ORDER
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
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,
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).
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,
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.
The FTCA does not, however, operate as a blanket waiver of sovereign immunity. “Congress was careful to except from the Act’s broad waiver of immunity several important classes of tort claims.” United States v. S.A. Empressa de Viacao Aerea Rio Grandense (Varig Airlines),
[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.
§ 2680(a). The second clause of § 2680(a) is known as the “discretionary function exception.” It “marks the boundary between Congress’ willingness to impose tort liability upon the United States ánd its desire to protect certain governmental activities from exposure to suit by private individuals.” Varig Airlines,
To determine whether the discretionary function exception bars suit against, the United States the court employs a two-step analysis. Berkovitz v. United States,
If the conduct involves an element of judgment or choice, the court still must determine “whether that judgment is of the kind the discretionary function exception was designed to shield.” Id at 322-23,
Analysis of the second prong does not require proof that the agent actually considered policy in exercising his or her discretion. Rather, the court objectively inquires into, “the nature of the actions taken and ... whether they are susceptible to policy analysis.” Id. at 325,
2. Effect of Hiring a Third-Party Contractor
The government argues that the discretionary function exception insulates it from liability on all claims related to its duty to inspect and demand repair, as well as its duty to warn, because those decisions were embraced by the overarching decision to engage a third-party contractor, which is itself a discretionary decision. The government’s argument is too broad and, in light of the facts of this case, inapplicable here. The government failed to delegate its duty to inspect the premises and, thus, failed to delegate its responsibilities as a landowner.
It is undisputed that the government delegated to its contractor the duty to perform repairs. However, the decision to engage a contractor for a limited purpose does not implicate the discretionary function exception so as to insulate the United States from all claims or in every case. See, e.g., McMellon v. United States,
The government did not delegate its duty to inspect. In particular, the Lease Agreement provides only that the contractor “may” inspect the premises, not must. (Lease Agreement, 7). In addition, the Lease Agreement does not provide the contractor.unfettered access to the premises. Rather, it requires the contractor give “reasonable notice to the facility manager” before entering onto and inspecting the premises. (Id.). Clause 10 of the Lease Agreement’s Maintenance Rider goes even further, suggesting that the Postal Service affirmatively retained the obligation to inspect. (See id. at 8). Specifically, that clause provides that if the premises is “damaged or destroyed by fire or other casualty, Acts of God, of a public enemy, riot or insurrection, vandalism, or ... otherwise determined by the Postal Service to be unfit for use . and occupancy, or whenever there is a need for maintenance, repair, or replacement which is the [contractor’s] obligation” that the Postal Service “will require the [contractor] to rebuild or repair the premises.” (Id.). The use of “determined by the Postal Service,” as' well as “[the Postal Service] will require,” strongly suggests that the Postal Service retained the duty to inspect the premises. And, thus, the court so holds.
The United States advances a different interpretation of both Williams and Viault, one that would provide a defense against all claims in all cases where an independent contractor was retained for some limited purpose. Not only does the government’s suggested reading of those cases lack support as an impermissible categorical approach to the discretionary function exception, see, e.g., McMellon,
For example, in Williams the court held that the government’s alleged negligent inspection of a property, and subsequent failure to warn of a potential hazard, was a non-actionable discretionary function, given that the government had retained a contractor for those purposes. Id. at 310, The plaintiff sued the United States when, on a particularly rainy day, she slipped in a puddle that had formed inside the lobby of a building leased by the government. Id. at 302-03. The plaintiff contended that the government had negligently inspected' its property and, as a result of that negligent inspection, had failed to warn patrons of potential hazards.
As relevant here, the United States asserted the- discretionary function exception, arguing that its decision to engage a third-party contractor insulated it from liability. Id. The government’s agreement with its contractor obligated the contractor to inspect and monitor all work performed on the premises, as well as to “take all necessary precautions to prevent injury to
Similarly, in Viault,
The Viault case is non-specific about the agreement between the government and Waste Industries. However, an analysis of the language used in that document will bring to light distinctions between that case and the instant matter. As gleaned from the underlying documentation, the contract between the government and Waste Industries obligated Waste Industries to provide safe equipment. In particular, Waste Industries was required to intermittently supply the government with freight trailers that “conform[ed] to the requirements of [the] contract,” which, among other things, required those trailers be in “good, safe, and operable condition.” Attachment to Gov’t’s Motion to Dismiss, Viault v. United States, 4:07-CV-41-H (E.D.N.C. June 5, 2008), pp. 8, 30. In addition, the contractor was required to remedy “[u]nsafe conditions and practices ... immediately.” Id. at 34. A fair reading of the contract suggests that the government had entrusted to Waste Industries the burden of inspecting the freight trailers delivered by it on an as-needed basis. Thus, the government delegated its duty to inspect the trailers, was entitled to rely on Waste Industries’s contractual representations as to the safety of the freight trailers it delivered, and was relieved of the duty to warn.
This case stands in stark contrast to both Williams and Viault. For example, the contract before this court lacks the comprehensive language necessary to conclude that the Postal Service had delegated to its contractor the duty to inspect the Post Office. In addition, the contract does not provide the contractor with unfettered access to the property and, further, suggests that the Postal Service retained the obligation to inspect. Because the government failed to delegate its duty to inspect, the court cannot conclude that the discretionary function exception insulates it from
3. Challenged Actions Individually
Having concluded that the government’s use of an independent contractor does not insulate it from liability, the court next considers whether the government’s challenged actions, individually, were “discretionary.” See Gaubert,
a. Inspection
The complaint is unclear as to whether defendant either negligently inspected the premises or failed to inspect it altogether. However, either theory may be actionable under the circumstances. See Rich v. United States,
Moreover, it is difficult to imagine an social, economic, or political justification for the' Postal Service’s failure to inspect that also is grounded in its statutory purpose. The purpose of the Postal Service is statutorily defined, and is best summarized as the provision of “prompt, reliable, and efficient [mail] services.” § 101(a). The decision to not post warning signs does not further this statutory policy in a social, economic, or political way. Although it could be argued that warning would divert resources, such as limited personnel, or otherwise have an adverse economic impact on the Postal Service, such considerations are not “grounded in” its statutorily-established purpose. At best, those considerations are tangentially related to the effective provision of postal services. However, “[t]he mere association of a decision with regulatory concerns is not enough” to warrant immunity. Cope,
b. Demand Repair
Because in this case inspection is a non-discretionary duty, the court next must analyze whether the Postal Service was required to demand its contractor undertake repairs on the premises. As relevant to the first step, plaintiff rightly concedes that no statute or regulation makes repair of a Postal premises mandatory. In fact, the law suggests that the Postal Service may exercise discretion in how to “maintain [its] buildings ... [and] facilb ties.” 39 U.S.C. § 401(6). The law prescribes no maintenance regimen; rather, it leaves it to the Postal Service to determine the best method for the upkeep of its various facilities.
Where the statute prescribes no mandatory upkeep requirement, the court next must determine whether the Postal Service’s failure to demand repair was a “discretionary” decision of the type protected by the FTCA. It was. The court presumes that the decision not to demand repair was discretionary because it was “within the purview of the policies behind the statute[].” Gaubert,
c. Duty to Warn
However, the court reaches a dif~ ferent conclusion as to the Postal Service’s alleged failure to inspect the Post Office premises and warn of potential hazards. In light of the statutory and regulatory purpose of the United States Postal Service, the court holds that the Postal Service’s failure to warn patrons of potential tripping hazards, in this case, was not susceptible to policy analysis, and thus is not insulated from liability by the discretionary function exception. On the facts of this case, the court cannot conclude that the exercise of the duty to warn was discretionary, because warning does not implicate any social, economic, or political policy-
Again, the Postal Service may exercise its discretion to “maintain buildings, facilities, equipment, and other improvements.” 39 U.S.C. § 401(6). However, there is no explicit obligation to warn patrons of potential hazards. Nevertheless, even though the absence of a mandatory .statute suggests that the Postal Service may exercise discretion in complying with the duty to warn, that discretion is not the type protected by the discretionary function exception; it finds no basis in the larger set of statutory policies to be achieved by the Postal Service. To the limited extent a failure to warn is an “economic” consideration, that characterization is of little effect. In this context, the economic cost of warning bears too attenuated a connection
Numerous cases have suggested that the duty to warn is discretionary. At this juncture, a brief discussion of the facts and circumstances separating those several cases from this one is appropriate. See, e.g., McMellon,
Minns is not an aberration. Similar government decisions routinely are found to be discretionary. See, e.g., Maas v. United States,
Other cases, outside the national security arena, also illustrate that.a failure to warn usually is discretionary only where it bears some relationship to the agency’s overall purpose. See generally, e.g., S.R.P. ex rel Abunabba v. United States,
By contrast, in Cope v. Scott, the Court of Appeals for the District of Columbia Circuit held that the National Park Service could be liable for inadequate warning when it failed to post sufficiently numerous and specific signs warning of slippery road conditions along a rural road in the District of Columbia. Although the road, Beach Drive, officially was located in a national park, it was used primarily for commuter travel. In holding that the duty to warn was non-discretionary, the court observed that frequently the National Park Service’s failure to warn properly would be characterized as discretionary because such decisions required “difficult policy judgments balancing the preservation of the environment against the blight of excess signs.” Cope,
This case is more in line with Cope' than Minns or S.R.P. In particular, the Postal Service’s failure to warn, while not at odds with its statutory mission, does not further its goals. The decision to warn of potential hazards at the premises in issue did not further the Postal Service’s goals of efficient distribution of letters and other mail to the masses. Rather, it was a routine administrative matter divorced from public policy considerations. To allow the government to characterize the mundane act of warning as “discretionary” would run roughshod over the need for a “limiting principle” guiding application of the discretionary function exception. See Rich,
In any event, the Postal Service’s decision to provide no warning also was not discretionary under the second group of cases, those holding warning to be discretionary in light of an immediate hazard. Two cases from the Fourth Circuit address this matter directly. First, in Smith v. Washington Metro, the court found that the Washington Metro Authority was under no obligation to warn passengers that several of its escalators were inoperable. In that case, the plaintiffs’ son died after suffering a heart attack, which occurred after he walked up an escalator that had been converted into a “stationary walker,” or, in other words, stopped. Smith,
Similarly, in Williams the court held that, notwithstanding its earlier conclusion that the government’s discretionary use of an independent contractor insulated its decision not to warn, the United States’s failure to warn still was discretionary under the facts of that case.
Taken together, Smith and Williams stand for the proposition in response to an immediate hazard the United States may exercise its discretion in warning of the hazard, or not warning of it. See also Rosebush v. United States,
In sum, the United States is not entitled to discretionary immunity on all possible grounds supporting plaintiffs claim. The government’s decision to retain a contractor on a limited basis does not afford the United States carte blanche to ignore the duties imposed on landowners by common law. In addition, the government’s failure to inspect the property and warn of potential hazards also is not discretionary in light of the United States Postal Service’s statutory policies. Nevertheless, application of the discretionary function exception is multifaceted and a change in circumstances may require a different perspective. In particular, nothing in this court’s holding should be read as precluding the government from making a motion to dismiss this case for lack of subject matter jurisdiction at trial on the basis that the hazard in question was “open and obvious.” See Smith,
CONCLUSION
Based on the foregoing, the United States’s motion to dismiss for lack of subject matter jurisdiction, made pursuant to 28 U.S.C. § 2680(a) and Federal Rule of Civil Procedure 12(b)(1), is GRANTED in PART and DENIED in PART. Plaintiff may pursue her claim inasmuch as she alleges a negligent failure to inspect the premises and warn of potential dangers. The parties are DIRECTED to confer and file with the court within 21 days of this order a proposed case schedule for proceeding to trial.
SO ORDERED.
Notes
. The Lease Agreement is attached to and incorporated by reference in the complaint. Thus, the court may consider its contents without converting the instant motion into one for summary judgment. Philips v. Pitt Cnty. Mem'l Hosp.,