United States District Court, D. Colorado
KATHLEEN M. TAFOYA, Magistrate Judge.
This matter is before the court on Defendant United States of America's "Motion to Dismiss for Lack of Jurisdiction Pursuant to Fed.R.Civ.P. 12(b)(1)." (Doc. No. 28, filed Aug. 21, 2014.) Plaintiff's Response was filed on September 10, 2014 (Doc. No. 29), and Defendants' Reply was filed on September 24, 2014 (Doc. No. 30). For the following reasons, Defendant's Motion to Dismiss is GRANTED.
The following facts are taken from Plaintiff's Amended Complaint, filed March 5, 2014 (Doc. No. 23), as well as the parties' briefing with respect to this Order, and are undisputed unless otherwise noted.
A. Plaintiff's Injury
On October 21, 2010, Plaintiff, a military dependent, entered into the Peterson Air Force Base Commissary in Colorado Springs, Colorado to do some shopping. Plaintiff reached into an open-display refrigerator for a package of butter on an upper shelf in the cooler. In order to reach the butter, Plaintiff had to place her feet under a "case bumper rail." A case bumper rail is a six-inch tall, horizontal stainless steel rail installed into the ground in front of a display case for the purpose of protecting the display case from damage. As Plaintiff turned to place the butter in her shopping cart, her foot became caught on one of the vertical posts supporting the case bumper rail. Plaintiff fell sideways and hit her right knee on the case bumper rail and forcefully landed on the ground. Plaintiff alleges that she sustained permanent physical injury and humiliation as a result of this incident.
B. Background of Case Bumper Rail Installation at Peterson Air Force Base Commissary
The Defense Commissary Agency (DeCA), a federal agency affiliated with the United States Department of Defense, operates commissaries for all the branches of the United States military. See generally 32 C.F.R. § 383a. DeCA's mission is to "[p]rovide an efficient and effective worldwide system of commissaries for the resale of groceries and household supplies at the lowest practical price (consistent with quality) to members of the Military Services, their families, and other authorized patrons, while maintaining high standards for quality, facilities, products, and service." 32 C.F.R. § 383a.3. DeCA's responsibilities include "plan[ning], program[ming], budget[ing], design[ing], manag[ing], and ensur[ing] the execution of the commissary facilities' construction, modification, and repair programs." 32 C.F.R § 383a.5(a)(2).
In September 2004, DeCA formed the Facilities Standards Review Board (FSRB). The FSRB was formed to review commissary facility standards and, with input from "all different areas of the agency, " establish common facility standards that "meet the needs of the agency." (Mot., Ex. 2, Rule 30(b)(6) Deposition of John Stuit [Rule 30(b)(6) Dep.], at 11:14-12:6.) More formally, the FSRB was chartered to "provide review of all Facilities Program technical standards" and "ensure that all requests for criteria changes, marketing initiatives, equipment changes, and other infrastructure requirements are compatible with DeCA policies and directives, are consistent with approved engineering practices, and provide a cost-effective solution to operationally-defined requirements." ( Id., Dep. Ex. 2 at 11.)
In November 2004, the FSRB first considered whether to make case bumper rails a design standard in DeCA-operated commissaries. (Resp., Ex. 2; Rule 30(b)(6) Dep. at 18:1-3.) This issue arose because commissary display cases were being damaged by shopping carts, maintenance activities and pallet jacks. (Rule 30(b)(6) Dep., Ex. 2 at 13.) The FSRB considered both the "pros" and "cons" of the case bumper rails. ( Id. ) Ultimately, however, the issue was deferred to allow better research into available preventative solutions. ( Id. at 3.)
The FSRB revisited the case bumper rails issue in May 2005. (Resp., Ex. 3.) The FSRB considered several alternative systems for protecting commissary display cases, including a McCue in-floor system, which apparently failed after only a few years of use; and several systems that attached directly to the case, but were of limited availability in the United States. ( Id. ) Ultimately, the FSRB's recommendation was to "[m]aintain current criteria standard of corner guard bollards until a rail protection system attached to the case framework is available in the US" and to "[i]nstall the McCue in-floor or surface mounted systems on a case by case basis, considering the limitations of these systems." ( Id. )
By November 2005, DeCA had decided to install the case bumper rails in "all ongoing construction and design projects." (Resp., Ex. 4; Rule 30(b)(6) Dep. 29:11-30:6.) As of June 2013, case bumper rails systems had been adopted as a DeCA design standard. (Mot., Ex. 3.) A case railing bumper system has been installed in approximately 80-100 commissaries throughout the United States. (Resp., Ex. 11.)
The contract for the Petersen Air Force Base Commissary was awarded on September 13, 2005 and was completed on June 12, 2007. (Mot., Ex. 1, Deposition of John Stuit [Stuit Dep.], at 6:6-9.) A "case bumper rail system" was added to the construction of the Peterson Air Force Base Commissary via a "Statement of Work" contract modification dated February 6, 2006. (Stuit Dep., Ex. 4.) Accordingly, a case bumper rail system was installed in the Peterson Air Force Base Commissary according to DeCA specifications. (Rule 30(b)(6) Dep. at 10:17-24.)
Prior to Plaintiff's injury, between 2003 and 2009, DeCA learned of at least 8 reported injuries associated with the case bumper rail system, nationally, two of which resulted in litigation. (Resp., Exs. 5-11; id., Ex. 11 at 7-8.) DeCA has not formally reconsidered ...