Opinion
99-CV-0269E (Sc)
March 21, 2001
Jeffrey A. Black Esq., c/o Dwyer Black, Olean, NY, Attorneys for the Plaintiff.
Monica J. Eagan, Esq., Asst. United States Attorney, Buffalo, NY, Attorneys for the Defendant.
MEMORANDUM and ORDER
Plaintiff brings this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671-2680, to recover damages related to personal injuries sustained while leaving the United States Post Office located in Bolivar, N.Y. Presently before this Court is defendant's motion for summary judgment. For the reasons that follow, such motion will be granted.
The relevant facts are not substantially in dispute and, to the extent plaintiff has not controverted material facts as set forth in defendant's Statement of Material Facts ("Statement"), such facts "will be deemed admitted." Rule 56 of this Court's Local Rules of Civil Procedure. Plaintiff went to the Post Office November 17, 1997 to pick a package for which she had received a delivery notice slip. Statement ¶¶ 2-3. Upon her arrival on or about 4:15 p.m., plaintiff parked her car in front of the building and entered the Post Office through the front door. Id. ¶ 4. The entrance to the Post Office consists of an elevated concrete platform, accessible through the use of stairs which are set off to one side. Id. ¶ 5. This platform leads to a set of glass double doors which, in turn, lead to a small vestibule followed by another set of glass double doors. Id. After passing through the latter of these doors, the lobby of the Post Office is accessed. Id. On her way into the Post Office, plaintiff did not notice any snow or ice on the upper part of the concrete platform that was immediately adjacent to the doorway and did not have any difficulty in entering the building. Id. at 7.; Nolan Dep. at 34. Further and while inside the Post Office, plaintiff did not make any complaints regarding the condition of the entranceway. Statement ¶ 8. After plaintiff had picked up her package, Postal Clerk Gloria Sluyter walked plaintiff back to the entranceway and held both sets of glass double doors open for plaintiff's egress from the building. Id. at 9. Plaintiff fell after stepping though the outer glass double doors and sustained a compression fracture to her spine. Id. at 10, 13. It should also be noted that, approximately two hours prior to plaintiff's fall, Sluyter had used the same front entrance to collect mail from a curbside mailbox and that, at that time, Sluyter had not noticed any dangerous condition existing where plaintiff later fell and did not shovel or apply any icefighting agents there. Id. at 6. The parties are also in relative agreement that, if any precipitation fell that day in Bolivar, such was insignificant. Reed Aff.; Reply Mem. of Law at 3, n. 3. There is evidence in the record, however, that snow removal had occurred that morning at 7:30 a.m. for the area in question and "Ice Fighter" had been applied. Houston Dep. at 31-35; Black Aff. Ex. J.
Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment may be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the `evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.'" Rowe v. Wal-Mart Stores, Inc., 11 F. Supp.2d 265, 266 (W.D.N.Y 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). A genuine issue of material fact exists if the evidence in the record would allow a reasonable jury to return thereupon a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Evidence of the non-movant is to be believed and all justifiable inferences are resolved in her favor. Id. at 255. The existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient, however, as there must be evidence on which the jury could reasonably find for her. Id. at 252. Similarly, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
"The FTCA allows plaintiffs to recover damages for an injury caused by the negligence of government employees acting within the scope of their employment." Taylor v. United States, 121 F.3d 86, 89 (2d Cir. 1997). "The liability of the federal government under the FTCA is generally determined by state law." Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996). The parties are not disputing that New York law applies and, in any event and inasmuch as the alleged negligent acts of defendant occurred in New York, the undersigned must apply New York law.
In a negligence action, a plaintiff must generally establish that the defendant owed the plaintiff a cognizable duty of care, that the defendant breached such duty and that the plaintiff suffered damage as a proximate result of the breach. See Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985). As the operator of the Post Office, defendant had a duty to maintain such premises in a reasonably safe condition. See Basso v. Miller, 40 N.Y.2d 233, 241 (1976). To establish a prima facie case of negligence in a "slip and fall" action, plaintiff must demonstrate either that defendant created the condition which caused the accident or that defendant had actual or constructive notice of such condition and failed to remedy the same. Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 (1986). Inasmuch as there is absolutely no proof in the record that defendant had actual notice of any unsafe condition, the undersigned will not consider the issue of actual notice vel non.
The defendant argues that "plaintiff cannot prove the existence of a dangerous condition which imposed a duty of remedy or warning upon the defendant." Defendant's Mem. of Law at 6. Insofar as such assertion traverses plaintiff's allegation that defendant created the dangerous condition which caused plaintiff to fall, the undersigned agrees. Assuming that such condition existed, plaintiff can point to no evidentiary proof which implicates any act of defendant in the creation of such hazard. The mere incantation that defendant utilized "insufficient snow and ice removal procedures" which created the dangerous condition creates no genuine issues of material fact where there is nothing in the record which supports such an assertion. Consequently, plaintiff's claim that defendant created the hazardous condition which ultimately led to her injury fails.
The defendant also argues that, assuming a dangerous condition existed, "plaintiff cannot show that the defendant ***, in the exercise of reasonable care, should have known that the condition existed and nonetheless failed to exercise due care to correct the situation ***." Id. at 9. The undersigned agrees. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Gordon, at 837. "This requires the plaintiff to present proof of the length of time the condition existed prior to the alleged fall." Quarles v. Columbia Sussex Corp., 997 F. Supp. 327, 332 (E.D.N.Y 1998) (citing Gordon, at 837). A general awareness that some dangerous condition might be present is insufficient to constitute constructive notice. Gordon, at 838. Plaintiff must proffer "evidence establishing constructive notice of the particular condition that caused [her] fall," and this she fails to do. Id. (emphasis added). Plaintiff has simply not produced any evidentiary proof in admissible form that the hazardous condition had been on the ground for any appreciable length of time prior to her fall such that defendant's employees should have been, in the exercise of due care, able to discover the condition and remedy it. Moreover and as set forth in the undisputed facts above, the record does not permit for any inference to be drawn that defendant had reason to believe that dangerous accumulations of ice or snow could have been present in the specific area where plaintiff fell. Consequently and because there are no evidentiary facts from which constructive notice may be inferred, plaintiff's FTCA action fails.
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and that this case shall be closed.