The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is a tort action against the United States brought pursuant to 28 U.S.C. § 1346(b)(1). Now before the Court is Defendants' motion (Docket No. [#16][#18]) to dismiss for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). For the reasons that follow, the application is granted and this action is dismissed.
This action arises from a slip-and-fall injury on the West Pier of Rochester Harbor in Rochester, New York, known as the Charlotte Pier ("the Pier"). The Pier is owned by the United States and is maintained by the U.S. Army Corps of Engineers ("the Corps"). The Corps. has granted a license to the County of Monroe, State of New York, to use the Pier for public recreation. On July 1, 2005, Laura Reichart ("Plaintiff") was walking on the Pier, when she tripped on a hole in the concrete surface, fell, and fractured her arm. According to Plaintiff, the hole was "17 inches across, 36 inches wide and 3 inches deep." (Complaint ¶ 7). The Corps knew that the Pier's surface was in need of repair. Raymond N. Lewis ("Lewis"), Chief of the Corps.' Operations and Maintenance Office for the region, states:
The west pier of Rochester Harbor was inspected during the 2000-2005 period of time by walking on it and identifying problems with the structural stability of the pier, such as lifting or separating. As a result of our inspections, I was aware of the condition of the pier. In addition, the Corps received periodic communications from third-parties about the pier and its [poor surface] condition. . . . Our inspections showed that substantial surface areas of the concrete cap had deteriorated over the years as the result of waves crashing onto the pier, coupled with freeze-thaw cycles. (Lewis Affidavit, Docket No. [#16-2] at ¶ 17, 19). Lewis further states that the Corps. decided not to seek funding to repair the Pier's surface, since Rochester Harbor is a low priority harbor for the Corps.:
Although I was aware of the condition of the pier surface, I decided not to request funds to resurface the concrete cap on the piers. I made this decision because the deteriorated surfaces did not negatively impact the authorized purpose of Rochester Harbor as a commercial harbor, and because Rochester Harbor was not a project with high priority within the [Corps'] Buffalo District. In my judgment, and to my knowledge[, and in] the judgment of my colleagues and supervisors, our operations and maintenance resources were more appropriately devoted to work on other projects given higher priority, and to performing other, more critical work at Rochester Harbor, such as dredging the commercial navigation channels. (Id. at ¶ 20). As for cost, Lewis estimated that it would cost over one million dollars to repair the surface of the Pier. (Id. at ¶ 21). Lewis considered posting warning signs at the Pier, but decided against it:
I determined that posting warning signs at the west pier was unwarranted for a variety of reasons. First, I did not think they were necessary considering the negligible safety risks.*fn1 Second, I did not think they would be very helpful in any event because any potentially unsafe conditions were open and obvious; there were and are no hidden dangers to my knowledge. Third, I was concerned that any signs we posted would be stolen and/or defaced. I believed that if the Corps decided to post warning signs, the Corps would be bound to continually inspect and replace stolen/defaced signs, and expense and obligation that was unjustified in my judgment. (Id. at ¶ 25). Lewis further decided that there was no need to close the pier to pedestrian traffic: "Since I did not consider the west pier to be dangerous, I did not ever seriously consider the possibility of closing the pier to the public. I believe that closing the pier would be politically very unpopular, and in my judgment, completely unwarranted." (Id. at ¶ 24). Finally, Lewis states that he is not "aware of any law, regulation or policy that binds the Corps to take a specific action with respect to public safety at the west pier of Rochester Harbor," and maintains that "Corps activity and inactivity with respect to inspections, maintenance and public safety at Rochester Harbor, including the west pier, is a matter of discretion." (Id. at ¶ 26).
Certain federal regulations address the Corps's operation and maintenance of the Pier. Engineering Regulation ("ER") 1130-2-520, Chapter 3, entitled "Protection of Public Health and Safety at Jetties, Groins, and Breakwaters," Section 3-2, states, in relevant part:
District Commanders shall operate and maintain jetties, groins, and breakwaters for their functions as navigation aids and shoreline protection structures in a manner that does not enhance or encourage recreational or other public use unless a non-Federal entity has sponsored recreation.
Specific guidance on development and execution of Project Cooperation Agreements is provided in ER 1130-2-500.
Where local interests do not choose to cost-share in recreation facilities at navigation projects, district commanders shall be authorized to provide 'minimum facilities for public health and safety . . . . District commanders shall be responsible for determining minimum facilities for public health and safety, such as guardrails, barricades, fencing, and warning signs . . . as required for public safety. Where negligible safety hazards exist or public access is not readily provided, facilities may not be required. (Field Affidavit, Docket No. [#16-5], Exhibit 8) (emphasis added). Engineering Pamphlet ("EP") No. 1130-2-520, entitled "Navigations and Dredging Operations and Maintenance Guidance Procedures," Sections 3-3, 3-4, and 3-6, further provides:
a. [The Corps] currently operates and maintains 667 jetties, groins, and breakwaters in the coastal and Great Lakes regions of the United States. Approximately one-half (318) of these . . . structures are used by the public for recreation. This pamphlet will provide national consistency in the procedure for determining ...