Fitje v. United States

• Decision Date: 31 March 2016
• Docket Number: 11-CV-1604 (MKB)
• Parties: JUSTIN FITJE, Plaintiff, v. UNITED STATES of AMERICA, Defendant.
• Court: U.S. District Court — Eastern District of New York

JUSTIN FITJE, Plaintiff, v. UNITED STATES of AMERICA, Defendant.

11-CV-1604 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 31, 2016

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Justin Fitje commenced the above-captioned action on April 1, 2011, against Defendant the United States of America, alleging negligence in violation of the Federal Tort Claims Act (the "FTCA"). On April 11, 2014, Defendant moved to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Def. Mot. to Dismiss or for Summ. J., Docket Entry No. 38.) At oral argument held on March 20, 2015, the Court denied Defendant's motion and "granted Defendant leave to renew its motion as to the sole issue of whether the government has a duty to maintain its property under New York [l]aw." (Mar. 20, 2015 Min. Entry.) Defendant moves to renew its motion to dismiss or, in the alternative, for summary judgment. (Def. Notice of Renewed Mot. to Dismiss or for Summ. J. ("Def. Mot."), Docket Entry No. 53; Def. Mem. of Law in Supp. of Def. Mot. ("Def. Mem."), Docket Entry No. 54; Def. Reply Mem. of Law in further Supp. ("Def. Reply"), Docket Entry No. 57.) Plaintiff opposes the renewed motion. (Pl. Aff. in Opp'n to Def. Mot., Docket Entry No. 56; Pl. Mem. of Law in Opp'n ("Pl. Mem."), Docket Entry No. 56-3.) For the reasons set forth below, the Court denies Defendant's motion to dismiss and for summary judgment.

I. Background

Plaintiff seeks damages for injuries he sustained while he was attempting to repair an air conditioning unit ("AC unit") on the roof of a United States Post Office located at 200 Fulton Avenue, Hempstead, New York (the "Post Office"). (Pl. Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Pl. 56.1") ¶ 2, Docket Entry. No 45.) Defendant owns and controls the premises on which the Post Office is located (the "Premises"). (Id. ¶ 3.)

a. Maintenance of the Post Office's AC units

At the time of Plaintiff's injury, there were three AC units on the roof of the Post Office. (Def. Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 ("Def. 56.1") ¶ 9, Docket Entry No. 39.) None of Defendant's employees were responsible for the maintenance or repair of the AC units. (Id. ¶ 11.) Instead, whenever a problem with the AC units would arise, the Post Office's Postmaster, Kevin Rynne, would report the problem through the United States Postal Service's ("USPS") Facilities Single Source Provider program ("FSSP"), and request servicing and repairs for the AC units. (Id. ¶¶ 7, 13.) When a request for service is made through FSSP, USPS Facilities Engineer Gene Giacoia is responsible for hiring an independent contractor to perform any necessary repairs.¹ (Id. ¶ 6.) In the past, Defendant has hired independent contractors to perform repairs on the AC units at the Post Office, but has not entered into written agreements with any of these independent contractors. (Dep. of Gene Giacoia 18:9-14, annexed to Decl. of Robert B. Kambic as Ex. C, Docket Entry No. 41.)

On June 8, 2009, Rynne reported through FSSP that one of the AC units on the roof of the Post Office "was not working." (Def. 56.1 ¶ 14.) The "FSSP office" hired a heating, ventilation, and air conditioning ("HVAC") independent contractor, Sound Refrigeration and Air Conditioning, "to fix the problem." (Id.) On June 23, 2009, the Post Office reported through FSSP "that the air conditioning at the Post Office was totally down." (Id. ¶ 15.) On or about June 24, 2009, Giacoia contacted Apollo HVAC ("Apollo"), another HVAC independent contractor, to "take a look at the [AC] units to assess their repair." (Id.) At some point before August 10, 2009, Apollo directed Julio Claudio, Plaintiff's co-worker, "to service problems with the same [AC] unit" that Plaintiff was subsequently sent to service. (Id. ¶ 16.) Claudio "changed a couple of contactors on the unit." (Id. ¶ 29.)

b. The August 10, 2009 incident

On August 10, 2009, "Plaintiff received a service ticket from his employer [(Apollo)] to go to the [Post Office] to service an AC unit that was not operating." (Id. ¶ 28.) After heading to the roof of the Post Office, a Post Office employee identified the AC unit that was in need of repair,² and Plaintiff then retrieved his tools from his vehicle and returned to the roof of the Post Office "unescorted." (Id. ¶ 30.)

Plaintiff observed that the AC unit was not operating. (Id. ¶ 31.) He removed the main access door to the unit in order to use his electric meter to determine if the unit was receiving power. (Id.) When Plaintiff placed his electric meter on the "terminal block"³ of the middle lug of three lugs on the AC unit, an electric arc and explosion occurred, injuring Plaintiff. (Id.;Aff. of Brian Keating ("Keating Aff.") ¶ 7, annexed to Tantleff Aff. as Ex. D; Salinger Dep. 56:14-57:2.) Plaintiff was taken to Nassau University Medical Center where doctors performed an "excision of the left dorsal hand burn," a "split thickness skin graft to the left hand," and "serial debridements." (Pl. 56.1 ¶ 23.)

c. Investigation of the incident

Following Plaintiff's injury, Giacoia hired Robert E. Salinger, a licensed master electrician with SRS Electrical Consultants, Inc., to investigate the cause of the accident. (Letter dated Aug. 13, 2009 ("Salinger Ltr.") 1, annexed to Tantleff Aff. as Ex. F; Salinger Dep. 6:22-7:12, 13:21-14:7.) Salinger examined the damaged AC unit and conducted interviews of individuals who were on-site at the time of the incident.⁴ (Salinger Ltr. 1; Salinger Dep. 11:21-12:3, 13:21-14:7.) In a letter to Giacoia, Salinger memorialized his findings and opinion as to the cause of the incident (the "Salinger Letter"). (Salinger Ltr. 1.) Based on his "experience with similar types of damage," his examination of the AC unit, and the interviews he conducted, Salinger concluded that, although Plaintiff "began the series of events" that resulted in his injury, there were several problems with the AC unit and the associated electrical wiring that "contributed to the size and scale of the injury and damage." (Id.)

Salinger concluded that there were three main conditions that led to the incident. First, he determined that because the AC unit's terminal block "was missing a section of the divider between [two] phases of lugs," when Plaintiff placed his electrical meter on the terminal block, it "create[d] a dead shot," resulting in "a cascade of events" that led to Plaintiff's injury. (Id.)

Second, Salinger determined that the main fuses in the basement which were "feeding" the AC unit were also problematic. He found that the "single blow type fuses," which had anampacity of 400 amps, were connected to the "service switch" outside the AC unit by a wire that had an ampacity of 225 amps, which "may have helped the [electric] arc to become higher." (Id.) Salinger stated that instead of the 400 amp "single blow types fuses" that were used in the basement, Defendant should have used "200 amp dual element fuse[s]" because dual element fuses "would have probably reacted faster, possibly reducing some of the [electric] arc." (Salinger Dep. 39:20-41:18.)

Third, Salinger determined that the wiring for the terminal block was inaccurate. (Salinger Ltr. 1.) Salinger stated that the maximum wiring that was listed on the AC unit for the terminal block was "2/0 wire," which was too small to serve the unit. (Id.) He also determined that the size of the actual wiring from the service switch to the AC unit was "3/0 wire," which was the correct size for the unit. (Id.) However, to make the "3/0 wire" fit into the terminal block, which had a listed wire size of "2/0," the "ends of the wire were clipped." (Id.) Salinger stated that clipping the larger size wires to fit the terminal block was an improper procedure and "illegal." (Id.) Salinger also stated that the clipping of the wire appeared to have been performed when the unit was first installed as "all components appear[ed] to be original to the unit." (Id.)

Plaintiff retained Brian Keating, the director of apprenticeship and training for the United Service Workers Union Local 355 and Apollo's former director of operations, to determine the cause of the incident. (Keating Aff. ¶ 4.) Keating accompanied Salinger when Salinger inspected the AC unit. (Id. ¶ 6.) In addition to Keating's visual inspection of the AC unit and the associated wiring, he reviewed the deposition transcripts of Plaintiff, Rynne and Salinger, as well as the USPS repair records and the Salinger Letter. (Id.) Keating determined that there were many issues with the AC unit and the associated wiring. First, he determined that that theterminal block was "improperly wired with 3/0 wire," contrary to the manufacturer's specification for "2/0 wire," and that, "[i]n order to fit the 3/0 wire, the wires were snipped down until they would fit into a 2/0 slot in the [t]erminal [b]lock." (Id.) Second, he determined that there were "improper oversized slow blow fuses" in the basement. (Id.) He found that the "improper wiring affected the integrity of the [t]erminal [b]lock and created a dangerous condition." (Id.) He also found that the failure to both "properly wire" and "maintain" the terminal block "in accordance with the National Electrical Code" led to a "breakdown of the divider between the phase lugs and was also a dangerous condition." (Id.) Keating concluded that "the aforementioned defects in the [t]erminal [b]lock and the oversized fuses[] were [] substantial factor[s] in causing" the incident and Plaintiff's injuries. (Id. ¶ 9.)

II. Discussion

a. Standards of review

i. Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court "lacks the statutory or constitutional power to adjudicate...