The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
The plaintiff, Jacoba Cornelisse, tripped and injured her knee while attending an exhibition at the Cooper-Hewitt Museum, a branch of the Smithsonian Institution in Manhattan. She subsequently commenced this action seeking damages under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671-2679. The parties consented to proceed before me for all purposes pursuant to 28 U.S.C. § 636(c), and a bench trial on the issue of liability was held from December 12-14, 2012. This opinion constitutes my findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure.
The Cooper-Hewitt is the national design museum and is located in a historic mansion originally built for Andrew Carnegie. (Tr. at 341).*fn1 From September 2007 to January 2008, it housed an exhibit entitled "Provoking Magic: The Lighting of Ingo Maurer." (Tr. at 111, 360-61). Mr. Maurer is a German lighting designer, and the exhibit consisted of light installations created by Mr. Maurer, including two transparent benches filled with hundreds of light-emitting diode ("LED") bulbs. (Tr. at 111-12, 365; Pl. Exh. 2, 11).*fn2 The benches were displayed in Gallery 118, an alcove beneath the grand staircase in the Great Hall. (Tr. at 112-14, 383-84). They were situated on a temporary floor or platform covered with a reflective metal laminate, facing a television screen where a video played continuously. (Tr. at 112, 366). This area of the exhibit also included a title wall as well as a chandelier that Mr. Maurer had covered with a sheer red fabric and supplemented with additional bulbs. (Tr. at 112, 366).
Ms. Cornelisse attended the Ingo Maurer exhibit on November 19, 2007. (Tr. at 185). As she was approaching the television screen and the benches, she kicked something with her right foot and stumbled forward; although she did not fall to the ground, she heard a crack in her left knee as she put weight on her left foot to brace herself. (Tr. at 186-87, 193-94). She then sat on one of the benches with her husband, Salah Ait Oukdim, for five or ten minutes watching the video before going upstairs to view additional exhibits. (Tr. at 187-90). When they returned to the first floor, Ms. Cornelisse reported her accident to members of the museum staff. (Tr. at 189-91). The staff called for medical assistance, and Ms. Cornelisse was removed to a hospital by ambulance. (Tr. at 164, 191).
At trial, the plaintiff testified that the temporary flooring on which the benches were located was three to four centimeters higher than the permanent floor on which it had been constructed. (Tr. at 189). Ms. Cornelisse also stated that there was no strip lighting to designate a change in level and no warning sign. (Tr. at 187).
Mr. Oukdim also testified at trial. Although he did not see his wife stumble (Tr. at 160), he did observe the vicinity where the accident occurred. He stated that the benches were located in a dark area (Tr. at 166) and that the temporary flooring was made of a transparent material like the benches (Tr. at 177). At trial Mr. Oukdim testified that the platform was raised three or three and one-half centimeters (Tr. at 162), though at his deposition he had estimated that it was two inches high (Tr. at 177-80). He never returned to the museum to take measurements. (Tr. at 180).
The plaintiff's daughter, Hadda Conde, visited the Cooper- Hewitt a day or two after the accident and took photographs of the area around the benches. (Tr. at 151-52; Pl. Exh. 11). According to Ms. Conde, she used a digital "point and shoot" camera with an automatic flash. (Tr. at 154-55). At trial, the only sources of light she remembered seeing were the benches and the television screen, and she did not recall the chandelier. (Tr. at 155-56). She did not measure the height of the flooring. (Tr. at 158-59).
Tracy Lynch, a security guard at the museum, was called as a witness by the plaintiff. (Tr. at 27-28). He testified that he had estimated the platform to be about two inches high (Tr. at 25, 53), though he never measured it (Tr. at 42). He also stated that the lighting in the area of the benches was adequate, as he indicated when he wrote a report of the plaintiff's accident. (Tr. at 38-39; Gov't Exh. A).
The plaintiff's expert witness at trial was Dr. William Marletta, a safety consultant with a doctorate in safety and health from New York University. (Tr. at 213-14). Dr. Marletta testified that the Smithsonian's own rules, as well as the Americans with Disabilities Act requirements and American National Standards Institute ("ANSI") standard A-117 set forth requirements for the transition between surface levels. (Tr. at 224). For a change in level of less than 1/4 inch, no transition is required. (Tr. at 224). Where the differerence is between 1/4 and 1/2 inch, the top quarter inch must be beveled with a rise-to-run ratio of one-to-two.*fn3 (Tr. at 224). For changes greater than 1/2 inch, the transition must be ramped, with a rise-to-run ratio of one-to-ten or one-to-twelve. (Tr. at 224).
Based in part on the testimony of other witnesses, Dr. Marletta concluded that the platform at issue did not meet these requirements. (Tr. at 224-25). He also examined a photograph of the exhibit, and inferred from certain visual cues that the change in level was greater than one inch. (Tr. at 225-26). For example, he compared the apparent change in level to the relative height of a stair tread, to the thickness of the LED benches, and to the size of an electric socket, all depicted in the photo. (Tr. at 226-27). Given what Dr. Marletta estimated the height of the transition to be, he testified that it should have been ramped, and it was not. (Tr. at 228-30).
Dr. Marletta was also of the opinion that because the change in height was not properly transitioned, it was necessary to provide some visual warning. (Tr. at 231). This could have been accomplished by marking the change in level with contrasting colors; however, the floor and the edge of the platform were both dark wood. (Tr. at 92-93, 228-32, 267). Alternatively, some type of warning sign might have been posted, but none was. (Tr. at 231-32).
Finally, Dr. Marletta testified that the lighting conditions in the vicinity of the platform did not conform to accepted safety practices. (Tr. at 233). In reaching this conclusion, he relied on testimony of witnesses who characterized the area as dark as well as on his review of the photograph taken by Ms. Cornelisse's daughter. (Tr. at 233-34). He also took light meter readings on March 30, 2011, and found illumination ranging from 0.1 to 0.3 foot candles in the rear of the area up to 4.9 foot candles in the front. (Tr. at 234-36). According to Dr. Marletta, safe conditions would have required 5.0 foot candles of illumination. (Tr. at 237-39). However, when he took his measurements, the Ingo Maurer exhibit had been taken down and replaced by an exhibit that was illuminated differently. (Tr. at 235 & Exh. Z).
The defendants' first witness, Janice Slivko, is the Smithsonian's construction manager/architect responsible for its properties in New York City, including the Cooper-Hewitt. (Tr. at 335-36, 339-40). She acknowledged that the Smithsonian's safety and accessibility guidelines for a change in level are equivalent to the ADA guidelines; for a change of between 1/4 and 1/2 inch, the lower 1/4 inch may be vertical, but the upper 1/4 inch must be beveled with a rise-to-run of one-to-two. (Tr. at 354). Consistent with the Smithsonian's standard operating procedure, Ms. Slivko reviewed the plans for the Ingo Maurer exhibit and forwarded them to the appropriate personnel, including the accessibility coordinator and an engineer with the Office of Safety and Emergency Management, for further review. (Tr. at 357-63; Exhs. E, F, G, H). The plans contained flooring elevations (Tr. at 366-69; Exh. Q), and were reviewed for public safety concerns, among other things. (Tr. at 365). Those plans called for the flooring under the LED benches to be constructed of a "linoleum type product" over half inch MDF, which is the acronym for multi density fiber board. (Tr. at 367, 388). The top 1/4 inch of the edge was to be beveled with a one-to-two slope. (Tr. at 368; Exh. Q). Ms. Slivko participated in between six and twelve walk-throughs of the exhibit before it opened to the public, and she ...