## Facts

- In December 1993, Giovanna and Daniele Cestonaro (Italian citizens) vacationed in St. Croix, U.S. Virgin Islands.
- On December 28, 1993, the family parked at night in an unofficial, long-used parking area on Hospital Street within the Christiansted National Historic Site, owned and controlled by the National Park Service (NPS).
- The area was not marked as an official parking lot; it lacked signs, paving, and striping, but the public had used it for parking since the 1940s.
- When the family returned to their car after dinner, two armed men confronted them; Daniele Cestonaro was shot and died.
- The NPS knew of prior crimes in the area from police reports, ranger information, and complaints from local business owners about safety.
- The NPS did not deter nighttime parking or warn users (no prohibition signs, danger warnings, or ticketing), and it maintained lighting in the area, including five installed lights.
- The plaintiff alleged the United States was negligent under the Federal Tort Claims Act (FTCA) for failing to provide adequate lighting, warnings, and other safety measures despite known criminal activity.

## Issues

1. Whether the alleged failures regarding lighting, warnings, and safety measures were barred by the FTCA’s discretionary function exception, 28 U.S.C. § 2680(a).
2. Whether the government showed that the challenged conduct was the type of judgment grounded in social, economic, or political policy required to trigger the discretionary function exception.

## Decision

- The Third Circuit reversed the district court’s dismissal for lack of subject-matter jurisdiction.
- The court held the government failed to show that the specific omissions about lighting and warnings were policy-based judgments protected by the discretionary function exception.
- The case was remanded for further proceedings on the merits of the FTCA negligence claim.

## Legal Principles

- The FTCA waives sovereign immunity for certain torts, but § 2680(a) preserves immunity for claims based on discretionary functions.
- Under the Berkovitz/Gaubert framework: (1) the conduct must involve judgment or choice, and (2) the judgment must be of the kind the exception protects—i.e., grounded in social, economic, or political policy.
- Even if an agency has discretion in general, the discretionary function exception applies only when the challenged conduct is susceptible to policy analysis tied to legitimate governmental objectives.
- Routine property-management and safety measures may fall outside the exception when the government cannot connect the specific decision (or nondecision) to protected policy considerations.

## Conclusion

The Third Circuit allowed the wrongful-death suit to proceed because the United States did not establish that NPS’s choices about the level of lighting and the absence of warnings in a known high-crime parking area reflected protected policy judgments rather than ordinary operational negligence.


Cestonaro v. United States, 211 F.3d 749 (3d Cir. 2000)