Battista v. US
| Decision Date | 31 May 1995 |
| Docket Number | No. 92 Civ. 1424 (AGS).,92 Civ. 1424 (AGS). |
| Citation | 889 F. Supp. 716 |
| Parties | Ronald BATTISTA and Arlene Battista, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Schneider, Kleinick & Weitz, P.C., New York City, for plaintiffs.
Mary Jo White, U.S. Atty. S.D.N.Y., New York City, for defendant.
Plaintiffs Ronald and Arlene Battista bring this personal injury action against the United States Government, alleging inter alia negligence and violation of New York State labor laws, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) et seq. More precisely, the action seeks to recover for economic and non-economic losses allegedly suffered by plaintiffs as a consequence of an accident involving Mr. Battista on February 13, 1991, at which time he was splicing telephone cable at a United States Post Office. This Court conducted a bench trial of this matter on November 29-30, December 1, and December 4, 1994.
The Court's findings of fact and conclusions of law are set forth below in the following manner. In the Factual Background section below, we make certain factual findings with respect to the events up to and including the accident that serves as the basis for this action. Based on these factual findings, we set forth our conclusions of law with respect to liability in the first section of the Discussion infra at 721-724. Finally, for purposes of clarity we set forth our factual findings and conclusions of law with respect to damages together in the final section of the Discussion infra at 724-729.
1. Plaintiff Arlene Battista is married to Ronald Battista.
2. Plaintiff Ronald Battista was employed by New York Telephone Company ("N.Y. Telephone" or "NYNEX") as a cable splicing technician from 1965 until September 1994. Tr. 18.1
3. As part of their duties, NYNEX cable splicing technicians install cable in buildings, backyards and manholes. NYNEX assigned Mr. Battista to install cable in Manhattan in an area bounded by 27th and 43rd Streets from Fifth Avenue to the West Side Highway. Tr. 18-19.
4. The United States Postal Service operates a postal facility located at 223 West 38th Street in Manhattan (the "Midtown Station").
5. Midtown Station contains a network of lookout galleries for the use of the postal inspectors. The galleries, which are not open to the public, are tunnels running through various areas of the post office and contain one way mirrors through which inspectors are able to observe, for law enforcement purposes, various activities at the post office. The lookout galleries are only accessible by fixed ladders located in shaftways behind locked doors in the post office. Declaration of Albert Smith ("Smith Decl.") ¶¶ 4-7.
6. On February 11, 1991, Mr. Battista commenced work splicing cable for New York Telephone at the United States Post Office, Midtown Station, 223 West 38th Street, New York, New York. Frank Russo, a cable splicing technician's helper employed by New York Telephone assisted Mr. Battista. Declaration of Ronald Battista ("Battista Decl.) at 2.
7. Mr. Battista and Mr. Russo were at the station to lay a cable next to one that Mr. Battista had laid in the mid-1980s to provide service to the entire block where the Midtown Station is located. Tr. 18-19.
8. The cable that Mr. Battista was laying was to provide feeder relief due to congestion. PX 1.
9. There were no telephone service problems at the Midtown Station before Mr. Battista and Mr. Russo were working there in February 1991 nor any service improvement after the work was finished. Declaration of Cosmo Violanti ("Violanti Decl.") ¶ 4.
10. No USPS employee instructed Mr. Battista or Mr. Russo with respect to their cable splicing work at Midtown Station.
11. On February 13, 1991, Mr. Battista determined that he and Mr. Russo required access to a postal inspector's lookout gallery located between the first floor and the basement level of Midtown Station in order to lay cable. Tr. 20.
12. Mr. Battista had a schematic diagram of the layout of the post office which indicated that the lookout gallery for which he sought access was located between the first floor and the basement level of Midtown station. PX-1.
13. Mr. Battista approached Albert Smith, the superintendent of Midtown Station, for access to the postal inspector lookout gallery. Tr. 20.
14. Mr. Smith gave Mr. Battista and Mr. Russo access to the lookout gallery from a fixed ladder located in a shaftway behind a locked door on the first floor of Midtown Station. Tr. 21; Smith Decl. ¶¶ 14-17.
15. The fixed ladder in the shaftway where Mr. Battista fell is attached to the wall of the shaftway and has handrails running along the length of the ladder. On the day of Mr. Battista's fall, the ladder was firmly attached to the wall and had no loose rungs or other defects. Smith Decl. ¶ 6; Tr. 54.
16. There was a metal chain that can extend across the shaftway in the gallery between the first floor and the basement in the Midtown Station. Smith Decl. ¶ 6.
17. The opening through which the fixed ladder continues (the "ladder shaft") to the basement level measures 27 inches by 28 inches.
18. The gallery level is six feet below the first floor and six feet above the basement. Smith Decl. 9; Tr. 25-26.
19. After opening the locked door on the first floor, and before Mr. Battista entered the lookout gallery, Mr. Smith told Mr. Battista and Mr. Russo to be careful and that they needed to get plenty of light in order to work there. Tr. 21; Smith Decl. ¶ 16. The gallery and vertical ladder way in issue had no illumination. Undisputed Fact 16. Mr. Smith testified that the Spy Gallery in question at one time had lights, but those lights burned out seven or eight years ago. He admitted, moreover, that he had failed to replace the lights even though it was his duty to do so.
20. No USPS employee or other person informed Mr. Battista or Mr. Russo that the ladder shaft continued below the gallery level to the basement. Battista Decl.; Russo Decl.
21. Cosmo Violanti, Operations Manager for the Post Office, testified on cross-examination that he was unaware of the hazard posed by the continuation of the ladder shaft from the lookout gallery to the basement. Tr. 204.
22. OSHA regulations in effect on February 13, 1991 required lighting in the ladder shaft area and the landing. 29 CFR 1910.37(q)(6); Declaration of Kathleen Hopkins ("Hopkins Decl.") These regulations also required installation of handrails, toe boards, a swinging gate, or ladder offset to protect the unwary from the ladder shaft extending into the basement. 29 CFR 1910.23; Hopkins Decl.
23. The Lookout Rules and Regulations published by the USPS, and in effect on February 13, 1991, required the presence of cleaning lights in the lookout galleries of the Midtown Station. PX 5; Hopkins Decl.
24. After giving Mr. Battista and Mr. Russo access to the lookout gallery through the first floor doorway, Mr. Smith proceeded down the fixed ladder in the shaftway behind the door to the basement of Midtown Station and opened the door from the shaftway to the basement. After he went into the basement, he left the door open one foot. Smith Decl. ¶ 19.
25. Mr. Battista and his partner each had a light stick which they used while working at Midtown station. Tr. 20.
26. Mr. Battista and his partner retrieved one light stick from a N.Y. Telephone toolbox that they kept outside of the Midtown Station before going to the lookout gallery. Tr. 22.
27. The light stick retrieved by Mr. Battista for use in the lookout gallery was approximately 2½ feet long and contained a single fluorescent bulb. The light stick had an extension cord that was 40 feet long. Tr. 22-24.
28. Mr. Battista descended the fixed ladder to the right of the doorway opening holding the light stick in his hand. Tr. 25, 46-47.
29. Mr. Battista stepped off to the side of the fixed ladder onto the floor of the lookout gallery. Tr. 28-29.
30. The light stick illuminated the area where Mr. Battista got off the ladder. Tr. 28, 54-55. The ladder shaft continuing to the basement is not, however, obvious to a person either descending or ascending the fixed ladder or standing beside the fixed ladder on the landing, even if that person is carrying a fluorescent light stick of the type used by Mr. Battista. Id.; see also, Russo Aff.; infra at 723 ().
31. Mr. Battista then held the light stick to assist Mr. Russo to safely descend the ladder. Mr. Battista watched Mr. Russo as he descended the ladder. Tr. 31-32, 341.
32. Mr. Russo stepped off to the left side of the fixed ladder where Mr. Battista was standing onto the lookout gallery floor. Tr. 32, 342.
33. Mr. Battista and Mr. Russo then walked into the lookout gallery to inspect the area in which they were to lay cable. Tr. 32-33.
34. After working for several minutes, Mr. Battista decided that Mr. Russo should leave the lookout gallery to work on the opposite side of the wall. Mr. Battista then accompanied Mr. Russo back to the ladder carrying the light stick. Tr. 56.
35. Mr. Battista held the light stick to provide light for Mr. Russo to proceed safely up the ladder. Mr. Battista observed Mr. Russo pull himself onto the ladder from the left and climb up. Mr. Battista remained at the edge of the gallery by the ladder with the light stick for 10-15 seconds. Tr. 33-34, 60, 345.
36. After assisting Mr. Russo, Mr. Battista proceeded back to the area where he and Mr. Russo were working to continue the cable splicing work for approximately 20 minutes. Tr. 35.
37. After completing his work in the gallery, Mr. Battista walked to the fixed ladder to exit the lookout gallery carrying the light stick in one hand and a hammer and screw-driver in his other hand Tr. 63.
38. No safety chain, ladder offset, or other...
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