Denney v. US Postal Service

• Decision Date: 05 February 1996
• Docket Number: Civil A. No. 95-2035-GTV.
• Parties: Debra DENNEY, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — District of Kansas

916 F. Supp. 1081

Debra DENNEY, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.

Civil A. No. 95-2035-GTV.

United States District Court, D. Kansas.

February 5, 1996.

George E. Mallon, George E. Mallon, P.A., Kansas City, KS, for plaintiff.

Christina L. Morris, Office of United States Attorney, Kansas City, KS, for defendant.

MEMORANDUM AND ORDER

VAN BEBBER, Chief Judge.

This case is before the court upon defendant United States Postal Service's motion for summary judgment (Doc. 16). For the reasons stated below, the motion is granted.

I. Background

Plaintiff Debra Denney alleges that on August 4, 1992, she fell after exiting the post office located at 3115 North 51st Street, Kansas City, Kansas, which is known as the Robert L. Roberts Station. Denney contends a hole in the sidewalk and its unevenness caused her to fall. As a result of the fall, the plaintiff maintains she has suffered permanent injury to her right knee. Denney has undergone three surgeries on the knee.

The plaintiff has filed a negligence suit against the United States Postal Service pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. She claims that the defendant's negligence and carelessness in maintaining its sidewalks at the Robert L. Roberts Station caused her injury. Denney seeks actual damages in the amount of $500,000.00. The defendant subsequently filed a motion for summary judgment, arguing that any defect in the sidewalk is slight and not actionable negligence under Kansas law.

II. Jurisdiction

Although the defendant does not raise the defense, this court's subject matter jurisdiction is in question. "Every federal court, whether trial or appellate, is obliged to notice want of subject matter jurisdiction on its own motion." Things Remembered, Inc. v. Petrarca, ___ U.S. ___, ___ n. 1, 116 S.Ct. 494, 499 n. 1, 133 L.Ed.2d 461 (1995) (Kennedy, J., concurring); see Hardiman v. Reynolds, 971 F.2d 500, 502 (10th Cir.1992) ("A court must raise a defense sua sponte if that defense implicates the court's subject matter jurisdiction."); Tafoya v. United States Dep't of Justice, 748 F.2d 1389, 1390 (10th Cir. 1984) ("Insofar as subject matter jurisdiction is concerned, it has long been recognized that a federal court must, sua sponte, satisfy itself of its power to adjudicate in every case and at every stage of the proceedings and the court is not bound by the acts or pleadings of the parties.").

The United States Postal Service is not a proper defendant is an action brought pursuant to the Federal Tort Claims Act, which does not permit a plaintiff to sue an agency in its own name. Only the United States is a proper defendant in such an action. Naming the proper defendant is a jurisdictional prerequisite to asserting a claim under the Federal Torts Claims Act.¹ See 28 U.S.C. §§ 1346(b), 2679(a); Duvall v. United States Dep't of Agric., 1996 WL 10905 (10th Cir.1996); Gibson v. O'Brien, No. 88-3129, 1991 WL 50294 (D.Kan. Mar. 6, 1991); see also Martinez v. United States Post Office, 875 F.Supp. 1067, 1072-73 (D.N.J.1995); Valluzzi v. United States Postal Serv., 775 F.Supp. 1124, 1125 (N.D.Ill.1991); Anderson v. Bailar, 459 F.Supp. 792, 793 (M.D.Fla. 1978), aff'd, 619 F.2d 81 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980); McNair v. United States Postal Serv., 446 F.Supp. 1156, 1157 (C.D.Cal.1978). Here, the plaintiff has named the United States Postal Service as the only defendant. Although the United States Postal Service admits jurisdiction in its answer, "lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction or stipulation." Tuck v. United Serv. Auto. Ass'n, 859 F.2d 842, 844 (10th Cir.1988) (quoting Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974)), cert. denied, 489 U.S. 1080, 109 S.Ct. 1534, 103 L.Ed.2d 839 (1989). Accordingly, this court lacks subject matter jurisdiction over the case as currently pled.

III. Potential Amendment to Name Proper Defendant

In the interest of judicial economy, the court will address whether the proper party, the United States, can be added at this point in the proceedings. Because the statute of limitations has run, see 28 U.S.C. § 2401(b)², Denney presumably would attempt to add the United States pursuant to Rule 15(c) of the Federal Rules of Civil Procedure. Rule 15(c) permits a plaintiff to add a defendant and to have the date of that amendment "relate back" to the filing date of the original action, thereby avoiding statute of limitation concerns. Rule 15(c) requires the new defendant to have received actual notice of the action prior to the statute of limitations running. Actual notice requires the plaintiff to have made service of process upon the United States Attorney or designee. Denney served an Assistant United States Attorney with the original complaint, which was filed timely. It appears the United States had actual notice of the action prior to the statute of limitations running.

IV. Summary Judgment

Because the United States could be added as the proper defendant and that amendment could relate back to the original filing of the complaint, the court will address the merits of the defendant's motion for summary judgment.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue regarding any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All disputed facts, and reasonable inferences derived from the evidence presented, must be resolved in favor of the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986); Frandsen v. Westinghouse Corp., 46 F.3d 975, 977 (10th Cir.1995); F.D.I.C. v. 32 Edwardsville, Inc., 873 F.Supp. 1474, 1479 (D.Kan.1995). Here, the material facts are not disputed.

Under the Federal Tort Claims Act, the United States is liable in tort "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, "in accordance with the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b). The court "looks to the law of the state in which the alleged tortious activity occurred to resolve questions of liability under the Federal Tort Claims Act." Ayala v. United States, 49 F.3d 607, 611 (10th Cir.1995); see Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir.1993). As the defendant has suggested, Kansas negligence law governs this action.

The defendant argues the sidewalk irregularity that Denney claims caused her fall is slight and therefore not actionable negligence in Kansas. The defendant contends it is not required to keep sidewalks in perfect condition. Rather, "its duty is to maintain sidewalks in a reasonably safe condition for public use." Roach v. Henry C. Beck Co., 201 Kan. 558, 560, 442 P.2d 21 (1968).

Under Kansas law, "slight variances or imperfections in sidewalk surfaces are not sufficient to establish actionable negligence in the construction or maintenance of sidewalks."³ Sepulveda v. Duckwall-Alco Stores, Inc., 238 Kan. 35, ¶ 1, 708 P.2d 171 (1985). "Sometimes an imperfection in a walk may be of such a character that the court can say, as a matter of law, that it does not constitute an actionable defect." Taggart v. Kansas City, 156 Kan. 478, 481, 134 P.2d 417 (1943). Whether a defect constitutes actionable negligence depends upon the facts and circumstances of each case. Id.

Numerous Kansas decisions have addressed imperfections in sidewalks, holding that the alleged defect was slight and therefore not actionable. See Sepulveda, 238 Kan. at 37, 708 P.2d 171 (1 inch "drop-off in a sidewalk"); Green v. Steward, 216 Kan. 720, 720, 533 P.2d 1240 (1975) (per curiam) (corner of concrete sidewalk protruded ¼ inch above rest of sidewalk); Roach, 201 Kan. at 558, 442 P.2d 21 (plywood board, roughly ¾ inch thick and 3 feet square, covering sidewalk hole); Pierce v. Jilka, 163 Kan. 232, 234, 181 P.2d 330 (1947) (door mat on sidewalk measured 1 inch thick, 24-29 inches long, and 18-19 inches wide); Taggart, 156 Kan. at 482, 134 P.2d 417 (3-inch "stepdown" between sidewalk slabs); Blankenship v. Kansas City, 156 Kan. 607, 612, 135 P.2d 538 (1943) (brick sidewalk missing 6-8 bricks, leaving depression 2 inches deep and 14-16 inches square); Biby v. City of Wichita, 151 Kan. 981, 983, 101 P.2d 919 (1940) (flat piece of steel loose on sidewalk covered rain gutter; piece of steel weighed 60-125 pounds and measured ¼ inch thick, 12 feet long, and 10½ inches wide). Although the dimensions of the irregularity are the most important factor in determining the actionability of the defect, other factors can come into play. Roach, 201 Kan. at 561-62, 442 P.2d 21. The location of the defect, the sidewalk's prior use and use at the time of the accident, and whether the defect has caused prior accidents are factors the Kansas Supreme Court has considered. Sepulveda, 238 Kan. at 38-39, 708 P.2d 171; Taggart, 156 Kan. 478, ¶ 2, 481, 134 P.2d 417.

This court recently applied the "slight defect" rule. In Denner v. N-F Properties, Inc., No. 94-1312, 1995 WL 333128 (D.Kan. May 22, 1995), the plaintiff claimed a sidewalk defect caused her fall. The irregularity "ran along a seam between two concrete slabs" and measured about "an inch to two inches deep, eight to ten inches long, and three to four inches wide at its widest point." 1995 WL 333128, *1. The defect was a few feet from the main entrance to the grocery store. Although the plaintiff did not see the defect on the day she fell, she had noticed the sidewalk irregularity without mishap on previous visits to the store. The plaintiff presented no evidence that the defect had caused other accidents. The grocery store owners knew that sidewalk...