United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO DISMISS
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
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.
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]. 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. The Court, as it must, presumes the
accuracy of Plaintiff's well-plead allegations and draws
all reasonable inferences in her favor.
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.
site of Plaintiff's fall in the atrium of the Tip
O'Neill Building. [ECF No. 15-1].
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.
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.
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.
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.
medical expenses totaled $5, 131. Compl. ¶ 17.
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].