DeVeau v. US, 90-CV-1157.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Citation833 F. Supp. 139
Docket NumberNo. 90-CV-1157.,90-CV-1157.
PartiesJohn DeVEAU and Patricia DeVeau, Plaintiffs, v. UNITED STATES of America, Defendant.
Decision Date16 September 1993

Maloney, Schell & Eisenhauer (Michael W. Schell, of counsel), Watertown, NY, for plaintiffs.

Gary L. Sharpe, U.S. Atty. N.D. New York (William Pease, Barbara E. Yunis, Asst. U.S. Attys., of counsel), Syracuse, NY, for U.S.


HURD, United States Magistrate Judge.


The plaintiffs, John DeVeau and Patricia DeVeau, ("Plaintiffs"), filed suit pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., and 1346(b) alleging that the defendant, United States of America ("Defendant") was negligent. More specifically, plaintiffs claim that plaintiff John DeVeau ("Plaintiff") sustained personal injuries because the defendant failed to "repair, inspect, maintain, monitor, or keep the said premises and its walking areas in a manner that would provide reasonable and adequate safety to plaintiff John DeVeau, and others, and by failure to warn the public of a dangerous condition of which defendant had knowledge." (Complaint — ¶ 10). Plaintiffs seek damages for his personal injuries and her loss of consortium. The defendant, in its answer, denied the material allegations in the complaint, and alleged as an affirmative defense that the plaintiff was comparatively negligent.


The court conducted a two day nonjury trial on May 3, and 4, 1993, in Watertown, New York. The following Memorandum-Decision and Order constitutes this court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.


The defendant, through its agency the U.S. Postal Service, occupied and was responsible for the maintenance of a postal facility at Ellisburg, New York. It was built in 1976, and consisted of a one story building with a parking lot and sidewalk in front. (Plaintiffs' Exhibits "1" and "3"). The main entrance, and the only entrance for the public, consisted of a door which opens outward. Upon going through the door from the outside, a patron enters a room which is shaped like an inverted L with a stand-up desk on the immediate right and mailboxes at the far end. (Plaintiffs' Exhibits "2", "3", and "4"). A patron may proceed to the right to the stand-up desk, go straight ahead to the mailboxes, or turn left and go through an interior door to another room where a counter is located to buy stamps etc., or to see the postmistress. The vinyl floor in the inverted L shaped room was covered with two rugs. The two rugs were positioned so as to cover each leg of the inverted L, but left a nine inch gap between the two rugs. (Plaintiffs' Exhibits "3" and "4"). This gap exposed the vinyl floor directly in front of the outside door. (Plaintiffs' Exhibit "4"). The two rugs had been in this position since at least 1978. There is no record of anyone slipping or falling in the area of this "vinyl gap" prior to the plaintiff's accident of August 17, 1988.

The plaintiffs are husband and wife. Plaintiff was born on September 12, 1931, and presently has a life expectancy of seventeen years. Mrs. DeVeau was born on July 7, 1938. They live about three/fourths of a mile from the post office.

At the time of the accident, the plaintiff worked for New York Air Brake in Watertown as a supervisor. He often got oil on his shoes while working. It was his custom to visit the post office almost every day after work between 5:00 P.M. and when the post office closed at 5:30 P.M. Following his visits, the postmistress would often have to clean up black oil marks left behind from his shoes. However, she never talked to him about this problem. She was also aware of other patrons tracking in other substances such as cow manure. The plaintiff had never slipped and fallen during the year and a half prior to the accident when he entered the post office on those routine visits, nor had he ever complained about the care and maintenance of the building.

Plaintiff worked as usual on August 17, 1988. He was wearing work shoes that had a hard toe and rubber soles that were smooth. (Defendant's Exhibit "2"). During the course of that work day, he undoubtedly accumulated some hydraulic oil on the heels and soles of his shoes. It rained during the day, but it had stopped when he left work at approximately 4:30 P.M. However, the sidewalks and streets were still wet. He drove directly to the post office, and arrived at 5:25 P.M., parked, got out of his automobile, walked across the wet sidewalk, and entered the building. At that time, he had oil and/or water on the heels and/or soles of his shoes. Because it had been raining earlier in the day, the rugs and vinyl gap inside the door were damp.

The postmistress was on vacation that day, and the relief clerk was the only one on duty. She knew it had been raining that day. No signs were posted warning patrons of the damp floor or the position of the rugs.

The plaintiff opened the door, stepped in, and started to turn to his left in order to proceed to the interior door and the counter. As he did so, his first step was on the vinyl gap between the two rugs. As a result of moisture on his shoes or the moisture in the vinyl gap or both, he slipped and fell on his left hip. The fall caused his shoe to leave a black skid mark in the vinyl gap.

After his fall, the relief clerk found him lying in the area of the two rugs and the vinyl gap. She saw the black skid mark in the area between the two rugs (Plaintiffs' Exhibit "4"). Mrs. DeVeau was called and she arrived later with her son, Steven Connelly, and attended to the plaintiff. Eventually, arrangements were made to transport the plaintiff to the hospital by ambulance.

The following day, August 18, 1988, the relief clerk completed and signed official U.S. Postal Service Accident Report (Plaintiffs' Exhibit "5"). In her narrative description of the accident, she stated, "Two rugs on floor, with about 9" of tile showing between them. Skid marks left on floor where fell. Shoes wet and hit the tile between the two rugs on floor. Had been raining earlier. Front lobby — Ellisburg Post Office." This report was approved by the postmistress when she returned from vacation.

As a result of the fall, plaintiff sustained personal injuries to his left hip. At the House of Good Samaritan Hospital in Watertown, he came under the care of Dr. Richard Withington, an orthopedic surgeon. He was diagnosed as having suffered a closed intracapsular fracture of the left femoral neck requiring open reduction and internal fixation. He was confined to the hospital from August 17, 1988, to August 26, 1988. (Plaintiffs' Exhibit "8"). Upon his discharge, he used crutches and continued to use them until November 28, 1988, when he advanced to using only one crutch. His activities were severely restricted until he returned to work on January 31, 1989. He was in the naval reserve, and was unable to return to duty until January 19, 1989. He continued to walk with a slight limp, assisted by the use of a cane, until around the end of February 1989. (Plaintiffs' Exhibit "10").

The internal fixation is still in place to this date, and it is anticipated that it will not be removed unless problems arise in the future. He has a surgical scar in this left leg/hip area approximately twelve inches long. (Plaintiffs' Exhibit "6"). He cannot engage in any activity which would "jar" the hip, such as running, jogging, or climbing ladders. He is left with a mild to moderate permanent partial disability according to the treating physician. This has limited his recreational and other activities such as household chores, camping, gardening, walking, acting as a volunteer fireman, and maintaining apartments. The plaintiffs had no sexual activity for about five months after the accident. Plaintiff also required assistance in the bathroom and in other everyday duties following his discharge from the hospital. Plaintiff claims that his loss of earnings is $2,833.57. There are no remaining claims for medical expenses.


A. Liability.

Pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., the Government has waived sovereign immunity from suit for claims of property damage or personal injury caused by the "negligent or wrongful act or omission" of its employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b); United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 1852, 10 L.Ed.2d 805 (1963); Guccione v. United States, 847 F.2d 1031 (2d Cir.1988), reh'g denied, 878 F.2d 32 (2d Cir.1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990); Hurwitz v. United States, 884 F.2d 684 (2d Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990); Avakian v. United States, 739 F.Supp. 724, 730 (N.D.N.Y.1990). Since the alleged negligent acts occurred in New York, the law of New York is controlling. 28 U.S.C. § 2674.

In New York, the present standard of care owed by a landowner to someone lawfully on the premises consists of a single standard of care, that is, a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition whereby foreseeability is the measure of liability. Basso v. Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 872, 386 N.Y.S.2d 564, 568 (1976); see Scurti v. City of New York, 40 N.Y.2d 433, 434, 354 N.E.2d 794, 795, 387 N.Y.S.2d 55, 56 (1976); see also Bartolomeo v. Evangel Church of God, 169 A.D.2d 696, 697, 564 N.Y.S.2d 184, 185 (2d Dept.1991). The defendant has a duty to maintain his premises in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. Basso, 40...

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