CIVIL ACTION No. 06-277, SECTION: I/2.
March 12, 2007
ORDER AND REASONS
The matter before the Court is a motion, filed on behalf of defendant, the United States, seeking dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure or, in the alternative, summary judgment according to Rule 56(c). Plaintiff, Elaine Charles, opposes the motion. For the following reasons, defendant's motion is GRANTED.
BACKGROUNDOn September 14, 2002, plaintiff fell while descending steps at the U.S. Post Office in Houma, Louisiana. Plaintiff alleges that she fell due to the condition of the steps and lack of handrails, and that she has suffered injuries and damages as a result. Plaintiff filed an administrative claim with the General Services Administration on September 1, 2004. Receiving no decision with respect to her administrative claim, plaintiff filed the present claim on January 24, 2006, pursuant to the Federal Tort Claims Act ("FTCA"), against the U.S. Postal Service and the United States. On April 3, 2006, plaintiff filed an amended complaint, adding the Government Services Administration ("GSA") as a defendant. On February 16, 2007, defendant timely filed its motion to dismiss for lack of jurisdiction or, in the alternative, for summary judgment.
The United States argues that plaintiff alleges premises liability which is unavailable through the FTCA and, alternatively, that plaintiff has failed to present a genuine issue of material fact with respect to any duty the United States may have owed the plaintiff. Plaintiff responds that (1) her claims are based on the negligence of Paul A. Heitman, GSA's property manager, and Lance Duplantis, the on-site contract representative; (2) her claim is for negligence, not premises liability; and (3) a genuine issue of material fact does exist with respect to the negligence of those individuals and whether the steps created an unreasonable risk of harm.
Rec. Doc. 11.
LAW AND ANALYSISI. Standards of Law A. Motion to Dismiss for Lack of Jurisdiction
A motion to dismiss filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure "allow[s] a party to challenge the subject matter jurisdiction of the district court to hear a case." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Such a motion may be decided by the court on one of three bases: (1) the complaint alone; (2) the complaint and the undisputed facts in the record; or (3) the complaint, the undisputed facts in the record, and the court's own resolution of disputed facts. Ynclan v. Dep't of the Air Force, 943 F.2d 1388, 1390 (5th Cir. 1991) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). In a Rule 12(b)(1) motion, the burden of proving that jurisdiction does exist falls to the party asserting jurisdiction. Ramming, 281 F.3d at 161. The motion to dismiss should only be granted "if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Id. (citation omitted). Since this Court is "under a mandatory duty to dismiss a suit over which it has no jurisdiction," the Court must consider the Rule 12(b)(1) motion prior to reaching any ruling on the merits pursuant to Rule 56. See Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1157 (5th Cir. 1981).
B. Motion for Summary Judgment
Summary judgment is proper when, after reviewing the "pleadings, depositions, answers to interrogatories . . . [and] affidavits," the court determines that there is no issue of material fact. Fed.R.Civ.P. 56(c). The party seeking summary judgment always bears the initial responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 266 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986) (internal quotation omitted).
Once the party seeking the summary judgment carries its burden pursuant to Rule 56(c), the other party must come forward with specific facts showing that there is a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The showing of a genuine issue is not satisfied by creating some metaphysical doubt as to the material facts by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (internal citations omitted). Instead, a genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The non-moving party's evidence, however, "is to be believed, and all justifiable inferences are to be drawn in [that party's] favor." Hunt v. Cromartie, 526 U.S. 541, 552, 119 S. Ct. 1545, 1551-52, 143 L. Ed. 2d 731 (1999) (internal quotation and citation omitted) (alternation in original).
In a nonjury case, the Fifth Circuit has suggested, but not explicitly adopted, a "more lenient standard for summary judgment." U.S. Fid. Guar. Co. v. Plantars Bank Trust Co., 77 F.3d 863, 865 (5th Cir. 1996), cited by Ill. Cent. R.R. Co. v. Mayeux, 301 F.3d 359, 362 (5th Cir. 2002). The Circuit Court has stated that "where the judge is the trier of fact . . . he may be in a position to draw inferences without resort to the expense of trial, unless there is an issue of witness credibility." Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 273 n. 15 (5th Cir. 1987) (quoting Ala. Farm Bureau Mut. Cas. Co. v. Am. Fid. Life Ins. Co., 606 F.2d 602, 609-10 (5th Cir. 1979)).
II. General Premises Liability
The United States argues that plaintiff's claims are general premises liability claims that are not permitted by the FTCA. The FTCA provides a remedy "for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). This remedy does not, however, open the United States to liability based on strict liability. Aretz v. United States, 604 F.2d 417, 427 (5th Cir. 1979) (citing Laird v. Nelms, 406 U.S. 797 (1972)). Though not specifically addressed by the Fifth Circuit, other district courts have interpreted this bar as similarly precluding general premises liability. See, e.g., Perkins v. United States, No. 98-2636, 1999 WL 148442, at *2 (E.D. La. Mar. 17, 1999) (Sear, J.) ("[A]lthough the Fifth Circuit has not addressed the issue . . . I agree . . . that the FTCA does not permit suits for general premises liability to the extent that such theories resemble strict liability. . . ."); Culpit v. United States, 964 F. Supp. 1104, 1112 (W.D. La. 1997) (finding that "this is not an issue that has been defined by the Fifth Circuit" and dismissing plaintiff's claims against the United States "to the extent that they are founded on general state law premises liability" but not to the extent that they are based on the negligence of specific government employees). This Court agrees with the reasoning of these opinions and, likewise, holds that the FTCA does not permit claims alleging premises liability, but does permit claims of negligence where specific government employees are alleged to be negligent. See Culpit, 964 F. Supp. at 1112.
Rec. Doc. 9, p. 2-3.
This Court previously stated this holding regarding the FTCA, albeit with less precise language than that adopted here today, in Graubarth v. United States, No. 05-892, 2005 WL 3543763, at *3 (E.D. La. Oct. 4, 2005).
Plaintiff's complaint makes no mention of any specific federal employees who may have negligently caused the injuries alleged. In her amended complaint, plaintiff merely alleges negligence "on the part of Defendants, their agents, servants, and employees." In her later response to the instant motion of the United States, plaintiff now asserts that Paul A. Heitman, GSA's property manager, and Lance Duplantis, the on-site contract representative, are federal employees against whom plaintiff's claims may be targeted pursuant to the FTCA.
Rec. Doc. No. 3, p. 3.
Plaintiff, however, has made no allegations against these individuals in her complaint and she has not created an allegation of negligence sufficient to meet the strictures of the FTCA. See, e.g., Perkins, 1999 WL 148442, at *2 (determining that "the substance of the claim remains one of premises liability" where "neither the original nor the amended complaint allege that specific individuals were negligent in any specific manner"). Since plaintiff's complaint fails to allege negligence on the part of any specific federal employees for any specific acts of negligence, her claim is one for premises liability and, therefore, she cannot sustain her FTCA action. Accordingly, dismissal for lack of subject matter jurisdiction is appropriate.
III. Motion for Summary Judgment
Alternatively, even assuming that plaintiff has properly stated a claim for negligence pursuant to the FTCA, as opposed to general premises liability, the claim still fails because plaintiff has not established defendant's negligence or presented a disputed issue of material fact that would bar summary judgment. For purposes of the FTCA, any liability of the United States will be determined by the "law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Louisiana courts apply a four-factor "duty-risk" negligence analysis, considering: (1) whether the conduct was a cause-in-fact of the harm; (2) the respective duties owed by the parties; (3) whether the requisite duties were breached; and (4) whether the risk and harm caused were within the scope of protection afforded by the duty breached. Peterson v. Gibraltar S L, 733 So. 2d 1198, 1203-04 (La. 1999); see also Gardes Directional Drilling v. U.S. Turnkey Exploration Co., 98 F.3d 860, 867 (5th Cir. 1996).
"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.'" Centanni v. U.S., No. 03-627, 2004 WL 385057, at *2 (E.D. La. Feb. 27, 2004) (Engelhardt, J.) (citing Williams v. Leonard Chabert Medical Center, 744 So. 2d 206, 209 (La.Ct.App. 1st Cir. 1999), writ denied, 754 So. 2d 974 (La. 2000)); see also Varnell v. Louisiana Tech University, 709 So. 2d 890, 893 (La.Ct.App. 2d Cir. 1998) ("In a slip and fall claim based on negligence, the defendant's awareness of the dangerous condition of the premises gives rise to a duty to act.") The absence of an unreasonably dangerous condition implies the absence of a duty on the part of the defendant. Williams, 744 So. 2d at 209 (citing Oster v. Department of Transportation and Development, State of Louisiana, 582 So. 2d 1285, 1288 (La. 1991).
A determination of whether a thing presents an unreasonable risk of harm involves numerous considerations and 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 plaintiff's conduct at the time of the accident. Id. Additionally, in a trip and fall case, the duty is not solely with the landowner. Williams v. Leonard Chabert Medical Center, 744 So.2d 206, 211 (La.Ct.App. 1st Cir. 1999). A pedestrian has a duty to see that which should be seen and is bound to observe his course to see if his pathway is clear. Id.
Although it is unclear what plaintiff believes was the definitive cause of her fall, plaintiff has generally alleged negligence due to the condition of the steps and the lack of handrails. In her deposition, plaintiff stated that as she came down the last step, "[S]omething in that groove made me fall." She also stated that it was a beautiful day and that the area was not slippery. Photographs of the area where the plaintiff fell indicate that there are four brick steps between the ground level and elevated walkway of the post office. The grooves and mortar between those bricks, as well as between the bricks on the ground level, are readily apparent to the naked eye. Additionally, there are walls and/or posts on either side of the steps that could provide support to someone climbing on the steps. There is also a handicap ramp immediately adjacent to the steps that provides an alternate access route.
As defendant argues, plaintiff has asserted multiple theories regarding the precise cause of her fall, ranging from uneven pavement to non-skid material on the steps to the lack of handrails. Rec. Doc. No. 17-2, p. 11. Still, at their core, and as stated in plaintiff's complaint, plaintiff's allegations center on the condition of the steps and the lack of handrails.
Rec. Doc. No. 17-6, p. 3.
Rec. Doc. No. 17-6, p. 6.
Rec. Doc. No. 17-6, pp. 5-6.
Rec. Doc. No. 17, Exhibit F. As detailed in the Court's Minute Entry of March 7, 2007, the parties agree that the photographs in Exhibit F are a fair and accurate portrayal of the scene of the accident. Rec. Doc. No. 29.
Under Louisiana law, surfaces of sidewalks and step surfaces "are not required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet." Reed v. Wal-Mart Stores, Inc., 708 So.2d 362, 363 (La. 1998). There is also no general requirement under Louisiana negligence law that stairs have handrails. See generally Southeastern Fidelity Ins. Co. v. Cashio, Cochran Associates, Inc., 505 So. 2d 141 (La. Ct. App. 4th Cir. 1987). Plaintiff admits that she has never fallen in the area before although she goes there about three times a week. Applying a risk-utility analysis, the minimal risk posed by the grooves and lack of handrails, when weighed against the cost of changing all similarly situated steps, the ease with which the public can avoid the alleged defect, and the accident history, cannot be said to render the steps unreasonably dangerous. See Perkins, 1999 WL 148442, at *2.
Rec. Doc. No. 17-6, pp. 6-7.
While plaintiff asserts that there are issues of fact as to defendant's negligence that preclude summary judgment, plaintiff has provided insufficient evidence in support of her case so as to establish a genuine issue of material fact. A party's opposition to a motion for summary judgment requires specific facts, Matsushita, 475 U.S. at 587, and the party must "articulate the precise manner in which that evidence supports his or her claim," Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
Plaintiff's vague and imprecise allegations do not create the required issue of material fact, nor does the mere citation to three other incident reports indicating falls on the steps from 1999 to 2004. These incident reports found no hazard or defect with the steps and provide no indication of what actually caused those three other individuals to fall. Plaintiff also offers no expert testimony or citation to any law or regulation that would require handrails on these steps.
Rec. Doc. No. 21-7, pp. 2-8. The incident reports, dated October 28, 1999, April 27, 2004, and April 29, 2004, state generally that someone fell on the stairs, but do not identify any potential problems on the stairs that caused the individuals to fall. In all the reports, Lance Duplantis indicates that he checked the steps and found nothing wrong. Id. at pp. 5-8.
In view of all these factors and the evidence presented, the Court finds that no reasonable fact-finder could find that the steps presented an unreasonably dangerous condition. Therefore, as a matter of law, defendant had no duty to act to remedy the condition of the steps on which a negligence claim can be based and summary judgment is appropriate.
Rec. Doc. No. 17.