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Graham v. United States

United States District Court, D. South Carolina, Beaufort Division

March 1, 2018

CINDY GRAHAM, Plaintiff,



         This matter is before the court on a motion to dismiss filed by the defendant the United States (“United States”). For the reasons set forth below, the court grants the government's motion. Accordingly, the court dismisses the government as a party to this suit.

         I. BACKGROUND

         This case arises out of a slip-and-fall accident that occurred at the Naval Weapon Station, Joint Base Charleston Commissary (“NWS Commissary”) at 1797 Red Bank Road, Building 764 in Goose Creek, SC. Plaintiff Cindy Graham (“Graham”) alleges that on July 10, 2015, she was an invitee shopping for groceries at the NWS Commissary when she fell on a slippery floor due to water dripping from a leaking air conditioner. The NWS Commissary is operated by the Defense Commissary Agency (“DeCA”), a federal agency affiliated with the United States Department of Defense. On July 10, 2015, DeCA entered into a contract with Reliant Services, Inc. (“Reliant”) to manage the NWS Commissary, and this contract was in effect on the date of Graham's fall.

         Graham contends that as a result of the fall she suffered significant injuries. She further alleges that the cause of the water on the floor was a malfunctioning air conditioner unit, which was owned, selected, and installed by the defendants. Graham filed a complaint under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. alleging that defendants were negligent by failing to maintain the premises, failing to exercise due care, failing to act as a reasonable person in the situation, failing to post signs, failing to inspect premises, failing to warn, failing to hire, train, and manage adequate personnel, failing to develop adequate policies and procedures, and failing to take actions to correct known problems. Graham amended the complaint on July 17, 2017, and the amended complaint is now the operative complaint.

         The government filed a motion to dismiss on July 31, 2017, which Graham responded to on September 12, 2017. The government replied on September 27, 2017. The court held a hearing on January 16, 2018. The motion has been fully briefed and is now ripe for the court's review.


         Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss for “lack of subject-matter jurisdiction.” The determination of subject matter jurisdiction must be made at the outset before any determination on the merits. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998). “The plaintiff bears the burden of persuasion if subject matter jurisdiction is challenged under Rule 12(b)(1).” Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). If the plaintiff cannot overcome this burden, the claim must be dismissed. Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005). In ruling on a Rule 12(b)(1) motion, “the court may consider exhibits outside the pleadings” and “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Williams, 50 F.3d at 304 (internal citations and quotations omitted).


         The government moves to dismiss all of Graham's claims against it, contending that the FTCA's discretionary function exception and the independent contractor exception bar this action against the government. ECF No. 26 at 1. The court addresses each argument in turn.

         1. Discretionary Function Exception

         The government first argues that the discretionary function exception bars this FTCA claim. Under 28 U.S.C. § 2680(a), liability shall not attach to:

Any 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). There is a two-step analysis to determine whether the “discretionary function” exception is appropriate. See United States v. Gaubert, 499 U.S. 315, 322 (1991). First, the court must determine whether the governmental action at issue “involves an element of judgment or choice.” Berkovitz by Berkovitz v. UnitedStates, 486 U.S. 531, 536 (1988). If the action is “the subject of any mandatory federal statute, regulation, or policy prescribing a specific course of action, ” then the action does not involve an element of choice. Baum v. United States, 986 F.2d 716, 720 (4th Cir. 1993); see also U.S. Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009) (“A function is non-discretionary ...

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