                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-1966


GEORGE LUTFI,

                 Plaintiff - Appellant,

           v.

UNITED STATES OF AMERICA,

                 Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:09-cv-01114-AJT-IDD)


Argued:   March 21, 2013                  Decided:   April 24, 2013


Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Steven Michael Oster, Washington, D.C., for Appellant.
Joseph Edward Krill, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            In     this     Federal        Tort       Claims       Act       (“FTCA”)    case,

Appellant George Lutfi (“Appellant Lutfi”) appeals the district

court’s    dismissal       of     his    claim        for   lack       of    subject     matter

jurisdiction.

            The    underlying           dispute       arose      after      Appellant     Lutfi

injured    his    arm     while    visiting          the    United       States    Air    Force

Memorial     (“Memorial”)          in    Arlington,           Virginia.           On    appeal,

Appellant    Lutfi       alleges:       (1)     the    district         court     erroneously

granted the United States’ motion to dismiss for lack of subject

matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and,

instead, the district court should have treated the motion as

one for summary judgment under Fed. R. Civ. P. 56; (2) the

district court erroneously applied Virginia’s recreational land

use   statute          (“RLUS”),      which         required       Appellant       Lutfi      to

establish    gross       negligence;       and       (3)    in    the       alternative,     the

district court erred in concluding that there were no genuine

issues of material fact on the issue of gross negligence.

            We reject these arguments and hold instead: (1) the

district court’s reliance on Fed. R. Civ. P. 12(b)(1), though

erroneous,       was    harmless        error       inasmuch      as    Appellant       Lutfi’s

substantial rights weren’t affected; (2) the district court did

not err in applying the RLUS given that Appellant Lutfi was

sightseeing      while     he   was      visiting      the       Memorial;      and    (3)   the

                                                2
district court did not err in concluding there were no genuine

issues of material fact on the issue of gross negligence.

            Accordingly, we affirm the judgment of the district

court.

                                          I.

                                          A.

            On   Friday,       November    17,   2006,        Appellant      Lutfi   and

several     of   his     relatives        arrived        at     the    Memorial       at

approximately     8:00    p.m.      According       to    Appellant       Lutfi,     the

purpose of the visit to the Memorial was to “highlight American

values” for the benefit of a young relative who was visiting

from out of town.        See J.A. 1034-35. 1             Neither Appellant Lutfi

nor his relatives paid a fee to visit the Memorial or park in

the Memorial’s parking lot.

            The group came in two separate cars and, upon arrival,

parked in a section of the parking lot reserved for Memorial

visitors.    According to Appellant Lutfi, several of the lights

in   the    parking      lot     were     not    functioning          that    evening.

Specifically, Appellant Lutfi alleges that the only functioning

lights were on the lower end of the parking lot, behind their

vehicles and in the opposite direction of the Memorial.                        He also


     1
       Citations to the J.A. refer to the Joint Appendix filed by
the parties in this appeal.



                                          3
alleges there were several light poles in the area surrounding

their     vehicles,     but    the    lights        on     those    poles   were    not

functioning.

            Appellant Lutfi and his relatives visited the Memorial

for   approximately      twenty       minutes       before    returning     to     their

vehicles.     Appellant Lutfi alleges that, while walking through

the parking lot on his way back to the vehicles, he stepped on a

wire hoop that was hidden beneath a patch of leaves on the

ground.     According to Appellant Lutfi, the hoop encircled his

ankles, causing him to fall to the ground and fracture his arm.

                                          B.

            As a result of this injury, Appellant Lutfi brought

multiple    actions     in    state   and        federal    court   against     various

defendants.         Specifically,       on       November    17,    2008,   Appellant

Lutfi, proceeding pro se, filed an action in Arlington County

Circuit     Court     against     three          private     federal    contractors.

However,    on   July    27,    2010,    Appellant          Lutfi   filed   a    motion

seeking voluntary dismissal of that lawsuit, which the state

court granted.

            On October 2, 2009, Appellant Lutfi, again proceeding

pro se, brought the present action against the United States in

the United States District Court for the Eastern District of

Virginia.     In his initial compliant, Appellant Lutfi generally

alleged that the United States negligently failed to warn or

                                             4
protect     visitors     against          the     dangerous         conditions      that   were

allegedly present in the parking lot, namely the presence of

construction debris and the existence of inadequate lighting.

On   July   26,   2010,       Appellant         Lutfi,       this    time    acting    through

counsel,     filed      an     amended          complaint      (“Amended        Complaint”),

reincorporating         the     original         allegations          against    the    United

States      and    adding           (1)    claims           against      several       private

contractors, including those named in the original state court

action,     and   (2)    a     claim      that       the    United     States    negligently

failed to supervise those contractors. 2

             On   July        26,    2010,       the       district    court     issued     its

initial scheduling order, which provided that discovery would

conclude    on    December       10,      2010.        However,       the    district      court

later     enlarged   this       period       by      two    months.         Thus,   Appellant

Lutfi’s discovery period expired on February 11, 2011, giving

him a total of seven months in which to complete discovery.

             On October 8, 2010, the United States filed its first

motion to dismiss.            In that motion, the United States argued (1)

Appellant Lutfi had failed to establish that the United States

was liable under Virginia law and, therefore, the district court



      2
       The Amended Complaint’s claims against the independent
contractors were all dismissed in separate orders and are not
relevant here.



                                                 5
lacked     subject    matter   jurisdiction     under     the   FTCA; 3    (2)   the

FTCA’s      independent   contractor    exception       insulated    the    United

States from liability because the United States had delegated

the construction and maintenance of the Memorial’s parking lot

to an independent contractor; and (3) the FTCA’s discretionary

function exception similarly insulated the United States from

liability because the decision to hire an independent contractor

was a discretionary function.               The district court denied this

motion on November 19, 2010, in order to give Appellant Lutfi a

“full and fair opportunity to conduct discovery.”                 J.A. 1036-37,

n.4.       In a separate order also entered that day, the district

court enlarged the discovery period by two months.                See R. 62. 4

              On February 14, 2011, following the conclusion of the

discovery period, the United States filed a motion to dismiss

pursuant to Fed. R. Civ. P. 41(b) 5 alleging that Appellant Lutfi

had    engaged       in   “litigative       misconduct”     during        discovery
       3
        As discussed in more detail, infra, the FTCA vests
district courts with jurisdiction to hear tort claims asserted
against the United States only to the extent that “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.” 28 U.S.C. § 1346(b)(1).
       4
       Citations to “R.” refer to district court ECF docket entry
numbers not included in the Joint Appendix.
       5
       Fed. R. Civ. P. 41(b) provides, “[i]f the plaintiff fails
to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against
it.”



                                        6
sufficient       to    warrant       involuntary       dismissal.           R.     188.       The

magistrate       judge       heard      argument     on    this    motion      and,     in    the

ensuing report and recommendation, recommended dismissal.                                     See

R. 286, at 21 (“Given Plaintiff’s past behavior in response to

the   Court’s     orders          and    instructions,        this     Court     finds       that

dismissal    of       this    case      with    prejudice     is      the   only    effective

sanction.”)

            While        the      Rule     41    motion     was    pending       before       the

district    court,       the      United    States        filed   a    renewed     motion      to

dismiss    for    lack       of    subject       matter     jurisdiction         or,    in    the

alternative, for summary judgment.                        The district court granted

the United States’ renewed motion to dismiss on April 22, 2011.

In so doing, the district court properly noted, under the FTCA,

federal    courts       only      possess       subject     matter     jurisdiction          over

tort claims asserted against the United States to the extent

that the United States would have been liable as a private party

under the law of the state in which the tort occurred.                                 See J.A.

1033-34 (citing Goldstar (Panama) S.A. v. United States, 967

F.2d 954, 969 (4th Cir. 1992); 28 U.S.C. § 1346(b)).

            In determining whether the United States would have

been liable to Appellant Lutfi under Virginia law, the district

court first concluded that the RLUS applied to Appellant Lutfi’s

claims.      Under the RLUS, a landowner who makes its property

freely     available         to    the     public     for     recreational          purposes,

                                                 7
including         “sightseeing,”           has    no     liability      except      for     “gross

negligence         or    willful     or    malicious        failure      to     guard     or   warn

against a dangerous condition, use, or structure, or activity.”

Va. Code 29.1-509(B) & (D).                  Therefore, the district court found

the    RLUS       applicable        because       (a)     the    United       States     did    not

receive       a    fee       in   return    for        Appellant    Lutfi’s        use    of   the

Memorial and (b) Appellant Lutfi was sightseeing when his injury

occurred.          Accordingly, the district court concluded Appellant

Lutfi must show that the United States was grossly negligent

under Virginia law in order to prevail.

                  The district court then concluded Appellant Lutfi had

failed to make such a showing.                           In so holding, the district

court noted, “[u]nder Virginia law, ‘gross negligence is that

degree of negligence which shows an utter disregard of prudence

amounting         to    complete     neglect       of    the    safety     of      another’     and

requires          ‘a    heedless     and     palpable       violation         of    legal      duty

respecting the rights of others.’”                          J.A. 1035 (quoting Frazier

v. City of Norfolk, 234 Va. 388, 393 (1987)).                                    Applying this

definition to the facts at hand, the district court concluded

that,     even         resolving      all        disputed       facts     and      drawing     all

reasonable inferences in Appellant Lutfi’s favor, a reasonable

jury    could          not   conclude      that    the     United       States     was    grossly

negligent under Virginia law.                      See J.A. 1035-36.               Accordingly,

the district court granted the United States’ motion to dismiss.

                                                   8
                                        II.

            “We review de novo a district court’s dismissal for

lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1).”        Taylor v. Kellogg Brown & Root Servs.,

Inc., 658 F.3d 402, 408 (4th Cir. 2011).

            Similarly,    we    review       the   district    court's      grant   of

summary judgment de novo.           Ray Commc’ns, Inc. v. Clear Channel

Commc’ns, Inc., 673 F.3d 294, 299 (4th Cir. 2012).                           Summary

judgment is appropriate if “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law.”         Fed. R. Civ. P. 56(a).                When evaluating a

motion for summary judgment, a court is required to view all

facts and reasonable inferences in a light most favorable to the

nonmoving party.       Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).       The moving party carries the initial burden to

establish   the   absence      of   a   genuine      issue    of   material    fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).                           If the

moving party meets this burden, the non-moving party must then

go beyond the pleadings and “set forth specific facts showing

that there is a genuine issue for trial.”               Id. at 324.

            Finally,    when    reviewing      the    judgment     of   a   district

court, we will “disregard all errors and defects that do not

affect any party’s substantial rights.”               Fed. R. Civ. P. 61; see

also 28 U.S.C. § 2111.

                                         9
                                     III.

              Pursuant to the doctrine of sovereign immunity, the

United States is immune from private civil actions absent an

express waiver.      See Kerns v. United States, 585 F.3d 187, 193-

94 (4th Cir. 2009) (citing United States v. Sherwood, 312 U.S.

584, 586 (1941)) (“Absent a statutory waiver, sovereign immunity

shields the United States from a civil tort suit.”)                Through the

FTCA, Congress expressly waived sovereign immunity for certain

tort    claims,    vesting   federal    district      courts    with   exclusive

jurisdiction over all civil actions brought against the United

States    “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.”

28   U.S.C.    §   1346(b)(1).      Because       Appellant    Lutfi’s    alleged

injury occurred in Arlington, Virginia, Virginia law governs the

merits of this case.         Accordingly, the district court possessed

subject matter jurisdiction over this matter to the extent that

the United States, if a private person, would have been liable

to Appellant Lutfi under Virginia law.

                                       A.

              Appellant Lutfi first argues that the district court

erred    in   dismissing     his   claim    for    lack   of   subject    matter

jurisdiction pursuant to rule 12(b)(1) of the Federal Rules of

Civil Procedure.        He bases this argument on our decision in

                                       10
Kerns, wherein we reversed a district court’s dismissal of a

case   for    lack       of   subject     matter       jurisdiction       and    held   that,

instead, the district court should have “assume[d] jurisdiction

and assess[ed] the merits of the claim” in order to give the

plaintiff the benefit of the procedural protections of a motion

for summary judgment.            Kerns, 585 F.3d at 195.

              Ordinarily, a defendant may challenge the existence of

subject      matter       jurisdiction        in       one    of   two    ways:     (1)    by

contending that a complaint fails to allege facts upon which

subject matter jurisdiction can be based (a “facial challenge”)

or (2) by contending that the jurisdictional allegations made in

the complaint are not true (a “factual challenge”).                              See Kerns,

585 F.3d. at 192-93 (citing Adams v. Bain, 697 F.2d 1213, 1219

(4th   Cir.    1982)).          In    a   facial       challenge,      the    plaintiff    is

afforded the same procedural protections as he would be accorded

when faced with a motion to dismiss for failure to state a claim

pursuant      to    Rule       12(b)(6)     of     the       Federal     Rules    of     Civil

Procedure.         Namely, all alleged facts are taken as true and the

motion will be denied if the complaint alleges facts that, if

proven, would be sufficient to sustain jurisdiction.                                See id.

In a factual challenge, a trial court “may then go beyond the

allegations        of    the    complaint        and    in    an   evidentiary         hearing

determine     if     there      are   facts      to     support     the      jurisdictional

allegations.”           Id.

                                              11
               This    legal      framework       is    normally        effective       for    the

resolution of subject matter jurisdiction disputes.                                 However, in

cases     where        the       jurisdictional           facts        are        “inextricably

intertwined” with those central to the merits of the dispute,

this framework falls short.                     Kerns, 585 F.3d at 193.                 In such

cases,    “a    trial     court        should     then       afford     the    plaintiff       the

procedural safeguards — like discovery — that would apply were

the    plaintiff       facing      a    direct       attack     on    the     merits.”         Id.

Accordingly, “[a]s the Supreme Court has held with respect to

such     situations,         a    trial     court       should        dismiss       under     Rule

12(b)(1) only when the jurisdictional allegations are clearly

immaterial,        made          solely     for        the      purpose        of      obtaining

jurisdiction or where such a claim is wholly unsubstantial and

frivolous.”       Id.     (internal         quotation           marks       and     alterations

omitted).

               Thus,    Appellant          Lutfi       contends       that,       because      the

jurisdictional and merits facts are inextricably intertwined in

this case, the district court erred in dismissing for lack of

subject    matter       jurisdiction         under       Fed.    R.     Civ.      P.   12(b)(1).

Instead, Appellant Lutfi argues that the district court should

have assumed jurisdiction and resolved this case on the merits.

We    agree.      There      is    no     dispute      that     the    jurisdictional          and

merits issues are “inextricably intertwined” in this case, as

the question of jurisdiction under the FTCA turns entirely on

                                                12
the question of whether the United States could be liable to

Appellant         Lutfi       under    Virginia     law.   Thus,   under    Kerns,   the

district court should have assumed jurisdiction and decided this

case       on     a    motion    for     summary     judgment.     Accordingly,      the

district court’s dismissal of Appellant Lutfi’s claims for lack

of subject matter jurisdiction was improper.

                  However, as the United States correctly argues, this

error was harmless. 6                Under the harmless error doctrine, we “must

disregard all errors and defects that do not affect any party’s

substantial rights.”                  Fed. R. Civ. P. 61; see also 28 U.S.C.

§ 2111 (“On the hearing of any appeal . . . the court shall give

judgment . . . without regard to errors or defects which do not

affect the substantial rights of the parties.”)                            An error is

harmless if we can say “with fair assurance, after pondering all

that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error . . . .”                Kotteakos v. United States, 328 U.S. 750, 765

(1946); see also Taylor v. Virginia Union Univ., 193 F.3d 219

(4th       Cir.       1999)    (en    banc)   (formally    adopting   the    Kotteakos

harmless error standard for civil cases).


       6
       The United States also argues Appellant Lutfi waived this
procedural argument by failing to raise it below.        However,
because we conclude the district court’s error was harmless, we
need not determine whether this argument was, in fact, waived.



                                               13
               Here, we can say with fair assurance that, had the

district       court    assumed      jurisdiction          and    analyzed       the     United

States’ motion pursuant to Rule 56 of the Federal Rules of Civil

Procedure, the court would have reached the same result.

               Notably, Appellant Lutfi’s argument that the district

court erroneously dismissed this case pursuant to Rule 12(b)(1)

is based entirely on our decision in Kerns.                            However, in Kerns,

the court’s primary concern was the fact that the plaintiff had

not     been    allowed       to    conduct        discovery       and    thus,     was     not

afforded “the procedural safeguards . . . that would apply were

the plaintiff facing a direct attack on the merits.”                                     Kerns,

585 F.3d 193.

               In    contrast,      here,   Appellant        Lutfi       was   given      seven

months to conduct discovery.                This includes the five months from

the   original        scheduling      order    and     the       additional      two     months

awarded thereafter.                Moreover, Appellant Lutfi was, in fact,

accorded       the     procedural     safeguards        of       the     summary    judgment

standard, as the district court resolved all disputed factual

matters and drew all reasonable inferences in his favor.                                   See,

e.g.,    J.A.       1034-35   (“For    purposes       of     this      motion,     the    Court

accepts    as       true   these     characterizations            of     the   purpose     and

nature of plaintiff’s visit to the Memorial, but nevertheless

concludes that they do not take his visit outside the scope of

the   Recreational         Use     Statute.”);       J.A.     1035       (“Accepting       that

                                              14
testimony     as    true,      there   is      nothing    in      the   record      that

establishes how long that condition may have existed before the

accident     or    that   the    United     States   was    on     notice     of    that

condition.”) (emphasis supplied).                This conclusion is bolstered

by the additional facts that: (1) as noted above, the district

court initially denied the United States’ motion to dismiss for

lack of subject matter jurisdiction in order to afford Appellant

Lutfi an opportunity to conduct discovery; and (2) the district

court’s final dismissal arose in the context of a motion to

dismiss     for    lack   of    subject     matter   jurisdiction       or,    in    the

alternative, for summary judgment.

             Accordingly, we can say with fair assurance that the

district court’s erroneous reliance on Fed. R. Civ. P. 12(b)(1)

did   not   effect    its      ultimate   conclusion       that    Appellant       Lutfi

could not establish that the United States was liable to him

under Virginia law.            Therefore, the district court’s error was

harmless.

                                          B.

             Appellant Lutfi next argues the district court erred

in applying the RLUS for two reasons.                    First, Appellant Lutfi

contends that the RLUS only applies to those entities for whom

the existence of the RLUS’s reduced standard of care was the

primary motivation for opening their land to the public and,

therefore, the RLUS does not apply to the United States as the

                                          15
United States was otherwise motivated to build the Memorial.

Second, Appellant Lutfi contends that the RLUS does not apply

because he was not sightseeing during his visit to the Memorial.

We reject both arguments.

                                         1.

            First,     Appellant    Lutfi      contends         that    the    RLUS    only

applies to those entities for whom the existence of the RLUS’s

reduced standard of care was the primary motivation for opening

their land to the public.               According to Appellant Lutfi, the

United States does not fit this description because, he asserts,

it   likely    would     have    opened       the    Memorial          to     the    public

regardless of whether it would enjoy the protection of the RLUS.

Thus, Appellant Lutfi concludes the RLUS does not apply here.

            In support of this argument, Appellant Lutfi relies on

Piligian v. United States, 642 F. Supp. 193, 195 (D. Mass. 1986)

(“[T]he   landowner      whose    liability         the    legislature         sought    to

limit is the one for whom the existence of the RLUS provides the

primary     motivation    in     allowing      the        public   on       his     land.”)

However, this reliance is inapposite.

            First, Piligian is distinguishable.                    In Piligian, the

plaintiff     was   injured     while   sitting       on    a    shopping         concourse

outside the Pentagon.           Just prior to the injury, the plaintiff

had taken a free tour of the Pentagon.                          As a result of the

injury, she filed suit against the United States under the FTCA.

                                         16
The   United       States    argued    that        the   RLUS    applied      because      the

plaintiff was sightseeing at the time of her injury.                                However,

the Piligian court rejected this argument, concluding instead

that the RLUS did not apply because the United States had, in

fact, received a fee in exchange for the use of its property.

              The Piligian court based this conclusion on the fact

that the injury occurred on a shopping concourse located just

outside the Pentagon, as opposed to the Pentagon grounds.                                  The

shops on this concourse paid royalties to the United States.

Accordingly,        the     Piligian    court       likened      the   concourse       to    a

shopping mall and, therefore, concluded that the RLUS did not

apply.    See Piligian, 642 F. Supp. at 195 (“[T]he concourse area

is not unlike any suburban shopping mall, where in addition to

the shops, there are areas for relaxing, listening to music, and

viewing temporary exhibits, or what have you.”)

              Here,       Piligian     is     inapplicable         because         Appellant

Lutfi’s injury did not occur in a “commercial area” like the one

at    issue    in    Pilgian.        J.A.     1036.       Moreover,         even   assuming

Piliian is analogous, we decline to hold that the existence of

the    statute’s      limitation       of     liability         provision     must    be    a

landowner’s “primary motivation” for opening its land to the

public in order for the statute to apply.                              There is simply

nothing       in    the   statute      that        supports     such    a    requirement.

Rather, the only two pre-requisites listed in the statute are

                                              17
(1) the requirement that the landowner not receive a fee in

exchange for use of its property and (2) the requirement that

the property be used for a “recreational purpose.”                            Because both

of these pre-requisites are met in the present case, the RLUS

applies.

                                               2.

            Appellant            Lutfi’s        second      argument      against         the

application of the RLUS is that he was not “sightseeing” at the

Memorial    but,       instead,        he     went   to    the   Memorial       to    impart

American values on his visiting young relative, which he argues

is not “sightseeing.”

            We first note that neither the statute nor Virginia

courts have defined the term “sightseeing” as it is used in the

RLUS.      Thus,     we     must       give    the   term    its      ordinary       meaning.

Johnson v. Zimmer, 686 F.3d 224, 243 (4th Cir. 2012) (“[W]hen

terms   used    in     a    statute      are    undefined,       we    give    them    their

ordinary meaning[.]”); see also Hamilton v. Lanning, 130 S. Ct.

2464, 2471 (2010).               In ascertaining a term’s ordinary meaning,

both this court and the Supreme Court have relied on the term’s

dictionary definition.                 See, e.g., United States v. Gonzales,

520 U.S. 1, 5 (1997); see also N. Carolina ex rel. Cooper v.

TVA, 515 F.3d 344, 351 (4th Cir. 2008).                          Accordingly, we join

the   district       court       and   adopt     the      relevant     definitions      from

Webster’s      Third       New    International        Dictionary.        Specifically,

                                               18
that dictionary defines “to sightsee” as “to go about seeing

sights of interest” and further defines a “sight” as “a thing

regarded as worth seeing.”               J.A. 1035 (citing Webster’s Third

New International Dictionary at 2114-15).

             We   also   agree    with    the    district   court’s    conclusion

that Appellant Lutfi’s visit to the Memorial fits within this

definition.       Simply put, Appellant Lutfi and his relatives were

going to “see” the Memorial, a “thing regarded as worth seeing.”

J.A. 1035.        Notwithstanding his laudable objective, Appellant

Lutfi’s trip to the Memorial fits well within the parameters of

the term “sightseeing”: he went to the Memorial to see a sight

of interest.      Thus, the RLUS still governs.

                                          C.

             Because we conclude the RLUS applies, Appellant Lutfi

must establish that the United States was grossly negligent in

order   to   prove   his   claim.        In     this   regard,   Appellant   Lutfi

argues the district court erred in concluding the evidence was

insufficient to permit a reasonable jury to conclude that the

United States was grossly negligent.               Again, we disagree.

             Under   Virginia     law,    gross    negligence     is   defined   as

“that degree of negligence which shows an utter disregard of

prudence amounting to complete neglect of the safety of another.

It is a heedless and palpable violation of legal duty respecting

the rights of others.            Gross negligence amounts to the absence

                                          19
of slight diligence, or the want of even scant care.”                       Frazier

v. City of Norfolk, 362 S.E.2d 688, 691 (Va. 1987) (internal

quotation marks and citations omitted).                 Though not dispositive,

“[d]eliberate conduct is important evidence on the question of

gross negligence.”       Id. at 801.

            Before turning to the facts in this case, we first

analyze Virginia’s leading cases applying this standard in the

context of the RLUS.          First, in Frazier, a plaintiff was injured

when he fell from an orchestra pit at a concert hall in Norfolk,

Virginia.     At the time of the injury, there was a gap between

the rear of the orchestra pit and the front of the stage.                       There

were no railings or other barriers to protect against this kind

of   an   incident,    and    the   absence     of   those   protective     devices

amounted    to   a   violation      of   city   code.     Moreover,       two   years

before the incident in question, a child had fallen from the

same orchestra pit even when protective barriers had been in

place.

            Despite this evidence, the Supreme Court of Virginia

concluded    the     city’s    actions    constituted,       at   most,    ordinary

negligence.      Frazier, 362 S.E.2d at 691 (“Such acts of omission

do not rise to that degree of egregious conduct which can be

classified as a heedless, palpable violation of rights showing

an utter disregard of prudence.”); see also City of Lynchburg v.

Brown, 613 S.E.2d 407 (Va. 2005) (concluding that the failure to

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correct an open and obvious hazard in a set of bleachers was not

gross negligence).

            The        Virginia     Supreme       Court   reached     the   opposite

conclusion in Chapman v. City of Virginia Beach, 475 S.E.2d 798

(1996).     In Chapman, a child died after becoming entrapped in a

swinging gate made of metal bars.                    The evidence in that case

demonstrated the gate had been broken for several months prior

to the incident.          The evidence also showed that city employees

had been notified at least three times of this defect, but that

the city had made a deliberate decision not to correct it until

the peak tourist season had concluded.                     On this evidence, the

Supreme Court concluded, “reasonable persons could differ upon

whether the cumulative effect of these circumstances constitutes

a form of recklessness or a total disregard of all precautions,

an absence of diligence, or lack of even slight care[,]” and

reversed the trial court’s grant of summary judgment in favor of

the city.    Chapman, 475 S.E.2d at 801.

            Appellant       Lutfi     argues      that    this    case   bears    more

resemblance       to     Chapman     than     Frazier     and,    accordingly,     the

district    court       should     have     submitted     the    question   of   gross

negligence to a jury.             In making this argument, Appellant Lutfi

cites the following facts: although the United States contracted

with   several         independent    parties       for    the    construction     and

maintenance of the Memorial, all parties agree the United States

                                             21
retained exclusive control over the lighting in the Memorial’s

parking lot.         See J.A. 716.       According to the declaration of

Steven Carter, the building manager at the Memorial, he would

have     been    immediately   notified        if   the    illumination      in    the

Memorial parking lot was low.             See id.          Similarly, Mr. Carter

asserts that, had he been so notified, he would have placed a

service call to have the defective lighting repaired.                     Once such

a call was placed, Mr. Carter avers that it would have been

documented in a computerized maintenance management system known

as   “Maximo.”        According     to   Mr.    Carter,      the    Maximo    system

contains a record of a service call to replace some of the

lights in the Memorial parking lot on October 27, 2006.                            Mr.

Carter    further     testifies,     however,       that    those    records      also

indicate that the work was completed later that same day.

             Appellant Lutfi disputes this testimony, asserting (a)

the lights were out on the evening of his accident and (b) other

evidence        in   the   Maximo    records        undermines      Mr.      Carter’s

conclusion that the lights were repaired on October 27, 2006,

namely that the relevant work order was not “closed” until March

21, 2007.       Resolving all disputes in Appellant Lutfi’s favor, we

will assume, for purposes of this appeal, that the lights were

out on October 27, 2006 and that they had not been repaired by

the time of Appellant Lutfi’s visit on November 17, 2006.



                                         22
              On these facts, it is clear that Appellant Lutfi’s

reliance on Chapman to support his claim that the United States

was grossly negligent is inapposite; rather, this case is more

akin to Frazier.          Here, unlike Chapman, there is no evidence

that the United States made a deliberate decision to ignore the

allegedly dangerous conditions that were present in the parking

lot,    nor    is     there    any    evidence       that    the     United       States

consciously disregarded these conditions.                   At most, the evidence

establishes that the United States was aware that the lights

were out in the parking lot for approximately two weeks before

the    incident     and   that       the    United    States       had    taken    some

unsuccessful      steps   to   correct       the   issue.      Though     this    might

amount to ordinary negligence, it does not amount to the sort of

“egregious conduct” or “utter disregard of prudence” necessary

to establish gross negligence under Virginia law.                        Accordingly,

the district court did not err in concluding that a reasonable

jury   could    not    find    that    the       United   States    was    liable    to

Appellant Lutfi.

                                           IV.

              For these reasons, the judgment of the district court

is

                                                                            AFFIRMED.




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