Please ensure Javascript is enabled for purposes of website accessibility

National Park Service dismisses suit over guardrail

Virginia Lawyers Weekly//June 6, 2023

National Park Service dismisses suit over guardrail

Virginia Lawyers Weekly//June 6, 2023

Where a woman alleged the National Park Service’s failure to install guardrails in a particular section of a parking lot resulted in a car accident, the suit was dismissed. The park service’s discretionary decision was based on public policy considerations and was rationally related to a legitimate state interest.


Audrey Clement filed a complaint on Aug. 1, 2023 bringing a claim under the Federal Tort Claims Act, or FTCA, resulting from a car accident at a parking area near the Chesapeake and Ohio, or C&O, Canal National Historic Park. Clement named Kym Hall, National Capital Area Director of the National Park Service, or NPS, as the defendant. Hall has filed a motion to dismiss for lack of jurisdiction.


The FTCA waives the United States’ sovereign immunity with respect to certain damages actions based on “the negligent or wrongful act[s] or omission[s]” of federal employees. But there are certain limited exceptions to the FTCA’s waiver of sovereign immunity. Hall argues that one of these limited exceptions — the discretionary function exception — to the FTCA applies here and deprives this court of jurisdiction over Clement’s suit. The court agrees.

The exception applies if (1) “the challenged governmental conduct involves an element of judgment or choice” because no “statute regulation, or policy prescribes a specific course of action” and (2) “the judgment was one that the exception was designed to protect, namely, a judgment based on considerations of public policy.” Both prongs of the exception are satisfied here.

First, the challenged governmental conduct — the decision not to install guardrails in a particular section of a parking lot near the C&O Canal National Historic Park — involves an element of “judgment or choice.” NPS’ decision about where and whether to install guardrails in its parks or parking areas is not the subject of any mandatory federal statute, regulation or policy prescribing a specific course of action.

“If no such mandatory statute, regulation, or policy applies to remove the challenged conduct from the choice and judgment of the government, then [the court] move[s] to the second tier of the … analysis and ask[s] whether the choice or judgment involved is one ‘based on considerations of public policy.’” Where the relevant statute, regulation or agency guideline permits discretion, “‘it must be presumed that the [government’s] acts are grounded in policy when exercising that discretion.’” Accordingly, here, there is a strong presumption that the decision whether and where to install guardrails in the parking lot in which the accident occurred is based on public policy considerations.

Equal Protection

In her opposition, Clement argues that the NPS’ decision to install concrete barriers in the area of the parking lot utilized by park service workers but not in the area utilized by park visitors violates her constitutional right to equal protection. Although Clement has not alleged these causes of action in the complaint and the court would be acting within its discretion in denying to consider these new allegations at this stage, the Court will nevertheless briefly address the merits given plaintiff’s pro se status.

Clement essentially alleges that NPS has violated her (and other park visitors’) right to equal protection because NPS has prioritized the safety of workers over visitors by deciding to install barriers where workers park but not where visitors park (which abuts the canal). The parties agree that Clement’s equal protection claim would receive only rational basis review. Under the rational basis standard, the challenged government conduct need only be “‘rationally related to a legitimate state interest.’”

Here, Hall provides a very conceivable rationale for treating the portion of the parking area that abuts the canal (where visitors park) differently from other portions of the parking area — a “desire not to interfere with the aesthetics of the canal and the public’s view of the same.” Accordingly, the court finds that even if Clement had alleged that the United States had violated her constitutional right to equal protection in her complaint, that claim would not survive rational basis review.

Defendant’s motion to dismiss granted.

Clement v. Hall, Case No. 1:22-cv-00867, May 24, 2023. EDVA at Alexandria (Nachmanoff). VLW 023-3-278. 8 pp.

VLW 023-3-278

Virginia Lawyers Weekly

Verdicts & Settlements

See All Verdicts & Settlements

Opinion Digests

See All Digests