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Dominguez v. United States

United States District Court, D. New Mexico

February 26, 2018

United States of America, Defendant.


          KIRTAN KHALSA United States Magistrate Judge.

         THIS MATTER is before the Court on Defendant's Motion to Dismiss Second Amended Complaint (ECF No. 17) For Lack of Subject-Matter Jurisdiction and Memorandum in Support filed July 19, 2017. (Doc. 21.) Plaintiff filed a Response on July 19, 2017. (Doc. 24.) Defendant filed a Reply on August 9, 2017. (Doc. 30.) Additionally, pursuant to this Court's order (Doc. 38), supplemental briefing was submitted by both parties. (Doc. 44; Doc. 47; Doc. 49.)

         Plaintiff Sarah Dominguez, a civilian, was injured while participating in an activity at the Para-Rescue Academy at the Kirtland U.S. Air Force Base. (Doc. 17 ¶¶ 11, 14.) Defendant, the United States of America, operates the Air Force base. (Doc. 17 ¶ 6.) Plaintiff filed this lawsuit seeking damages under the Federal Tort Claims Act based on the theory that Defendant is liable for her injuries which, she alleges, were caused by the negligence of Defendant's employees. (Doc. 17.) In the Motion presently before the Court, Defendant seeks dismissal of Plaintiff's claims for lack of subject matter jurisdiction pursuant to Federal Rule of Procedure 12(b)(1). (Doc. 21.) The Court, having considered the parties' submissions, the record, and the relevant law concludes that the Motion is not well taken, and shall be denied.

         I. The Law Governing Rule 12(b)(1) Motions

         A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may come in one of two forms-a “facial attack” or a “factual attack.” Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). A facial attack, which challenges the sufficiency of the allegations in the complaint, relates to the plaintiff's obligation, under Federal Rule of Civil Procedure 8(a)(1), to demonstrate that the court has jurisdiction over the subject matter of the case. Holt, 46 F.3d at 1002; 5B Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1350 (3d ed. 1998). “In reviewing a facial attack, a district court must accept the allegations in the complaint as true.” Holt, 46 F.3d at 1002. A factual attack, on the other hand, “challenges the facts upon which subject matter jurisdiction depends.” Holt, 46 F.3d at 1003. When reviewing a factual attack on subject matter jurisdiction, the truthfulness of the complaint's factual allegations is not presumed, and the court may, without converting the motion to a Rule 56 motion for summary judgment, consider affidavits and other documents to resolve disputed jurisdictional facts. Id. In either circumstance, “it is well-settled that the complaint will be construed broadly and liberally.” Wright & Miller, supra.

         II. The Relevant Law Governing Subject Matter Jurisdiction

         The United States, as a sovereign, is immune from suit except under circumstances in which it has unequivocally expressed its consent to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). “A waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” Id. As such, “[i]n the absence of clear congressional consent” the court has no jurisdiction to entertain a lawsuit against the United States. Id. “It is to presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the” plaintiff. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted).

         In 28 U.S.C. Section 1346(b)(1), Congress granted district courts original jurisdiction over

civil actions on claims against the United States, for money damages . . . for . . . personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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.

(Emphasis added). The crux of the issue raised by Defendant's Motion pertains to the language of Section 1346(b)(1) that the Court has italicized.

         Stated summarily, the Court is called upon to determine whether, applying New Mexico law to the circumstances of this case, a private entity would be liable for the negligently caused injuries alleged by Plaintiff. (Doc. 21 at 6; Doc. 24 at 4.) Defendant's Motion is premised on a theory that Plaintiff's claims, if brought against a private entity in New Mexico, would be barred by the enforcement of a signed waiver of liability; and, as such, the facts of this case preclude this Court's subject matter jurisdiction under 28 U.S.C. Section 1346(b)(1). Defendant's Motion constitutes a factual attack upon Plaintiff's Complaint. Accordingly, the information presented in the “background” section that follows derives from the allegations in Plaintiff's Complaint, and from documents and affidavits attached to the parties' respective papers. Holt, 46 F.3d at 1003 (stating that the Court is permitted to consider affidavits and other documents in considering a factual attack on its subject matter jurisdiction).


         On the day that she was injured, Plaintiff and a group of her coworkers from Sandia National Laboratories went to the Para-Rescue Academy (the Academy) to participate in team building exercises. (Doc. 17 ¶ 11; Doc. 21-1 ¶¶ 1-2.) One such exercise involved rappelling down an outdoor wall or “tower.”[1] (Doc. 17 ¶ 11; Doc. 21 ¶ 3; Doc. 24 at 5.) According to Plaintiff, climbing “was not to be part of the day's activities.” (Doc. 24-2 ¶ 10.)

         According to United States Air Force Staff Sergeant Jared Stidham, an instructor at the outdoor rappelling tower, “[t]he tower is not open to the general public[, ]” and “[b]efore a group can use the tower, the Air Force undergoes a Risk Management process to weigh risk factors and any mitigation, and it is approved by the 351 BATS commander.” (Doc. 21-1 ¶¶ 1, 8.) Plaintiff avers that she “did not participate in any so-called risk management process prior to participating in the team building activities, neither through . . . work with Sandia National Laboratories nor through the United States Air Force.” (Doc. 24-1 ¶ 2.)

         Before the climbing activity began, Sergeant Stidham gathered Plaintiff and her coworkers at the base of the tower and handed each of them a waiver of liability. (Doc. 21-1 ¶ 3.) As he distributed the waivers, Sergeant Stidham explained that the waiver “was a document relieving the Air Force from responsibility for injuries and that the participants had to understand they were taking a risk by rappelling.” (Doc. 21-1 ¶ 4.) According to Sergeant Stidham, the participants “had plenty of time to read the form” and no one had any questions related thereto. (Doc. 21-1 ¶ 4.) According to Plaintiff, there was “no discussion as to specific risks of rappelling, such as falling, the safety line possibly defaulting or not working”; and she does “not recall potential risks in general being listed or discussed.” (Doc. 24-1 ¶ 9.) The participants were not given the option of purchasing “special protections” such as insurance against negligence. (Doc. 24-1 ¶ 8.) Plaintiff signed the waiver. (Doc. 21-2; Doc. 21-1 ¶ 6.)

         Plaintiff informed Sergeant Stidham that she had no rappelling experience, and “no one” (it is unclear who, other than Sergeant Stidham, was instructing or leading the activity) assessed her skill level before allowing her to engage in the exercise. (Doc. 17 ¶¶ 18, 22; Doc. 24-1 ¶ 6.) Sergeant Stidham gave the participants some training (the extent of which is not clear). (Doc. 21-1 ¶ 8; Doc. 17 ¶¶ 11-12, 18, 22.) Sergeant Stidham averred that he does not allow a participant to rappel without taking his training and demonstrating, while still anchored to the tower, that he or she knows how to use the rappelling device. (Doc. 21-1 ¶ 8.)

         Sergeant Stidham provided Plaintiff with his personal rappelling equipment-including a harness and gloves, and Plaintiff and one of her co-workers were the first to rappel. (Doc. 17 ¶ 11; Doc. 24-1 ¶ 12.) They tested their levers by putting weight on the rope, and received instructions related to using the lever as a stopping mechanism. (Doc. 17 ¶ 11.) Rappelling requires a participant to walk up several flights of stairs to the top of the tower, and if the participant decides not to rappel, she may take the stairs back to the ground. (Doc. 21-1 ¶ 7.)

         Plaintiff reached the top of the wall to begin the exercise, and “[t]he next thing [she] remembers is lying in a bed at the Sandia Clinic.” (Doc. 17 ¶ 11.) After she fell, Plaintiff was physically moved instead of immobilized, and Defendant's staff did not contact emergency personnel. (Doc. 17 ¶ 13.) Instead, after Sergeant Stidham “assessed” her, Plaintiff's coworker took her to Sandia Clinic from where she was taken to the hospital in an ambulance. (Doc. 24-1 ¶ 13.) This lawsuit ensued.

         Plaintiff's Second Amended Complaint for Damages Under the Federal Tort Claims Act (Doc. 17) is comprised of two counts. In Count I “Negligence, ” Plaintiff claims that Defendant failed to exercise ordinary care in regard to several aspects of the rappelling-including, among other things, ensuring that the staff at the Academy possessed the adequate skill and competency to lead the exercise, and ensure the safety and efficacy of the rappelling equipment provided to Plaintiff by the Academy. (Doc. 17 ¶¶ 15-26.) She also claims that, after she fell, the Academy staff was negligent insofar as they (1) physically moved her or allowed her to be moved instead of immobilizing her, and (2) failed to contact emergency medical personnel. (Doc. 17 ¶¶ 13, 19.) Thus, although they are presented as a single claim, the Court construes the Complaint as alleging two circumstances of negligent conduct-one related to the cause of her fall, and one related to the manner in which she was treated after she had fallen. In Count II “Vicarious Liability, Respondeat Superior, Ostensible Agency and/or Agency, ” Plaintiff claims that Defendant is liable for her injuries under the Federal Tort Claims Act, 28 U.S.C. Section 2671 and 28 U.S.C. Section 1346(b)(1). (Doc. 17 ¶¶ 1-2, 27-33.)

         Defendant contends that the waiver Plaintiff signed before engaging in the rappelling activity is a valid and enforceable agreement under New Mexico law which effectively bars Plaintiff's claims, and by extension, precludes this Court's subject matter jurisdiction under 28 U.S.C. Section 1346(b)(1). (Doc. 21 at 4-11.) Plaintiff argues that the waiver is unenforceable as a matter of New Mexico law. (Doc. 24 at 4-11.) While the Court rejects the notion advanced by Plaintiff that the language of the waiver, insofar as it uses the term “climbing” instead of the term “rappelling” did not apply to the activity that led to her injury, the Court otherwise concludes that the waiver is, as Plaintiff argues, unenforceable owing to its vagueness and public policy implications.

         IV. Discussion

         A. The Waiver

         To provide context for the ensuing analysis, the language of the waiver in its entirety, excepting the signature lines, follows.

         USAF Pararescue/Combat Rescue Officer Climbing Tower WAIVER OF LIABILITY AND HOLD HARMLESS AGREEMENT

         1. In consideration for receiving permission to participate in climbing activities on the USAF Pararescue/Combat Rescue Officer School climbing tower, I hereby release, waive, discharge and covenant not to sue the United States Air Force Pararescue/Combat Rescue Officer School, its officers, and employees (hereinafter referred to as ‘releasees') from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to any loss, damage or injury, including death, that may be sustained by me, or to any property belonging to me, whether caused by the negligence of the releasees, or otherwise, while participating in the climbing (hereinafter referred to as ‘the event'), or while in, or upon the premises where the event is being conducted, while in transit to or from the premises, or in any place or places connected with the event.

         2. I am fully aware of risks and hazards connected with being on the premises and participating in the event, and I am fully aware that there may be risks and hazards unknown to me connected with being on the premises and participating in the event, and I hereby elect to voluntarily participate in the event, to enter upon the above named premises and engage in activities knowing that conditions may be hazardous, or may become hazardous or dangerous to me and my property. I voluntarily assume full responsibility for any risks of loss, property damage or personal injury, including death, that may be sustained by me, or any loss or damage to property owned by me, as a result of my being a participant in the Event, whether caused by the negligence of releasees or otherwise.

         3. I further hereby agree to indemnify and save and hold harmless the releasees and each of them, from any loss, liability, damage or costs they may incur due to my participation in the event, whether caused by the negligence of any or all of the releasees, or otherwise.

         4. It is my express intent that this Release shall bind the members of my family and spouse, if I am alive, or deceased, and my heirs, assigns and personal representative, if I am deceased, and shall be deemed as a Release, ...

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