The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM DECISION and ORDER
Plaintiff David Bagner ("plaintiff" or "Bagner") filed suit against the United States of America ("defendant") pursuant to the Suits in Admiralty Act, 42 U.S.C. § 741 ("SIAA"), alleging that the injuries he sustained in a jet ski accident were caused by the negligence of the Army Corps of Engineers ("Corps"). Specifically, he argues that the Corps was negligent by failing to provide adequate warning of the submerged dam located at the Troy Lock and Dam on the Hudson River, north of Albany, New York. Defendant added Emily Hart ("Hart), the driver of the jet ski at the time of the accident, as a third-party defendant.
Pursuant to Fed. R. Civ. P. 12(b)(1), defendant moves to dismiss for lack of subject matter jurisdiction, based upon the discretionary function exception in the SIAA. Plaintiff opposes.
Oral argument was heard on March 24, 2006, in Albany, New York. Decision was reserved.
The Corps maintains and operates the Troy Lock and Dam. Passage through this federally-operated lock and dam provides access into the New York State Canal System. The dam at Troy is submerged, and spans most of the width of the Hudson River. The lock is located on the east side of the river, with a 400-foot-long wall to the north, and a shorter one to the south, to guide traffic into the lock.
The federal lock is only operational during "navigation season," from May 1 through November 30 each year, as is the New York State Canal System. The Corps claims that it does not keep the Troy lock open year round because of inclement weather, debris, high water on the river, lack of demand, and lack of funding. In short, it claims that the costs - of damage to the lock, damage to Corps' equipment, and danger to both the boaters and Corps' personnel operating in dangerous river conditions - outweigh any benefits there could be of keeping the lock open year-round.
As part of its duty in maintaining and operating the Troy Lock and Dam, the Corps is charged with warning mariners of dangers associated with the lock and dam. To facilitate uniformity and provide guidance regarding warning signs, the National Corps of Engineers developed a National Sign Program, which set forth its policies on "sign design, placement and use, management, maintenance, and economic considerations." (Docket No. 22, Def.'s Ex. 20, Stokes Aff. ¶ 4.) These policies are expressed in the Corps' Sign Standards Manual ("Manual"), which established standard guidelines for the use of signs that communicated information to the public. Each Corps field office must be in compliance with the Manual.
Section 14 of the Manual addresses lock, dam, and waterway signs. It identifies three basic sign types that should be used to identify specific areas or zones around a submerged dam: (1) A "Warning" sign, "used to notify boaters traveling upstream and downstream that they are approaching a dam. This is the first advisory warning that boaters will see." (Docket No. 22, Def.'s Ex. 17, Manual at § 14.10); (2) A "Danger: Submerged Dam 0000 Ft. Ahead" sign, "used to inform boaters traveling upstream and downstream that a dam is a specific distance ahead . . . [but] [p]lacement of this [sign] may not be necessary at gated structures where the overall level of hazard may be sufficiently controlled by the restricted areas around the dam." Id. at §14.11; and (3) A "Restricted: No Boat Here to Dam" sign, used to identify the "designated restricted area above and below a dam, [which] must be delineated for approaching watercraft." Id. at § 14.12 (emphasis added).
In addition to delineating the types of signs that should be used to warn mariners of dams, the Manual also illustrates possible sign plans and safety zone configurations. See e.g., id. at §§ 14.2, 14.4. However, the Manual does not specify the exact number of signs that must be used at each site, nor does it mandate location placement for every site. Instead, the Manual states that:
[t]he actual signs used at the projects will depend on the type of the facility and local conditions . . .
Extreme care should be taken to specify the correct sign, legend and size, and place these signs following the guidelines and specifications in this section. For the program to be successful, it is imperative that the viewer have every possible chance to read and heed the signs to help avoid potential accidents.
General sign placement guidelines are provided on page 14.44 through 14.48. These are provided to illustrate the rationale of the system but are not intended to be implemented without a review. Existing conditions must be evaluated on a site-by-site basis, followed by the development of a sign plan, using the signs and engineering criteria contained in this section. Lock, dam, and waterway sign plans are to be submitted to the designated Sign Program Manager for review and approval.
Id. at § 14.1. In a clarification memorandum to its district offices, the National Corps office emphasized that the Manual provides guidance on sign placement and that the diagrams show ideal sign placement in standardized situations. The sign program allows for flexibility in sign placement at actual project sites, provided that the choices made are based on sound and reasonable professional judgment and that there is written justification in the sign plan. (Docket No. 22, Def.'s Ex. 21 at 1.)
Additionally, in the Manual, the Corps specified that its sign system "is intended to complement the United States Coast Guard (USCG) Aids to Navigation and is not intended to be a substitute for the USCG system." Id. at 2. In addition to Corps signage, some federal sites utilized Coast Guard safety marking devices, such as buoys and daymarks, to mark, among other things, restricted areas. Id. In the aforementioned clarification memorandum, the Corps stated that "using a prominent line of appropriately marked buoys to block a restricted area may lessen ...