Filed: Apr. 24, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1966 GEORGE LUTFI, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant – Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony J. Trenga, District Judge. (1:09-cv-01114-AJT-IDD) Argued: March 21, 2013 Decided: April 24, 2013 Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. ARGUED
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1966 GEORGE LUTFI, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant – Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony J. Trenga, District Judge. (1:09-cv-01114-AJT-IDD) Argued: March 21, 2013 Decided: April 24, 2013 Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. ARGUED:..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1966
GEORGE LUTFI,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:09-cv-01114-AJT-IDD)
Argued: March 21, 2013 Decided: April 24, 2013
Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Steven Michael Oster, Washington, D.C., for Appellant.
Joseph Edward Krill, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this Federal Tort Claims Act (“FTCA”) case,
Appellant George Lutfi (“Appellant Lutfi”) appeals the district
court’s dismissal of his claim for lack of subject matter
jurisdiction.
The underlying dispute arose after Appellant Lutfi
injured his arm while visiting the United States Air Force
Memorial (“Memorial”) in Arlington, Virginia. On appeal,
Appellant Lutfi alleges: (1) the district court erroneously
granted the United States’ motion to dismiss for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and,
instead, the district court should have treated the motion as
one for summary judgment under Fed. R. Civ. P. 56; (2) the
district court erroneously applied Virginia’s recreational land
use statute (“RLUS”), which required Appellant Lutfi to
establish gross negligence; and (3) in the alternative, the
district court erred in concluding that there were no genuine
issues of material fact on the issue of gross negligence.
We reject these arguments and hold instead: (1) the
district court’s reliance on Fed. R. Civ. P. 12(b)(1), though
erroneous, was harmless error inasmuch as Appellant Lutfi’s
substantial rights weren’t affected; (2) the district court did
not err in applying the RLUS given that Appellant Lutfi was
sightseeing while he was visiting the Memorial; and (3) the
2
district court did not err in concluding there were no genuine
issues of material fact on the issue of gross negligence.
Accordingly, we affirm the judgment of the district
court.
I.
A.
On Friday, November 17, 2006, Appellant Lutfi and
several of his relatives arrived at the Memorial at
approximately 8:00 p.m. According to Appellant Lutfi, the
purpose of the visit to the Memorial was to “highlight American
values” for the benefit of a young relative who was visiting
from out of town. See J.A. 1034-35. 1 Neither Appellant Lutfi
nor his relatives paid a fee to visit the Memorial or park in
the Memorial’s parking lot.
The group came in two separate cars and, upon arrival,
parked in a section of the parking lot reserved for Memorial
visitors. According to Appellant Lutfi, several of the lights
in the parking lot were not functioning that evening.
Specifically, Appellant Lutfi alleges that the only functioning
lights were on the lower end of the parking lot, behind their
vehicles and in the opposite direction of the Memorial. He also
1
Citations to the J.A. refer to the Joint Appendix filed by
the parties in this appeal.
3
alleges there were several light poles in the area surrounding
their vehicles, but the lights on those poles were not
functioning.
Appellant Lutfi and his relatives visited the Memorial
for approximately twenty minutes before returning to their
vehicles. Appellant Lutfi alleges that, while walking through
the parking lot on his way back to the vehicles, he stepped on a
wire hoop that was hidden beneath a patch of leaves on the
ground. According to Appellant Lutfi, the hoop encircled his
ankles, causing him to fall to the ground and fracture his arm.
B.
As a result of this injury, Appellant Lutfi brought
multiple actions in state and federal court against various
defendants. Specifically, on November 17, 2008, Appellant
Lutfi, proceeding pro se, filed an action in Arlington County
Circuit Court against three private federal contractors.
However, on July 27, 2010, Appellant Lutfi filed a motion
seeking voluntary dismissal of that lawsuit, which the state
court granted.
On October 2, 2009, Appellant Lutfi, again proceeding
pro se, brought the present action against the United States in
the United States District Court for the Eastern District of
Virginia. In his initial compliant, Appellant Lutfi generally
alleged that the United States negligently failed to warn or
4
protect visitors against the dangerous conditions that were
allegedly present in the parking lot, namely the presence of
construction debris and the existence of inadequate lighting.
On July 26, 2010, Appellant Lutfi, this time acting through
counsel, filed an amended complaint (“Amended Complaint”),
reincorporating the original allegations against the United
States and adding (1) claims against several private
contractors, including those named in the original state court
action, and (2) a claim that the United States negligently
failed to supervise those contractors. 2
On July 26, 2010, the district court issued its
initial scheduling order, which provided that discovery would
conclude on December 10, 2010. However, the district court
later enlarged this period by two months. Thus, Appellant
Lutfi’s discovery period expired on February 11, 2011, giving
him a total of seven months in which to complete discovery.
On October 8, 2010, the United States filed its first
motion to dismiss. In that motion, the United States argued (1)
Appellant Lutfi had failed to establish that the United States
was liable under Virginia law and, therefore, the district court
2
The Amended Complaint’s claims against the independent
contractors were all dismissed in separate orders and are not
relevant here.
5
lacked subject matter jurisdiction under the FTCA; 3 (2) the
FTCA’s independent contractor exception insulated the United
States from liability because the United States had delegated
the construction and maintenance of the Memorial’s parking lot
to an independent contractor; and (3) the FTCA’s discretionary
function exception similarly insulated the United States from
liability because the decision to hire an independent contractor
was a discretionary function. The district court denied this
motion on November 19, 2010, in order to give Appellant Lutfi a
“full and fair opportunity to conduct discovery.” J.A. 1036-37,
n.4. In a separate order also entered that day, the district
court enlarged the discovery period by two months. See R. 62. 4
On February 14, 2011, following the conclusion of the
discovery period, the United States filed a motion to dismiss
pursuant to Fed. R. Civ. P. 41(b) 5 alleging that Appellant Lutfi
had engaged in “litigative misconduct” during discovery
3
As discussed in more detail, infra, the FTCA vests
district courts with jurisdiction to hear tort claims asserted
against the United States only to the extent that “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)(1).
4
Citations to “R.” refer to district court ECF docket entry
numbers not included in the Joint Appendix.
5
Fed. R. Civ. P. 41(b) provides, “[i]f the plaintiff fails
to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against
it.”
6
sufficient to warrant involuntary dismissal. R. 188. The
magistrate judge heard argument on this motion and, in the
ensuing report and recommendation, recommended dismissal. See
R. 286, at 21 (“Given Plaintiff’s past behavior in response to
the Court’s orders and instructions, this Court finds that
dismissal of this case with prejudice is the only effective
sanction.”)
While the Rule 41 motion was pending before the
district court, the United States filed a renewed motion to
dismiss for lack of subject matter jurisdiction or, in the
alternative, for summary judgment. The district court granted
the United States’ renewed motion to dismiss on April 22, 2011.
In so doing, the district court properly noted, under the FTCA,
federal courts only possess subject matter jurisdiction over
tort claims asserted against the United States to the extent
that the United States would have been liable as a private party
under the law of the state in which the tort occurred. See J.A.
1033-34 (citing Goldstar (Panama) S.A. v. United States, 967
F.2d 954, 969 (4th Cir. 1992); 28 U.S.C. § 1346(b)).
In determining whether the United States would have
been liable to Appellant Lutfi under Virginia law, the district
court first concluded that the RLUS applied to Appellant Lutfi’s
claims. Under the RLUS, a landowner who makes its property
freely available to the public for recreational purposes,
7
including “sightseeing,” has no liability except for “gross
negligence or willful or malicious failure to guard or warn
against a dangerous condition, use, or structure, or activity.”
Va. Code 29.1-509(B) & (D). Therefore, the district court found
the RLUS applicable because (a) the United States did not
receive a fee in return for Appellant Lutfi’s use of the
Memorial and (b) Appellant Lutfi was sightseeing when his injury
occurred. Accordingly, the district court concluded Appellant
Lutfi must show that the United States was grossly negligent
under Virginia law in order to prevail.
The district court then concluded Appellant Lutfi had
failed to make such a showing. In so holding, the district
court noted, “[u]nder Virginia law, ‘gross negligence is that
degree of negligence which shows an utter disregard of prudence
amounting to complete neglect of the safety of another’ and
requires ‘a heedless and palpable violation of legal duty
respecting the rights of others.’” J.A. 1035 (quoting Frazier
v. City of Norfolk, 234 Va. 388, 393 (1987)). Applying this
definition to the facts at hand, the district court concluded
that, even resolving all disputed facts and drawing all
reasonable inferences in Appellant Lutfi’s favor, a reasonable
jury could not conclude that the United States was grossly
negligent under Virginia law. See J.A. 1035-36. Accordingly,
the district court granted the United States’ motion to dismiss.
8
II.
“We review de novo a district court’s dismissal for
lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1).” Taylor v. Kellogg Brown & Root Servs.,
Inc., 658 F.3d 402, 408 (4th Cir. 2011).
Similarly, we review the district court's grant of
summary judgment de novo. Ray Commc’ns, Inc. v. Clear Channel
Commc’ns, Inc., 673 F.3d 294, 299 (4th Cir. 2012). Summary
judgment is appropriate if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). When evaluating a
motion for summary judgment, a court is required to view all
facts and reasonable inferences in a light most favorable to the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,
248 (1986). The moving party carries the initial burden to
establish the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). If the
moving party meets this burden, the non-moving party must then
go beyond the pleadings and “set forth specific facts showing
that there is a genuine issue for trial.” Id. at 324.
Finally, when reviewing the judgment of a district
court, we will “disregard all errors and defects that do not
affect any party’s substantial rights.” Fed. R. Civ. P. 61; see
also 28 U.S.C. § 2111.
9
III.
Pursuant to the doctrine of sovereign immunity, the
United States is immune from private civil actions absent an
express waiver. See Kerns v. United States, 585 F.3d 187, 193-
94 (4th Cir. 2009) (citing United States v. Sherwood,
312 U.S.
584, 586 (1941)) (“Absent a statutory waiver, sovereign immunity
shields the United States from a civil tort suit.”) Through the
FTCA, Congress expressly waived sovereign immunity for certain
tort claims, vesting federal district courts with exclusive
jurisdiction over all civil actions brought against the United
States “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)(1). Because Appellant Lutfi’s alleged
injury occurred in Arlington, Virginia, Virginia law governs the
merits of this case. Accordingly, the district court possessed
subject matter jurisdiction over this matter to the extent that
the United States, if a private person, would have been liable
to Appellant Lutfi under Virginia law.
A.
Appellant Lutfi first argues that the district court
erred in dismissing his claim for lack of subject matter
jurisdiction pursuant to rule 12(b)(1) of the Federal Rules of
Civil Procedure. He bases this argument on our decision in
10
Kerns, wherein we reversed a district court’s dismissal of a
case for lack of subject matter jurisdiction and held that,
instead, the district court should have “assume[d] jurisdiction
and assess[ed] the merits of the claim” in order to give the
plaintiff the benefit of the procedural protections of a motion
for summary judgment. Kerns, 585 F.3d at 195.
Ordinarily, a defendant may challenge the existence of
subject matter jurisdiction in one of two ways: (1) by
contending that a complaint fails to allege facts upon which
subject matter jurisdiction can be based (a “facial challenge”)
or (2) by contending that the jurisdictional allegations made in
the complaint are not true (a “factual challenge”). See Kerns,
585 F.3d. at 192-93 (citing Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982)). In a facial challenge, the plaintiff is
afforded the same procedural protections as he would be accorded
when faced with a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Namely, all alleged facts are taken as true and the
motion will be denied if the complaint alleges facts that, if
proven, would be sufficient to sustain jurisdiction. See id.
In a factual challenge, a trial court “may then go beyond the
allegations of the complaint and in an evidentiary hearing
determine if there are facts to support the jurisdictional
allegations.” Id.
11
This legal framework is normally effective for the
resolution of subject matter jurisdiction disputes. However, in
cases where the jurisdictional facts are “inextricably
intertwined” with those central to the merits of the dispute,
this framework falls short. Kerns, 585 F.3d at 193. In such
cases, “a trial court should then afford the plaintiff the
procedural safeguards — like discovery — that would apply were
the plaintiff facing a direct attack on the merits.” Id.
Accordingly, “[a]s the Supreme Court has held with respect to
such situations, a trial court should dismiss under Rule
12(b)(1) only when the jurisdictional allegations are clearly
immaterial, made solely for the purpose of obtaining
jurisdiction or where such a claim is wholly unsubstantial and
frivolous.” Id. (internal quotation marks and alterations
omitted).
Thus, Appellant Lutfi contends that, because the
jurisdictional and merits facts are inextricably intertwined in
this case, the district court erred in dismissing for lack of
subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
Instead, Appellant Lutfi argues that the district court should
have assumed jurisdiction and resolved this case on the merits.
We agree. There is no dispute that the jurisdictional and
merits issues are “inextricably intertwined” in this case, as
the question of jurisdiction under the FTCA turns entirely on
12
the question of whether the United States could be liable to
Appellant Lutfi under Virginia law. Thus, under Kerns, the
district court should have assumed jurisdiction and decided this
case on a motion for summary judgment. Accordingly, the
district court’s dismissal of Appellant Lutfi’s claims for lack
of subject matter jurisdiction was improper.
However, as the United States correctly argues, this
error was harmless. 6 Under the harmless error doctrine, we “must
disregard all errors and defects that do not affect any party’s
substantial rights.” Fed. R. Civ. P. 61; see also 28 U.S.C.
§ 2111 (“On the hearing of any appeal . . . the court shall give
judgment . . . without regard to errors or defects which do not
affect the substantial rights of the parties.”) An error is
harmless if we can say “with fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error . . . .” Kotteakos v. United States, 328 U.S. 750, 765
(1946); see also Taylor v. Virginia Union Univ.,
193 F.3d 219
(4th Cir. 1999) (en banc) (formally adopting the Kotteakos
harmless error standard for civil cases).
6
The United States also argues Appellant Lutfi waived this
procedural argument by failing to raise it below. However,
because we conclude the district court’s error was harmless, we
need not determine whether this argument was, in fact, waived.
13
Here, we can say with fair assurance that, had the
district court assumed jurisdiction and analyzed the United
States’ motion pursuant to Rule 56 of the Federal Rules of Civil
Procedure, the court would have reached the same result.
Notably, Appellant Lutfi’s argument that the district
court erroneously dismissed this case pursuant to Rule 12(b)(1)
is based entirely on our decision in Kerns. However, in Kerns,
the court’s primary concern was the fact that the plaintiff had
not been allowed to conduct discovery and thus, was not
afforded “the procedural safeguards . . . that would apply were
the plaintiff facing a direct attack on the merits.” Kerns,
585 F.3d 193.
In contrast, here, Appellant Lutfi was given seven
months to conduct discovery. This includes the five months from
the original scheduling order and the additional two months
awarded thereafter. Moreover, Appellant Lutfi was, in fact,
accorded the procedural safeguards of the summary judgment
standard, as the district court resolved all disputed factual
matters and drew all reasonable inferences in his favor. See,
e.g., J.A. 1034-35 (“For purposes of this motion, the Court
accepts as true these characterizations of the purpose and
nature of plaintiff’s visit to the Memorial, but nevertheless
concludes that they do not take his visit outside the scope of
the Recreational Use Statute.”); J.A. 1035 (“Accepting that
14
testimony as true, there is nothing in the record that
establishes how long that condition may have existed before the
accident or that the United States was on notice of that
condition.”) (emphasis supplied). This conclusion is bolstered
by the additional facts that: (1) as noted above, the district
court initially denied the United States’ motion to dismiss for
lack of subject matter jurisdiction in order to afford Appellant
Lutfi an opportunity to conduct discovery; and (2) the district
court’s final dismissal arose in the context of a motion to
dismiss for lack of subject matter jurisdiction or, in the
alternative, for summary judgment.
Accordingly, we can say with fair assurance that the
district court’s erroneous reliance on Fed. R. Civ. P. 12(b)(1)
did not effect its ultimate conclusion that Appellant Lutfi
could not establish that the United States was liable to him
under Virginia law. Therefore, the district court’s error was
harmless.
B.
Appellant Lutfi next argues the district court erred
in applying the RLUS for two reasons. First, Appellant Lutfi
contends that the RLUS only applies to those entities for whom
the existence of the RLUS’s reduced standard of care was the
primary motivation for opening their land to the public and,
therefore, the RLUS does not apply to the United States as the
15
United States was otherwise motivated to build the Memorial.
Second, Appellant Lutfi contends that the RLUS does not apply
because he was not sightseeing during his visit to the Memorial.
We reject both arguments.
1.
First, Appellant Lutfi contends that the RLUS only
applies to those entities for whom the existence of the RLUS’s
reduced standard of care was the primary motivation for opening
their land to the public. According to Appellant Lutfi, the
United States does not fit this description because, he asserts,
it likely would have opened the Memorial to the public
regardless of whether it would enjoy the protection of the RLUS.
Thus, Appellant Lutfi concludes the RLUS does not apply here.
In support of this argument, Appellant Lutfi relies on
Piligian v. United States, 642 F. Supp. 193, 195 (D. Mass. 1986)
(“[T]he landowner whose liability the legislature sought to
limit is the one for whom the existence of the RLUS provides the
primary motivation in allowing the public on his land.”)
However, this reliance is inapposite.
First, Piligian is distinguishable. In Piligian, the
plaintiff was injured while sitting on a shopping concourse
outside the Pentagon. Just prior to the injury, the plaintiff
had taken a free tour of the Pentagon. As a result of the
injury, she filed suit against the United States under the FTCA.
16
The United States argued that the RLUS applied because the
plaintiff was sightseeing at the time of her injury. However,
the Piligian court rejected this argument, concluding instead
that the RLUS did not apply because the United States had, in
fact, received a fee in exchange for the use of its property.
The Piligian court based this conclusion on the fact
that the injury occurred on a shopping concourse located just
outside the Pentagon, as opposed to the Pentagon grounds. The
shops on this concourse paid royalties to the United States.
Accordingly, the Piligian court likened the concourse to a
shopping mall and, therefore, concluded that the RLUS did not
apply. See Piligian, 642 F. Supp. at 195 (“[T]he concourse area
is not unlike any suburban shopping mall, where in addition to
the shops, there are areas for relaxing, listening to music, and
viewing temporary exhibits, or what have you.”)
Here, Piligian is inapplicable because Appellant
Lutfi’s injury did not occur in a “commercial area” like the one
at issue in Pilgian. J.A. 1036. Moreover, even assuming
Piliian is analogous, we decline to hold that the existence of
the statute’s limitation of liability provision must be a
landowner’s “primary motivation” for opening its land to the
public in order for the statute to apply. There is simply
nothing in the statute that supports such a requirement.
Rather, the only two pre-requisites listed in the statute are
17
(1) the requirement that the landowner not receive a fee in
exchange for use of its property and (2) the requirement that
the property be used for a “recreational purpose.” Because both
of these pre-requisites are met in the present case, the RLUS
applies.
2.
Appellant Lutfi’s second argument against the
application of the RLUS is that he was not “sightseeing” at the
Memorial but, instead, he went to the Memorial to impart
American values on his visiting young relative, which he argues
is not “sightseeing.”
We first note that neither the statute nor Virginia
courts have defined the term “sightseeing” as it is used in the
RLUS. Thus, we must give the term its ordinary meaning.
Johnson v. Zimmer, 686 F.3d 224, 243 (4th Cir. 2012) (“[W]hen
terms used in a statute are undefined, we give them their
ordinary meaning[.]”); see also Hamilton v. Lanning,
130 S. Ct.
2464, 2471 (2010). In ascertaining a term’s ordinary meaning,
both this court and the Supreme Court have relied on the term’s
dictionary definition. See, e.g., United States v. Gonzales,
520 U.S. 1, 5 (1997); see also N. Carolina ex rel. Cooper v.
TVA,
515 F.3d 344, 351 (4th Cir. 2008). Accordingly, we join
the district court and adopt the relevant definitions from
Webster’s Third New International Dictionary. Specifically,
18
that dictionary defines “to sightsee” as “to go about seeing
sights of interest” and further defines a “sight” as “a thing
regarded as worth seeing.” J.A. 1035 (citing Webster’s Third
New International Dictionary at 2114-15).
We also agree with the district court’s conclusion
that Appellant Lutfi’s visit to the Memorial fits within this
definition. Simply put, Appellant Lutfi and his relatives were
going to “see” the Memorial, a “thing regarded as worth seeing.”
J.A. 1035. Notwithstanding his laudable objective, Appellant
Lutfi’s trip to the Memorial fits well within the parameters of
the term “sightseeing”: he went to the Memorial to see a sight
of interest. Thus, the RLUS still governs.
C.
Because we conclude the RLUS applies, Appellant Lutfi
must establish that the United States was grossly negligent in
order to prove his claim. In this regard, Appellant Lutfi
argues the district court erred in concluding the evidence was
insufficient to permit a reasonable jury to conclude that the
United States was grossly negligent. Again, we disagree.
Under Virginia law, gross negligence is defined as
“that degree of negligence which shows an utter disregard of
prudence amounting to complete neglect of the safety of another.
It is a heedless and palpable violation of legal duty respecting
the rights of others. Gross negligence amounts to the absence
19
of slight diligence, or the want of even scant care.” Frazier
v. City of Norfolk, 362 S.E.2d 688, 691 (Va. 1987) (internal
quotation marks and citations omitted). Though not dispositive,
“[d]eliberate conduct is important evidence on the question of
gross negligence.” Id. at 801.
Before turning to the facts in this case, we first
analyze Virginia’s leading cases applying this standard in the
context of the RLUS. First, in Frazier, a plaintiff was injured
when he fell from an orchestra pit at a concert hall in Norfolk,
Virginia. At the time of the injury, there was a gap between
the rear of the orchestra pit and the front of the stage. There
were no railings or other barriers to protect against this kind
of an incident, and the absence of those protective devices
amounted to a violation of city code. Moreover, two years
before the incident in question, a child had fallen from the
same orchestra pit even when protective barriers had been in
place.
Despite this evidence, the Supreme Court of Virginia
concluded the city’s actions constituted, at most, ordinary
negligence. Frazier, 362 S.E.2d at 691 (“Such acts of omission
do not rise to that degree of egregious conduct which can be
classified as a heedless, palpable violation of rights showing
an utter disregard of prudence.”); see also City of Lynchburg v.
Brown, 613 S.E.2d 407 (Va. 2005) (concluding that the failure to
20
correct an open and obvious hazard in a set of bleachers was not
gross negligence).
The Virginia Supreme Court reached the opposite
conclusion in Chapman v. City of Virginia Beach, 475 S.E.2d 798
(1996). In Chapman, a child died after becoming entrapped in a
swinging gate made of metal bars. The evidence in that case
demonstrated the gate had been broken for several months prior
to the incident. The evidence also showed that city employees
had been notified at least three times of this defect, but that
the city had made a deliberate decision not to correct it until
the peak tourist season had concluded. On this evidence, the
Supreme Court concluded, “reasonable persons could differ upon
whether the cumulative effect of these circumstances constitutes
a form of recklessness or a total disregard of all precautions,
an absence of diligence, or lack of even slight care[,]” and
reversed the trial court’s grant of summary judgment in favor of
the city. Chapman, 475 S.E.2d at 801.
Appellant Lutfi argues that this case bears more
resemblance to Chapman than Frazier and, accordingly, the
district court should have submitted the question of gross
negligence to a jury. In making this argument, Appellant Lutfi
cites the following facts: although the United States contracted
with several independent parties for the construction and
maintenance of the Memorial, all parties agree the United States
21
retained exclusive control over the lighting in the Memorial’s
parking lot. See J.A. 716. According to the declaration of
Steven Carter, the building manager at the Memorial, he would
have been immediately notified if the illumination in the
Memorial parking lot was low. See id. Similarly, Mr. Carter
asserts that, had he been so notified, he would have placed a
service call to have the defective lighting repaired. Once such
a call was placed, Mr. Carter avers that it would have been
documented in a computerized maintenance management system known
as “Maximo.” According to Mr. Carter, the Maximo system
contains a record of a service call to replace some of the
lights in the Memorial parking lot on October 27, 2006. Mr.
Carter further testifies, however, that those records also
indicate that the work was completed later that same day.
Appellant Lutfi disputes this testimony, asserting (a)
the lights were out on the evening of his accident and (b) other
evidence in the Maximo records undermines Mr. Carter’s
conclusion that the lights were repaired on October 27, 2006,
namely that the relevant work order was not “closed” until March
21, 2007. Resolving all disputes in Appellant Lutfi’s favor, we
will assume, for purposes of this appeal, that the lights were
out on October 27, 2006 and that they had not been repaired by
the time of Appellant Lutfi’s visit on November 17, 2006.
22
On these facts, it is clear that Appellant Lutfi’s
reliance on Chapman to support his claim that the United States
was grossly negligent is inapposite; rather, this case is more
akin to Frazier. Here, unlike Chapman, there is no evidence
that the United States made a deliberate decision to ignore the
allegedly dangerous conditions that were present in the parking
lot, nor is there any evidence that the United States
consciously disregarded these conditions. At most, the evidence
establishes that the United States was aware that the lights
were out in the parking lot for approximately two weeks before
the incident and that the United States had taken some
unsuccessful steps to correct the issue. Though this might
amount to ordinary negligence, it does not amount to the sort of
“egregious conduct” or “utter disregard of prudence” necessary
to establish gross negligence under Virginia law. Accordingly,
the district court did not err in concluding that a reasonable
jury could not find that the United States was liable to
Appellant Lutfi.
IV.
For these reasons, the judgment of the district court
is
AFFIRMED.
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