1999) (collecting cases). “Not all actions or omissions which result in injuries/damages will give rise
to liability under art. 1802,” however. /d. Instead, Souchet would prevail only if she could
demonstrate that the Government failed to exercise due diligence to avoid foreseeable risks. /d.
It is clear that the duty of care imposed upon the Government is to anticipate reasonably probable
injuries to probable victims. /d. at 322. “The foreseeability contemplated by the statute does not
include every conceivable consequence of an act or omission since to do so would make the
defendant an absolute insurer.” /d.

Souchet made no specific reference to Puerto Rican tort law, but as the court understands
her claim, Souchet contends that the Park Service was negligent in not warning her that Tunnel
Number 10 could be slippery and in failing to take all necessary steps to prevent her from falling.
As discussed above, the Government presented evidence that there was a large sign at the
entrance of the Fort clearly visible to all visitors, and that brochures were available that included
a warning that the Fort was slippery. Souchet and her son testified that they did not see the sign,
did not obtain a brochure, and were never advised concerning safety by a ranger or park official.
The parties dispute whether warning cones were utilized that day. The court concludes,
regardless, that the warnings were adequate. Souchet herself testified that it was raining the entire
time she visited, that she was aware of the need for caution, and that she leaned on her son and
rested her hand on the wall of the tunnel for support when she fell in the tunnel. The court finds
that Souchet had actual knowledge of the conditions and finds no basis to conclude that she would
have taken other precautions had she been warned of the dangers.

Apart from the failure to warn, Souchet argues more vigorously that the Park Service did
not take all measures necessary to assure that she would not be injured. As stated in irvine, the
Park Service is not an “absolute insurer” for all visitors. 194 F.3d at 322. Souchet specifically
argued that additional measures like handrails, rubber mats, and better lighting would have
prevented her fall. Although Souchet testified that the tunnel was dark, her son testified that the

13


has been receiving Social Security disability benefits since 1994 and that she was unable to do her
own housework without assistance even before the trip to Puerto Rico. (Cross-Examination of
Souchet.)

Fort San Cristébal

The San Juan Park is maintained by the United States National Park Service (“Park
Service’) and includes three separate forts (“San Juan Forts”). (Testimony of Hartwig.) Fort San
Cristobal, one of the San Juan Forts, is one of 18 World Cultural Heritage Sites located in the
United States.4 The San Juan Forts include some structures that date as far back as 1539. (/d.)
Construction of Fort San Cristdbol officially commenced in 1625. (/d.) The Fort was completed
in 1789 to protect the interests of the Spanish colonial empire in the Caribbean. (id.) Park
employees perform constant maintenance on the San Juan Forts, and, despite their age, they
remain in excellent condition. (/d.)

The Park Service has issued general guidelines for park employees to follow regarding
safety of park visitors and preservation of the park and the monument. (/d.) Paul Hartwig, then
Superintendent of the San Juan Park, explained that the guidelines require preservation of the
resources in perpetuity for future generations. (/d.) The Park Service does not generally make
day-to-day operating decisions in the specific parks, nor does the Park Service have specific safety
policies for each park to follow. (/d.) Instead, employees at each park make safety decisions,
balancing safety concerns against the goal of preservation of historic park resources. (Id.) Hartwig
testified that if a proposed safety measure will destroy the integrity of the monument, the
preservation of the monument must prevail. (/d.)

The San Juan Forts do contain some safety equipment. Specifically, park employees have

installed handrails in two tunnels where rainfall makes passage particularly slippery and hazardous.

See http://whc.unesco.org/heritage.htm

4



fegarding cost, preservation, and safety. /d. at 1180-81.°

Souchet focuses on the absence of any warning cones at the entrance to Tunnel Number
10 on July 27, 1995, and argues that placement of such cones was mandatory, not discretionary.
The court notes, first, that there is some dispute about whether cones were placed at Tunnel
Number 10 on the day Ms. Souchet was injured. Souchet and her son did not see any such cones;
Bocanegra’s incident report states that warning cones were posted. For purposes of this decision,
the court will assume there were no warning cones posted on July 27, 1995. The United States
argues that whether and when warning cones were posted was a matter within the Park officials’
discretion. Souchet herself admits there was no written policy concerning cones; she relies,
instead, only on the testimony of certain witnesses that use of cones when it rains is typical or
customary. Notably, no witness testified that cones were mandated.” To the contrary, Paul
Hartwig, then-superintendent of San Juan Park, testified that there was no written policy concerning
the use of cones, and that the individual ranger on site had discretion to determine whether to use
them. (Testimony of Hartwig.)

Even if Park officials had discretion over the placement of cones, Souchet argues, the Park

6 Other courts, as well, have rejected the notion that National Park Service policy

guidelines are so specific as to eliminate genuine discretion on the part of park officials. See, e.g.,
Blackburn v. United States, 100 F.3d 1426, 1434 (9th Cir. 1996); Shansky, 164 F.3d at 693-95.
Although Plaintiff makes essentially the same argument here, she has not specifically identified any
specific statute, regulation, or guideline that limits the discretion claimed by San Juan Park officials.

7 Facilities Manager Angel Diaz testified that he was unaware of no instance in the
previous seven years when it was raining and the cones were not used. (Diaz Dep., at 10.) When
asked whether “every time it rains cones go out immediately,” Diaz responded, “Right.” (/d.)
Bocanegra testified that the person on duty was in charge of placing cones and that it was the
custom to put cones out each time it rained. (Bocanegra Dep., at 6, 16.) In Shansky, the plaintiff
pointed to other steps NPS took to make the Trading Post safe and argued that these safety
decisions obliged the Park Service to implement similar safety measures at the location of the
injury. 164 F.3d at 688. The court rejected this argument, noting that the Guidelines gave park
service officials discretion to make precisely these kinds of judgments. /d. Like the plaintiff in
Shansky, Souchet presents no evidence of a Park Service policy mandating warning cones; rather,
the witnesses’ testimony merely describes the typical practice.

9


I. Discretionary Function Exception

The discretionary function exception provides that the Government is not liable for

an act or omission of an employee of the Government . . . 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) (emphasis added). Whether the discretionary function bars this suit turns on
two factors. Grammatico, 109 F.3d at 1200. First, the act for which liability is sought must be
discretionary; that is, the challenged act must involve “an element of judgment or choice.” /d.,
quoting Gaubert, 499 U.S. at 322. Second, the action must be the kind of discretionary function
the exception “was designed to shield.” /d., quoting Gaubert, 499 U.S. at 322. The discretionary
function exception only covers “governmental actions and decisions based on considerations of
public policy.” /d., quoting Gaubert, 499 U.S. at 323.

in Gaubert, plaintiff, the chairman of the board and largest shareholder in an insolvent
federal savings and loan, ("S&L") alleged that the Federal Home Loan Bank Board, and the Federal
Home Loan Bank Dallas were negligent in supervising the directors and officers of the S&L. 499
U.S. at 318-19. The Court held that the plaintiff could not prevail under the FTCA because federal
regulators exercised discretion in supervising the FSLA’s operations, in furtherance of public policy
goals. /d. at 325. Similarly, in Grammatico, the plaintiff filed a negligence action under the FTCA
for injuries from a machine his employer purchased at a Department of Defense surplus property
auction. 109 F.3d at 1200. The Seventh Circuit concluded that the Department was shielded from
liability because the Department had substantial discretion concerning the disposition of its surplus
property and its decision to do so by public auction on an “as is” basis fell within that discretion.
Id. at 1202-03,

The court considers here whether the acts Plaintiff Souchet challenges were discretionary

and whether the Park Service’s exercise of that discretion was based on public policy concerns.



(id.) Hartwig determined that a handrail was not necessary in Tunnel Number 10, however,
because rainwater rarely seeps into that tunnel. (/d.) Furthermore, according to Hartwig and San
Juan Park Management Assistant Yoran, the only reported accident in Tunnel Number 10 is the
one that resulted in this action. (Testimony of Hartwig; Testimony of Yoran.)® Yoran noted that
Park Service staff do place yellow or orange safety cones at the monument on rainy days, a
measure considered less intrusive than permanent handrail installations. Placement of cones on
arainy day is not mandatory, however; instead, the park ranger on duty makes a decision whether
cones are necessary for safety based on each day’s conditions. (Testimony of Yoran.)
DISCUSSION

On March 28, 2001, Souchet brought this lawsuit under the FTCA, seeking damages for
the injuries she suffered at Fort San Cristobo!. On its face, the FTCA is a “broad waiver" of the
United States’ sovereign immunity, Grammatico v. United States, 109 F.3d 1198, 1200 (7th Cir.
1997), but there are several important exceptions to the government's susceptibility to suit. 28
U.S.C. § 2680; United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992); United States v.
Gaubert, 499 U.S. 315, 322 (1991). The Government asserts that it is protected here by one such
exception-the discretionary function exception. 28 U.S.C. § 2680(a); Grammatico, 109 F.3d at
1200. Alternatively, the Government observes that the United States, including the Park Service,
is liable under the FTCA only to the extent a private property owner would be liable under the
substantive law of the state where the accident occurred. 28 U.S.C. § 1346(b)(1). Here, the
Government argues, the evidence does not support a finding of liability under Puerto Rico law. The
court first addresses the discretionary function exception, then briefly addresses Souchet’s claim

under applicable Puerto Rico law.

s Bocanegra testified that he had been involved in an incident in Tunnel Number 10

in which a woman had fallen when it was not raining and had broken her ankle. (Bocanegra Dep.,
at 21.) Hartwig and Yoran were apparently not aware of this incident.

5


against the goals of historic preservation and authenticity. /¢. Such concerns, the court concluded,
fell easily within the rubric of public policy. /d. at 695.

Elder, another case involving injuries from a fall in a national park, is similar. In Elder, a 12-
year-old boy died while attempting to cross a small stream at Zion National Park when he left a trail,
slipped on slick algae growing on a streambed, and fell over a ledge. 312 F.3d at 1174-75. Signs
warning of danger and identifying the path were posted, but no sign specifically warned visitors
about the danger of algae in the stream, nor were there any barriers or guardrails to prevent visitors
from leaving the trail, despite the fact that three previous deaths had occurred in the same area of
the park. /d. The court noted that after each previous fatality, an official inquiry had been
conducted, safety measures were evaluated, and additional measures were considered. /d. at
1175. The court concluded that the Park officials’ safety determinations fell within the discretionary
function exception to the FTCA. /d. at 1180. Plaintiffs argued there that an NPS publication (“NPS-
50") and two Zion publications dictated a specific course of action with respect to safety concerns,
thereby defeating the “discretionary function” exception, but the court disagreed. In the court’s
view, the NPS-50

certainly conveys the message that safety must be a priority, and it assists park

management by focusing on a number of elements that should be encompassed

by a safety program. But it does not dictate what actions park employees must take

in response to particular problems. Indeed, the following language in the NPS- 50's

Introduction makes clear that safety decisions must be made in the special context

of a national park and that park management retains substantial discretion: . . .

“[E]ach area must design its own safety and occupational health effort based on

local circumstances and operations.”

Elder, 312 F.3d at 1178, quoting NPS-50, Introduction, at iii (Jan. 1991). Having found that Park

officials exercise discretion as to placement of warnings and barriers at the accident site, the court

had little difficulty concluding that their discretion was exercised in light of policy considerations



a
a
+. Minute Order Roce (06/97)

GS - (pumied States District Court, Northern District of Ellinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Rebagi) R. Pallmeyer than Assigned Judge
DT
CASE NUMBER 01C 2115 DATE 2/23/2004
CASE Edith R. Sochet vs. United States of America
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented,]

DOCKET ENTRY:

(05) o Filed motion of [ use listing in “Motion” box above.]

Q) i Brief in support of motion due

GB) oO Answer brief to motion due. . Reply to answer brief due.

(4) Oo Ruling/Hearing on set for at

(5) Qa Status hearing[{held/continued to] [set for/re-set for] on set for at _

(6) oO Pretrial conference(held/continued to] [set for/re-set for] on set for at :

(7) aq Trial[set for/re-set for] on _ at

(8) Oo {Bench/Jury trial] [Hearing] held/continued to __ at

(©) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) CiLocal Rule 41.1 COFRCP41(a)\(1) OO FRCP41(a)(2).

(10) Ml [Otherdocketentry] Enter Memorandum Opinion and Order. Plaintiffs claim against the National
Park Service is barred by the discretionary function exception of the Federal Tort Claims Act. Judgment
is entered in favor of the United States.

a1) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Y | Notices maited by judge’s staff.

Notified counsel by telephone.

Docketing to mait notices.

ov | Mail AO 450 form.

Copy to judge/magistrate judge.

2yagi200a

date mailed novice

courtroom a
ETV deputy's Pa
initials

Date/time received in
central Clerk’s Office

mailing deputy initials



enjoyment of the same in such manner and by such means as will leave them
unimpaired for the enjoyment of future generations.

16 U.S.C. § 1.

The court understands this statute as a clear expression of a policy to preserve historical
structures like Fort San Cristobol. Therefore, the court presumes that the determinations regarding
specific safety measures were grounded in the public policy consideration of conservation. In
Elder, the Tenth Circuit held that safety determinations in the national parks are policy decisions.
312 F.3d at 1181 (observing that the propriety of “any safety measure must be weighed against
damage to natural resources and aesthetic values”). The Shansky court, likewise, noted that
“[aJesthetic considerations, including decisions to preserve the historical accuracy of national
landmarks, constitute legitimate policy concerns.” 164 F.3d at 693. This court agrees.

In fact, Souchet does not expressly challenge the existence of a public policy in favor of
preservation, but rather urges that the Park Service could have taken safety measures that would
not have interfered with that goal. For example, according to Souchet, NPS could have installed
a handrail on the wall of Tunnel Number 10, provided additional lighting, or furnished rubber mats.
In response, Paul Hartwig explained that before taking any safety measure, he would consider the
effect on the public policy goal of preservation. With respect to Tunnel Number 10, Hartwig
observed that it did not ordinarily become as slippery as other areas at the Fort; that because it was
covered, the ramp usually stayed dryer; and that he was unaware of any other serious incident
there. In Hartwig’s view, installation of handrails would have constituted a major alteration of the
authenticity of the Fort’s historic structure; such measures were taken in other parts of the Fort only

after significant consideration of the additional hazards there.’ In weighing the cost of safety

8 The fact that particular safety measures are used in other parts of the park does not

bolster Plaintiff's claim because “a commitment to safety in one area does not oblige an agency
to strike the balance in favor of safety in every other area.” Shansky, 164 F.3d at 695.

11



Service's general responsibility to ensure visitor safety was not a matter of discretion. Significantly,
however, she contends not that the Government ignored safety concerns, but that the measures
adopted were insufficient. In this court's view, Souchet’s argument that a number of safety
measures would have been desirable defeats her contention that Park Service officials had no
choice concerning safety issues. Testimony of the government's witnesses establishes that the
overall safety determination made by the superintendent at San Cristobal involved, in the Supreme
Court's words, “an element of judgment or choice.” Gaubert, 499 U.S. at 322. Hartwig's testimony
confirms this conclusion. Hartwig explained that as superintendent at San Cristobol, he ultimately
decided what safety measures to take, always balancing the safety of employees and visitors
against the central objective of preservation of the historic structure in its original state. Personnel
in the Park Service's regional office in Atlanta were available for consultation, but the on-site
superintendent made final decisions concerning safety issues. Angel Diaz, a facilities manager at
the Fort, noted that maintenance staff were required to obtain a permit from the superintendent
before installing any permanent safety measures, such as handrails, at the facility. (Diaz Dep., at
12-13.)

Even if she were to concede that Park officials’ safety decisions were discretionary, Souchet
might argue that they are nevertheless insufficient to bar her suit unless those decisions are based
on policy considerations. See Berkovitz, 486 U.S. at 537 (discretionary function exception “protects
only governmental actions and decisions based on considerations of public policy”). Such an
argument would have little traction here. As the Gaudert Court explained, when government policy
authorizes an official to exercise discretion, there is a presumption that the official's decisions are
grounded in policy. 499 U.S. at 324. In creating the Park Service, Congress provided:

The service thus established shall promote and regulate the use of the Federal

areas known as national parks, monuments, and reservations . . . as provided by

law, by such means and measures as conform to the fundamental purpose of the

said parks, monuments, and reservations, which purpose is to conserve the scenery

and the natural and historic objects and the wild life therein and to provide for the

10


The question of whether a challenged act is discretionary turns on the nature of the conduct, not
the status of the actor. Gaubert, 499 U.S. at 322 (citation omitted). An act is not discretionary if
a “federal statute, regulation, or policy specifically prescribes a course of action for an employee
to follow.” /d., citing Berkovitz v. United States, 486 U.S. 531, 536 (1988) (emphasis added). In
order for her claim to fall outside the “discretionary function” exception to the FTCA, Souchet has
the burden of demonstrating that the safety decisions she challenges involved no “element of
judgment or choice.” Elder v. United States, 312 F.3d 1172, 1176-77 (10th Cir. 2002) (citation
omitted).

The court considers, first, what conduct (act or omission) allegedly caused the harm.
Shansky v. United States, 164 F.3d 688, 690-91 (1st Cir. 1999). Souchet asserts that Park officials
knew the ramp was dangerous and did not take specific safety measures to prevent this danger.
Specifically, she asserts that Park staff (1) failed to warn her that the ramp was slippery, (2) failed
to place warning cones at the entrance to the ramp, and (3) failed to install safety devices such as
a handrail or rubber mat at the ramp entrance. In Shansky, a case on all fours with this one, the
plaintiff made similar arguments when she tripped and fell on an antique wooden threshold at the
Hubbell Trading Post, a National Historic Site in Ganado, Arizona. Id. at 690, The Post had been
constructed in the 1800s and was rehabilitated in 1970 by the National Park Service (“NPS”) with
a view toward preserving authenticity of the original structure. /d. Plaintiff argued that NPS was
negligent in failing both to install a handrail and to post adequate warning signs in the location
where she fell. /d. The First Circuit affirmed summary judgment in favor of the Government,
reasoning that NPS had exercised discretion in balancing human safety against historic
authenticity. /d. at691. The plaintiff argued that Park officials’ discretion was cabined by federal
regulations prescribed the proper course of action for Park officials; she referred specifically to the
NPS's operating manual which set forth general guidelines concerning safety. /d. In the court's

view, however, that document demonstrated that NPS had discretion to balance safety concerns

7


Souchet testified that it was dark and slippery in the tunnel. As she and her son walked down the
ramp, Souchet steadied herself py placing her left arm on the wall of the tunnel, and Benitez held
her right arm. (Testimony of Souchet.) Approximately halfway down the ramp, Souchet's right leg
slipped out from beneath her and she fell. Attempting to brace herself, Souchet broke her left wrist
and elbow and experienced pain in her back and neck. (/d.)

Souchet and Benitez made their way out of the ramp, where Pelegri and his fiancé met
them and assisted Souchet to the ranger’s office. (/d.) Bocanegra, the ranger on duty, gave
Souchet an ice pack, and at Souchet’s request, called an ambulance. (/d.) After some delay,
Souchet was transported by ambulance to the hospital, where her arm and wrist were x-rayed and
put into a cast. (/d.)

Bocanegra completed an incident report on the day of Souchet’s fall. (Defendant’s Trial
Exhibit 11.) In that report, Bocanegra noted that he administered first aid and recommended
professional medical assistance at the nearest hospital. (/d.) He encouraged Souchet to drive to
the closest hospital, but she preferred to wait for an ambulance, despite being warned that the
municipal ambulance was unavailable and that a private ambulance would be more costly. (/d.)
The report notes that while they waited for the ambulance, Souchet told her son she had been
concerned that her tennis shoes were slippery. (/d.) The report states, further, that because it had
been raining the entire day, yellow cones had been placed on the ramps to warn visitors to exercise
caution. (/d.)

Souchet remained in Puerto Rico until November, by which time her cast had been
removed. (Testimony of Souchet.) On her return to Chicago, Souchet sought medical treatment
at Northwestern Memorial Hospital and underwent physical therapy. (/d.) She has been treated
by two doctors in Chicago, one of whom is an orthopedic surgeon. (/d.) Some pain remains today
in Souchet’s {eft wrist and elbow when she does housework and lifts heavy items. (fd.) Although
she seeks recovery for pain and physical limitations in this lawsuit, Souchet acknowledges that she

3


tunnel was medium- to well-lit. There was no evidence that rubber mats would have prevented her
fall; to the contrary, Hartwig testified that one of the reasons mats were not used is that they can
become more slippery when wet. Souchet believes that a more stable support, like a handrail,
could have prevented her fall, but the court notes that Souchet was already using the wall and her
son for support, and though a handrail possibly could have been more stable, there was no
evidence that it would have prevented her fall. Furthermore, the Government presented consistent
testimony of Fort San Cristobol employees that Tunnel Number 10 was not regarded as slippery
or unsafe. Puerto Rico’s negligence law does not place the responsibility for all injuries on the
alleged tortfeasor, 194 F.3d at 321, and the court concludes Souchet has not met her burden of
proof on this issue.

The court finds, therefore, that even if the discretionary function exception did not apply,
the Government would not be liable under Puerto Rico negligence law.

CONCLUSION

Plaintiffs claim against the National Park Service is barred by the discretionary function

exception of the Federal Tort Claims Act. Judgment is entered in favor of the United States.

ENTER:

Dated: February 23, 2004

RESECCAR R. PALL ieee
United States Distri ge

14


tread. (id.)

Souchet and Benitez entered the Fort, while Pelegri and his fiancé went to a nearby store
to purchase umbrellas. (/d.) According to Madeline Yoran, San Juan Park Management Assistant,
a large (3’ x 4’) sign stands at the entrance to the Fort, posting the hours of operation and warning
visitors of slippery ramps and surfaces. (Testimony of Madeline L. Yoran; Def. Trial Exhibit 1.)
Although literature and maps were available at the ranger contact station, located near the
entrance, (Testimony of Yoran), neither Souchet nor Benitez received any such items nor were any
staff posted at the entrance.? (Testimony of Souchet and Benitez.) After entering the Fort,
Souchet and Benitez walked up stairs to the second level and remained there approximately 25
minutes, enjoying the ocean view. (Testimony of Benitez; Testimony of Souchet.) While on the
second level, Souchet and Benitez had no contact with any Fort employees, nor did they see any
warning signs, safety cones, or barricades on the monument. (Testimony of Souchet; Testimony
of Benitez.) According to the park ranger on duty, David Bocanegra (“Bocanegra”), however, there
were cones out that day, as noted in an incident report Bocanegra prepared later that day.
(Bocanegra Dep., at 16-17°; Defendant’s Trial Exhibit 11.) After about 25 minutes on the second
level, it began to rain harder, so Souchet and Benitez decided to return to the first level and find
out whether Pelegri and his fiancé had located an umbrella. (Testimony of Souchet.)

Souchet and Benitez had climbed a flight of stairs on their way up to the second level, but
to return to the ground level they chose to walk down a ramp, within an enclosed tunnel, known to

monument employees as “Tunnel Number 10.” (Testimony of Benitez; Testimony of Paul Hartwig.)

2 The literature available at the ranger’s station consisted of a self-guided map of Fort
San Cristébo!, which included a safety message to use extreme caution on the ramps and stairs.
(Testimony of Yoran.)

3 Depositions of Dr. Richard Sidell, Dr. Mark Schoot, David Bocanegra (Ranger in
1995); Angel Diaz (Chief of Maintenance in 1995); and Karen Spoon (Budget Analyst and member
of Safety Committee in 1995) were submitted by the parties without objection. Therefore, these
depositions are included in the court’s review of the evidence.

2


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EDITH R. SOUCHET,

)
)
Plaintiff, )
)
v. ) No. 01 © 2115
)
UNITED STATES OF AMERICA, ) Judge Rebecca R. Pallmeyer
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Edith Souchet (“Souchet”) seeks damages from the United States for her personal
injuries, including a broken wrist and elbow, that she suffered while visiting Fort San Cristdbol
monument, part of the National Park Service’s San Juan National Historic Site (“San Juan Park’),
in San Juan, Puerto Rico. Souchet has filed this action pursuant to the Federal Tort Claims Act,
28 U.S.C. §§ 1346(b), 2671-2680. The Government asserts that Souchet’s claim is barred by the
discretionary function exception to the FTCA. Alternatively, the Government asserts that Souchet's
claim fails under Puerto Rico's common law of negligence. For the reasons set forth below, the

court enters judgment in favor of the United States. Fee 2 5 2004

FACTUAL BACKGROUND'

On July 27, 1995, Souchet, a Chicago resident, visited the Fort San Cristobol monument
in San Juan, Puerto Rico, with her two sons, Julian Benitez (“Benitez”) and Jose “Joe” Pelegri
(‘Pelegri”), and Pelegri's fiancé. (Testimony of Souchet.) When the group arrived at the
monument after a four-hour drive from their accommodations in Puerto Rico, the weather was

cloudy and rainy. (/d.) Souchet was wearing pants, a shirt, and leather gym shoes with a rubber

1 The facts are based on testimony presented at a bench trial and deposition
transcripts submitted by the parties without objection.


measures against the additional benefit, Hartwig noted that he considered rubber mats to be
potentially more hazardous, and difficult for the staff to utilize. Souchet challenges the wisdom of
Hartwig’s decisions, but the law is clear that neither her assessment of the propriety of safety
measures, nor that of this court, is a relevant consideration in determining the availability of the
discretionary function exception to liability under FTCA. See United States v. S.A. Empresa de
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 815 (1984) (recognizing Congressional
intent underlying the discretionary function exception to FTCA: to prevent judicial “second-
guessing” of administrative decisions grounded in policy).

The court concludes that park officials’ decisions regarding safety features at Fort San
Cristobol were clearly based on public policy considerations. For these reasons, Souchet’s action
is barred by the discretionary function exception to government liability under FTCA.

i Negligence

The Government argues that even if the discretionary function exception does not apply,
the court should enter judgment in favor of the United States because Souchet is unable to
demonstrate negligence under Puerto Rico law. Although the discretionary function exception is
dispositive here, the court will address Souchet's negligence claim briefly. Under FTCA, the court
must apply the substantive law of the place of the incident, in this case, Puerto Rico. 28 U.S.C. §
1346(b)(1); Kaniff v. United States, 351 F.3d 780, 790 (7th Cir. 2003). Had it occurred on private
property in Puerto Rico, Souchet's injury would arguably be covered by Article 1802 of the Puerto
Rico Civil Code, which provides: “A person who by an act or omission causes damage to another
through fault or negligence shall be obligated to repair the damage so done.” 31L.P.R.A. § 5141
(2002). To establish her claim, Souchet must prove that: (1) there was a negligent act or omission,
(2) she suffered damages, and (3) there was a causal relation between her damages and the

negligent act or omission. Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313, 321 (1st Cir.

12