Opinion
CIVIL ACTION NO. 01-3553 SECTION "N"
March 25, 2003
ORDER AND REASONS
Before the Court is a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, filed by United States. For the reasons that follow, the motion is GRANTED.
I. BACKGROUND
Plaintiff, Margaret Deni Ard Rigdon, allegedly sustained injuries when she fell outside the Post Office in Husser, Louisiana on March 9, 1999. Upon leaving the post office, plaintiff fell as she stepped down from the sidewalk into the parking lot. On November 5, 1999, she filed an administrative claim with the Postal Service, which was denied on November 28, 2001. Plaintiff and her ex-husband promptly filed suit under the Federal Tort Claims Act ("FTCA"), alleging that the United States Postal Service had been negligent in that it had failed to maintain a safe premises and failed to inspect, correct, and/or warn about a dangerous and defective condition. This Court, by Order of Judge Porteous, dismissed Mr. Rigdon's claims for failing to exhaust administrative remedies.
II. LAW AND ANALYSIS
The United States now moves to dismiss Ms. Rigdon's claims on grounds that she cannot establish a genuine issue of fact as to negligence on the part of any government employee, as required under the FTCA.
A. Rule 12(b)(1) Motion:
Normally, when a Rule 12(b)(1) motion is filed in conjunction with a motion for summary judgment in the alternative, the Court first decides the question of subject matter jurisdiction before considering the substantive arguments of the summary judgement motion. Cupit v. United States, 964 F. Supp. 1104, 1106 (W.D. La. 1997). However, where the jurisdictional facts are "intertwined with the merits," the motion to dismiss is treated as an attack on the merits. Clark v. Tarrant County, Texas, 798 F.2d 736, 741-42 (5th Cir. 1986). Here, the FTCA provides both the jurisdictional predicate and the substantive cause of action. See Bennet v. United States, 2001 WL 417798, 3 (E.D. La. April 20, 2001). Moreover, both sides have submitted materials outside the pleadings. Accordingly, the Court will apply the standards applicable to summary judgment motions.
B. Summary Judgment Standard:
"Summary judgment is proper `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.'" Kee v. City of Rowlett, Texas, 247 F.3d 206, 210 (5th Cir.), (quoting Celotex Corp. v. Catret, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c))), cert. denied, 122 S.Ct. 210 (2001). "The moving party bears the burden of showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 210. If the moving party meets this burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party." Id. (internal quotations omitted). "The substantive law determines which facts are material." Id. at 211.
C. Federal Tort Claims Act (FTCA):
The United States is immune from suit, except to the extent it has waived its sovereign immunity. FDIC v. Meyers, 510 U.S. 471, 477 (1994). The FTCA is a limited waiver of this sovereign immunity, allowing suits "for damages `caused by the negligent or wrongful act or omission of any employee of the Government. . . .'" Aretz v. United States, 604 F.2d 417, 426 (5th Cir. 1979) (quoting 28 U.S.C. § 1346 (b)). This waiver requires the Court to focus on the specific "actor whose negligence might be imputed to the government under state law." Berkman v. United States, 957 F.2d 108, 113 (4th Cir. 1992). Thus, it does not "does not include suits for general premises liability." Cupit v. United States, 964 F. Supp. 1104 (W.D. La. 1997); see also Perkins v. United States, 1999 WL 148442 (E.D. La. March 17, 1999) ("FTCA does not permit suits for general premises liability to the extent that such theories resemble strict liability as opposed to `a more focused approach that requires the courts to [consider] . . . the actor whose negligence might be imputed to the government under state law.'").
Plaintiff insists that her suit is based upon negligence on the part of the Post Master, not strict premises liability. The United States argues that it is nevertheless entitled to summary judgment because plaintiff cannot establish each element of a negligence cause of action under Louisiana law. The Court agrees.
D. Negligence Under Louisiana Law:
To prevail in a negligence action under Louisiana law, a plaintiff must prove that: "1) the conduct in question was the cause-in-fact of the resulting harm; 2) defendant owed a duty of care to plaintiff; 3) the requisite duty was breached by the defendant; 4) the risk of harm was within the scope of protection afforded by the duty breached." Peterson v. Gibraltar Savings Loan, 733 So.2d 1198, 1203-04 (La. 1999).
Where, as here, the alleged negligence concerns an alleged defect in a premises, the determination of whether the custodian owed a duty of care turns upon whether the condition was "unreasonably dangerous." Williams v. Leonard Chabert Medical Center, 744 So.2d 206, 209 (La.App. 1st Cir. 1999), writ denied, 754 So.2d 974 (La. 2000). The "absence of an unreasonably dangerous condition . . . implies the absence of a duty." Id. The mere "fact that a pedestrian falls does not elevate the condition of the walkway to an unreasonably dangerous defect." Id. at 211. Rather, the determination of "whether a thing presents an unreasonable risk of harm involves numerous considerations," which "cannot be applied mechanically." Id. "In addition to balancing the likelihood and magnitude of harm against the utility of the thing, the trier of fact should consider a broad range of social, economic, and moral factors including the cost to defendant of avoiding the risk and the social utility of plaintiffs conduct at the time of the accident." Id. "The lack of prior accidents is an important factor to be considered in evaluating the risk of harm." Id. at 210. Another factor is the "degree to which a danger may be observed by a potential victim." Id. at 211.
Plaintiff does not dispute that the step down was dry and free of any foreign substance at the time of her fall. The sole alleged cause of her fall is the four-inch height differential between the sidewalk and the parking lot. Plaintiff does not dispute that the edge of the sidewalk was painted yellow at the time of her fall (although she makes much of the fact that an additional coat of paint was added after her fall). Nor does she dispute that she had just stepped up onto the sidewalk in approximately the same spot (without incident) no more than two to three minutes before her fall. It is further undisputed that prior to plaintiffs fall, no one had ever slipped or fell on or near the step, and no one had ever complained about the step. In view of all of these factors, no reasonable fact-finder could find from the record evidence that the step-down constituted an unreasonably dangerous condition. Thus, the Post Master had no duty to remedy the height differential or to provide any further warning.
III. CONCLUSION
Accordingly, IT IS ORDERED that the Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, filed by United is GRANTED.