Blaine v. United States, Civ. A. No. 1234.

• Decision Date: 03 August 1951
• Docket Number: Civ. A. No. 1234.
• Citation: 102 F. Supp. 161
• Parties: BLAINE v. UNITED STATES.
• Court: U.S. District Court — Eastern District of Tennessee

102 F. Supp. 161

BLAINE v. UNITED STATES.

Civ. A. No. 1234.

United States District Court E. D. Tennessee, N. D.

August 3, 1951.

COPYRIGHT MATERIAL OMITTED

Chas. H. Davis, Knoxville, Tenn., for plaintiff.

Otto T. Ault, U. S. Dist. Atty., Ferdinand Powell, Jr., Asst. U. S. Dist. Atty., Knoxville, Tenn., for defendant.

ROBERT L. TAYLOR, District Judge.

This is an action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and § 2671, for personal injury caused when plaintiff caught her foot on a fault in a sidewalk alongside the United States Post Office building in Knoxville, Tennessee, and sustained a broken arm in the resultant fall. The fault had occurred as a result of the subsidence of one slab in the sectioned concrete to a depth of approximately three-fourths of an inch below the level of one of the adjacent slabs. The accident occurred on January 15, 1949, plaintiff at the time being on her way to transact business at the postal savings window of the post office.

The Court, having personally examined the sidewalk, finds that the fault exists and that it is fairly represented in the two photographs filed as exhibits in the record. At first glance, a person would not likely pay much attention to the fault, but upon close examination would come to the conclusion that a woman of the age and physical and mental infirmities of plaintiff would likely run into trouble in passing over it, if perchance she placed one of her feet in the most dangerous portion, as was apparently done by plaintiff in the instant case.

Although proof on the subject is scanty, such as there is has not been rebutted, and for the purposes of this litigation it establishes ownership of the sidewalk by the defendant. In its answer, defendant admits that the Knoxville postmaster is custodian of the post office property, and the postmaster has testified that he has assigned no one to inspect the sidewalk or look after the same, but that he occasionally has looked over the sidewalk himself. Another witness for the defendant testified that employees of the post office have kept the sidewalk swept.

The answer of the defendant also contains the following: "Defendant alleges that in or about the year 1932, the defendant purchased or otherwise acquired the tract of land bounded on the east by Walnut Street, on the south by Main Street, on the west by Locust Street, and on the north by Cumberland Avenue * * * for the construction and erection thereon of the United States Post Office and Court House Building and for use as such, that thereafter the defendant laid out and built a United States Post Office and Court House Building on said lands and also laid out and built a good, substantial, well-constructed and proper sidewalk on the west side of Walnut Street in the block between Cumberland Avenue and Main Street; that thereafter in or about the year 1934, the defendant caused said building and lands to be occupied as a United States Post Office and Court House and at the same time threw open to and made available to the public said sidewalk for the use and convenience of the general public * * *."

From the pleadings and the small amount of available proof, the Court concludes and holds that the sidewalk where the accident occurred is a part of the post office property and included within the custodianship of the postmaster who, admittedly, is an agent or employee of the United States.

That plaintiff was injured at the time and place and in the manner alleged, is sustained by the record. In testifying for herself she had only a vague recollection of details. She is 84 years of age, infirm of body and mind, and about all she remembers consists of the salient aspects of the case. She testified that she was hurrying to the post office, that she was in a hurry because she wanted to catch a train, that she caught her foot, fell, and broke her right arm near the shoulder, that she was rushing around and that that was what caused her to fall, that she fell in front of the post office, that she caught her toe in a little hole in the pavement, that she afterwards showed her attorney and an official of the Post Office Department the place where she fell, that she came on to the post office window after getting up from the fall, and that she did so in an injured condition. Her testimony as to her fall and injury has some corroboration from the post office employees and from a nurse at the hospital where she went for treatment three days after the accident. She has since been hit by a truck, and the two injuries, conjoined to infirmities due to her advanced age, have produced what appears to be permanent and almost total disability for any sort of employment.

Defendant relies primarily on law defenses, namely, that plaintiff has no cause of action against defendant for failure of the postmaster properly to inspect and maintain the sidewalk and that the defendant, including the postmaster, owed plaintiff no duty to maintain the sidewalk in a safe condition. A further defense is that of contributory negligence.

Heretofore the Court tentatively overruled a motion by defendant to dismiss the action on the strength of the first defense above named. Restated, the defense is that a principal is not answerable to an injured third party for injuries resulting from an omission or nonfeasance of the principal's agent. Translated into the present situation, it is, that the United States is not liable to this plaintiff, for the reason that the postmaster's failure properly to inspect and maintain the sidewalk was an act of omission or nonfeasance, involving a breach of duty owing solely to his employer, of which the public, including the plaintiff, has no ground for complaint. The leading case on the point is Drake v. Hagan, 108 Tenn. 265, 67 S.W. 470. But later cases are not in accord and have found a way to avoid the effect of the Drake decision.

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