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February 23, 2004.


The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


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 Cristóbol 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. ยง 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. FEB 25 2004


 Plaintiff's Injury

  On July 27, 1995, Souchet, a Chicago resident, visited the Fort San Cristóbol monument in San Juan, Puerto Rico, with her two sons, Julian Benitez ("Benitez") and Jose "Joe" Pelegri ("Pelegri"), and Pelegri's fiance. (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. (Id.) Souchet was wearing pants, a shirt, and leather gym shoes with a rubber Page 2 tread. (Id.)

  Souchet and Benitez entered the Fort, while Pelegri and his fiance went to a nearby store to purchase umbrellas, (Id.) According to Madeline Yoran, San Juan Park Management Assistant, a large (3' × 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.*fn2 (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*fn3; 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 fiance 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.) Page 3 Souchet testified that it was dark and slippery in the tunnel. As she and her son walked down the ramp, Souchet steadied herself by 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, (Id.)

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

  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. (Id.) 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. (Id.) The report notes that while they waited for the ambulance, Souchet told her son she had been concerned that her tennis shoes were slippery. (Id.) 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. (Id.)

  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, (id.) She has been treated by two doctors in Chicago, one of whom is an orthopedic surgeon. (Id.) Some pain remains today in Souchet's left wrist and elbow when she does housework and lifts heavy items. (Id.) Although she seeks recovery for pain and physical limitations in this lawsuit, Souchet acknowledges that she Page 4 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 Cristóbal

  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 Cristó bal, one of the San Juan Forts, is one of 18 World Cultural Heritage Sites located in the United States.*fn4 The San Juan Forts include some structures that date as far back as 1539. (Id.) Construction of Fort San Cristóbol officially commenced in 1625. (Id.) 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. (Id.)

  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. (Id.) Paul Hartwig, then superintendent of the San Juan Park, explained that the guidelines require preservation of the resources in perpetuity for future generations. (Id.) 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. (Id.) 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. (Id.)

  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. Page 5 (Id.) Hartwig determined that a handrail was not necessary in Tunnel Number 10, however, because rainwater rarely seeps into that tunnel. (Id.) 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.)*fn5 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 ...

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