Opinion
Civil Action No. 01-10540-RWZ.
February 10, 2006
MEMORANDUM OF DECISION
On August 25, 1998, plaintiff's decedent, Raymond Hersey, was killed in a bicycle accident, when he rode a bicycle off the sidewalk in front of a United States Post Office in Holbrook, Massachusetts, and collided with a truck emerging from the side of that building. The complaint asserts four tort claims, and defendant now moves for summary judgment on all counts on two grounds — lack of proximate causation and sovereign immunity. Summary judgment may be granted where there "is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue exists when a reasonable jury, drawing inferences in favor of the nonmovant, could find in the nonmovant's favor. See Smith v. F.W. Morse Co., 76 F.3d 413, 428 (1st Cir. 1996). A material fact is one with "the potential to alter the outcome of the suit." Id. The record is construed in the light most favorable to the nonmovant, and all inferences are drawn in the nonmovant's favor. Id.
I. Proximate Cause
Under the Federal Tort Claims Act ("FTCA"), the tort law of Massachusetts determines plaintiff's claims. See 28 U.S.C. § 1346(b)(1). To make out a prima facie case of negligence in Massachusetts, plaintiff must show (1) a legal duty owed by defendant to plaintiff, (2) a breach of that duty, (3) proximate or legal cause, and (4) actual damage or injury. Jorgensen v. Mass. Port Auth., 905 F.2d 515, 522 (1st Cir. 1990). But, in the context of the motion before me, only the third requirement is in issue. "Under Massachusetts law, proximate cause requires a showing . . . first, that the loss was a foreseeable consequence of the defendant's negligence, second, that the defendant's negligence was a but-for cause of the loss, and third, that the defendant's negligence was a substantial factor in bringing about the loss." Id. at 522-23. Massachusetts courts have held that "a tortfeasor is liable for the foreseeable intervening conduct of a third party whether that conduct is negligent or not."Solimene v. B. Grauel Co., 399 Mass. 790, 796 (1987). "Where, however, the intervening event was of a type so extraordinary that it could not reasonably have been foreseen, that new event is deemed to be the proximate cause of the injury and relieves a defendant of liability. Delaney v. Reynolds, 63 Mass. App. Ct. 239, 242 (2005). Questions of causation — proximate and intervening — are normally matters for the jury. See, e.g., Solimene v. B. Grauel Co., 399 Mass. 790, 794 (1987); Lane v. Atlantic Works, 111 Mass. 136, 140 (1872).
Defendant's sole argument is that, even assuming arguendo that defendant's conduct was negligent, Raymond's intervening conduct was "unforeseeable as a matter of law," thereby breaking the chain of causation. (Def.'s Mem. in Supp. of Mot. for Summ. J. 13). First, defendant argues that Hersey's riding a bicycle on the sidewalk was itself unforeseeable. In support of this contention, defendant cites (1) M.G.L. c. 85, § 11B, which permits bicycle-riding on sidewalks only "outside commercial districts"; (2) the Town of Holbrook's Bylaws, § 3-2, which prohibits unnecessary bicycle-riding on sidewalks; and (3) the affidavit of Richard M. Curry, the Holbrook Post Office postmaster, stating that he had "never seen children riding bicycles on the sidewalk . . . before or after the accident." (Def.'s Loc. R. 56.1 Statement, Ex. 4, at 2).
Defendant concedes that whether or not Hersey violated M.G.L. c. 85, § 11B or Holbrook's bylaws does not govern liability, but asserts that the rules are "illuminating with respect to foreseeability," in that they indicate that "bicyclists are unexpected on sidewalks in commercial districts." (Def.'s Mem. in Supp. of Mot. for Summ. J. 13). This argument is unpersuasive. Defendant has presented no evidence that these laws were regularly enforced. Furthermore, while Curry's affidavit states that he never saw children bicycling on the sidewalk in front of the post office, the record contains other evidence that children regularly rode bicycles on the sidewalk and ramp. (Pl.'s Loc. R. 56.1 Statement, Ex. 6, at 1; Ex. 7, at 25, 26, 31). Accordingly, whether or not it was unforeseeable for children to be riding bicycles on the sidewalk in front of the post office remains a disputed fact.
Defendant also claims that Hersey's behavior was unforeseeable because he was riding at high speeds and the bicycle's rear brakes had previously been disabled. If true, these facts suggest that Hersey's conduct may have been unusual, but whether his conduct was "so extraordinary that it could not reasonably have been foreseen" is unclear. Delaney, 63 Mass. App. Ct. at 242. Whether or not it is "extraordinary" for children who are riding bicycles to ride them at high speed is a question of fact for the jury; that Hersey and his friend were riding fast does not render their conduct unforeseeable as a matter of law. Similarly, it was unquestionably unwise and dangerous for Hersey to operate a bicycle without fully functional rear brakes, but conduct that is unwise is not necessarily unforeseeable. In Jesionek v. Massachusetts Port Authority, 376 Mass. 101, 106 (1978), the defendant left a forklift unsecured with the keys in the ignition. The Supreme Judicial Court found that it was reasonably foreseeable that inebriated seamen, who had access to and were known to frequent the area, would operate the forklift without authorization. Id. Under Jesionek, it would be inappropriate to find, as a matter of law, that it was unforeseeable that a child would be riding a bicycle with disabled rear brakes at a higher than normal speed. Summary judgment on the issue of proximate causation is denied.
II. Sovereign Immunity
It is well established that the United States is immune from suit unless it has expressly consented to be sued. See United States v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA waives sovereign immunity for tort suits, subject to a number of exceptions, including what is known as the discretionary-function exception. See 28 U.S.C. § 2680(a). Under that exception, sovereign immunity is not waived for any claim based upon "the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."Id. Defendant contends that because the design and renovation of the loading dock was a discretionary function, sovereign immunity bars plaintiff's claims.
Whether or not certain conduct falls within the discretionary-function exception depends on two determinations. First, I must judge whether the conduct was discretionary, that is, whether it was "a matter of choice for the acting employee."Bolduc v. United States, 402 F.3d 50, 60 (1st Cir. 2005) (internal quotation marks omitted). Any conduct required by federal statute, regulation, or policy is not considered discretionary. Id. Second, if the conduct was discretionary, I must then determine whether it was "susceptible to policy-related judgments," that is, whether it involved "an unrestrained balancing of incommensurable values, including a differential allocation of resources among various political objectives."Id. (internal quotation marks omitted). The scope of this second question is hotly disputed. Because almost every decision could be said to involve the balancing of values and the allocation of resources, "a broad construction . . . could almost completely nullify the goal of the Act." Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997). Thus, the Supreme Court has clarified that the purpose of the exception is to "protect only governmental actions and decisions based on consideration of public policy." Berkovitz v. United States, 486 U.S. 531, 537 (1988). Only if I find that the conduct was both discretionary and involved a policy-related judgment does it fall within the exception. Id.
The decision to redesign and renovate the Holbrook post office loading dock was clearly a discretionary one. No specific regulations or policies required that the dock be reengineered. The real question is whether the decision involved policy-related judgments. In other words, was it a policy-related judgment for defendant to reorient the loading dock, such that it ran parallel to the building, rather than away from the building in a perpendicular direction? And was it a policy-related judgment for defendant to do so without changing in any way the sidewalk, barriers, warnings, or visual aids to pedestrians or truck drivers?
Defendant claims that the decision was policy-driven in the sense that Kenneth Dyer, the acting postmaster, "balanced the various values of efficiency in loading and unloading mail from different sized trucks, use of USPS personnel resources, and the safety of those in the parking lot." (Def.'s Mem. in Supp. of Mot. for Summ. J. 16-17). Specifically, defendant claims that in deciding to redesign the loading dock, Dyer considered (1) the inefficiencies wrought by the previous design, which caused difficulty both for the truck drivers and for the personnel who had to spend extra time loading and unloading mail; (2) the lack of space at the post office; (3) the exposure of mail to inclement weather occasioned by the original loading dock configuration; and (4) the safety of those on the sidewalk or in the parking lot.
It is difficult to characterize the design and renovation of the loading dock as a policy-related judgment. To the extent that the redesign was intended to keep the mail dry and increase the efficiency of both the drivers and the office personnel, the changes made to the loading dock might be broadly construed as implicating the mission of the United States Postal Service, which is presumably to deliver mail as quickly, cheaply, and safely as possible. But the redesign is more accurately viewed as a technical administrative change than a policy-oriented one. In Gotha v. United States, the Navy claimed that its failure to install stairs and lighting at its facility involved policy-related judgments of national security and safety, but the Third Circuit concluded that the minor improvements required for constructing a stairway and providing lighting were "rather a mundane, administrative, garden-variety, housekeeping problem." 115 F.3d at 181. In this case, the decision to reorient the loading dock was, like the Navy's decision not to install a stairway and lights, a housekeeping decision. As the Postal Service's Facilities Specialist testified, the renovation was a "pretty straightforward project," that "just enclos[ed] the existing loading dock." (Pl.'s Loc. R. 56.1 Statement, Ex. 5, at 103).
Moreover, even if the decisions to redesign and reorient the loading dock is viewed as falling within the exception, the decision not to modify the parking lot, not to install visual aids (such as mirrors for trucks approaching the corner of the building), and not to post warnings to pedestrians, cannot be characterized as involving policy-related judgments. The discretionary-function exception has generally been held inapplicable to conduct "which can be judged by general standards of reasonableness without requiring courts to pass upon policy justifications." Gonzalez v. United States, 690 F. Supp. 251, 254 (S.D.N.Y. 1988). Claims of an "inherently dangerous design," such as the claims here, "turn on just such objective criteria." Id.
With regard to defendant's alleged failure to take safety precautions, it is useful to understand the configuration of the dock and building. The renovated loading dock was recessed from the front of the building and had a door that faced forward. Thus, trucks would exit the dock driving parallel to the left side of the building, from the perspective of one facing the building. There were a number of parking spots along the left side of the building. If cars were parked in these spaces, the truck would be unable to drive straight forward out of the dock, and would have to veer to the right, from the perspective of the truck driver. When no cars were parked in the lot, as was the case at the time of the accident, trucks could drive straight forward over the marked parking spaces, alongside the building.
Defendants cite Ayers v. United States, 902 F.2d 1038 (1st Cir. 1990), in which the court found that the Air Force's decision not to include safety railings or make other configurational changes at its launch control facilities fell within § 2680(a). Ayers is not helpful here, since no comparable policy considerations can explain defendant's decision not to install safety warnings or other precautions. Indeed, defendant has offered no explanation as to why it designed the dock in a way that invited truck-drivers to drive alongside the building, without making associated changes in the layout and safety of the parking lot. Nor is defendant aided by Shansky v. United States, 164 F.3d 688, 693 (1st Cir. 1999), in which the discretionary-function exception was found to apply to the Park Service's decision not to install guardrails due to aesthetic considerations. Again, no policy judgments associated with the Post Office's mission appear to have motivated defendant not to take safety measures. Cf. Boyd v. United States, 881 F.2d 895, 897-98 (10th Cir. 1989) (although failure to zone a lake for swimming was discretionary, failure to install warning signs or safety designs at the lake was not discretionary).
Because the decision to reorient and enclose the loading dock without installing warnings or taking other safety precautions was not a decision susceptible to policy judgments, the discretionary-function exception does not apply. Summary judgment on the basis of sovereign immunity is therefore denied.
III. Conclusion
Defendant's motion for summary judgment (#31 on the docket) is denied. Defendant's unopposed motion for extension of time (#45) is allowed. Defendant's motion to deem facts admitted (#47) is denied. Plaintiff's motion to strike defendant's statement of facts (#50) is denied.