, and the atrium had no signs warning visitors about the danger of using the stairs. Compl. ¶ 15.

         (Image Omitted)

         The site of Plaintiff's fall in the atrium of the Tip O'Neill Building. [ECF No. 15-1].

         As a result of the fall, Plaintiff's glasses broke, and she had some bruising including a bruised nose and knees, and a headache. [ECF No. 1-4 at 2-4]. The day after her fall, Plaintiff saw her primary care physician, who instructed her to return if needed and to seek urgent medical attention if her condition worsened. Id.

         On September 8, 2014, Plaintiff felt soreness and numbness in her cheek and went to West Wing Hospital, where a nurse practitioner examined Plaintiff and a CT scan was performed. Id. The CT scan did not reveal any acute injuries and Plaintiff was discharged. Id.

         On September 17, 2014, Plaintiff saw her dentist and complained of tooth pain that began with her fall. Id. Her dentist took x-rays and performed an examination, but found that her teeth did not appear to be injured. Id.

         As a result of continued swelling of her left cheek, Plaintiff saw her primary care physician again on September 24 and October 7, 2014. Id. Her physician instructed her to take Advil and apply a cool wash cloth. Id.

         Plaintiff's medical expenses totaled $5, 131. Compl. ¶ 17.

         The United States argues that this case should be dismissed because the GSA was not negligent as a matter of law, and because the Court lacks subject matter jurisdiction under the discretionary function exception to the FTCA. [ECF No. 15]. Plaintiff contends that negligence is a question of fact and that the discretionary function exception should not apply because the case does not require the second-guessing of an administrative decision based on social, economic, or political policy. [ECF No. 16 at 8].

         II. ...


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