FRAllA v. U.S.

• Decision Date: 07 January 2008
• Docket Number: Civil Action No. 06-1410 (CKK).
• Citation: 529 F.Supp.2d 61
• Parties: Luke FRAllA and Mary Frazza, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

529 F.Supp.2d 61

Luke FRAllA and Mary Frazza, Plaintiffs, v. UNITED STATES of America, Defendant.

Civil Action No. 06-1410 (CKK).

United States District Court, District of Columbia.

January 7, 2008.

Ari Scott Casper, Stein, Mitchell & Mezines, L LP, Washington, DC, for Plaintiffs.

Jane M. Lyons, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiffs, Luke and Mary Frazza, bring this action against Defendant, the United States of America, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Luke Frazza ("Mr.Frazza") is a photographer for a news media organization, who was assigned to photograph the President of the United States at the White House. During the course of that assignment, Mr. Frazza slipped and fell, sustaining injuries to his back and spinal cord. Mr. Frazza alleges that his fall and resulting injuries were caused by Defendant's negligence; his wife; Mary Frazza ("Mrs.Frazza"), claims loss of consortium and services. Defendant has moved for summary judgment on the issue of liability, asserting that Plaintiffs' negligence-based claims fail because Plaintiffs cannot prove a breach of an applicable and defined standard of care. Upon a searching review of Defendant's Motion for Summary Judgment, Plaintiffs' Opposition, Defendant's Reply, the exhibits attached to those filings, the relevant statutes and case law, and the entire record herein, the Court shall grant Defendant's-Motion for Summary Judgment and shall dismiss this case in its entirety.

I. BACKGROUND

The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h)) (formerly Rule 7.1(h)), and that Plaintiffs were advised of the Court's strict compliance with the local rules in the Scheduling and Procedures Order entered on October 31, 2006 and at the Status Conference held in this matter on May 4, 2007. The local rules for summary judgment "assist[ the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C.Cir. 1996). "Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes.... The procedure contemplated by the rule thus isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record." Id. (quoting Gardels v. CIA, 63.7 F.2d 770, 773 (D.C.Cir.1980)).

In particular, Local Civil Rule 56.1 requires that each party submitting a motion for summary judgment attach a statement of material facts as to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement.¹ The party opposing such a motion must, in turn, submit a statement of genuine issues enumerating all material facts that the, party contends are at issue and thus require litigation. See LCvR 56.1. Where the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. LCvR 56.1. As the D.C. Circuit has emphasized, "[LCvR 56.1] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson, 101 F.3d at 151.

Defendant complied with its obligation pursuant to Local Civil Rule 56.1 by submitting, along with its Motion for Summary Judgment, a Statement of Material Facts Not in Genuine Dispute (hereinafter "Def.'s Stmt.") that sets forth in numbered paragraphs Defendant's factual assertions, supported by precise citations to the record. Plaintiffs, however, failed to carry their burden under Local Civil Rule 56.1, because they did not submit a "separate concise statement of genuine issues," along with their Opposition. See LCvR 56.1. Indeed, Plaintiffs' Opposition does not even attempt to controvert Defendant's specific factual assertions. See generally Pls' Opp'n.² In light of this failure, pursuant to Local Civil Rule 56. 1, in resolving the instant motion, the Court assumes that the facts identified by Defendant in its Statement are admitted. See LCvR 56.1. In addition, to the extent that Plaintiffs' "Relevant Facts" section adds details not included in Defendant's Statement but supported by citations to record evidence, the Court credits those assertions below.

A. The Circumstances of Mr. Frazza's Injury

The facts of this case present a rather straightforward negligence claim. Plaintiff Luke Frazza is a photographer with Agence France-Presse ("AFP"). Def.'s Stmt. ¶1 Compl. ¶3. In January 2005, Mr. Frazza was assigned to cover the White House and take pictures of the President of the United States. Def.'s Stmt. ¶1; Compl. ¶3. As a result, Mr. Frazza had access to portions of the White House complex. Def.'s Stmt. ¶ 1. On January 23, 2005, there was a heavy snow storm in the Washington, D.C. area. Compl. ¶5; Pls' Opp'n at 3 (citing Pls' Opp'n, Ex. 3 (3/14/07 Tr. of Dep. of L. Frazza) at 15:21-16:8 (hereinafter "Frazza Dep."). On that day, Mr. Frazza was carrying out his duties at the White House, and was moving from the North Portico driveway to the south lawn to photograph the President departing by helicopter. Pls' Opp'n at 3 (citing Pls' Opp'n, Ex. 3 (Frazza Dep.) at 45:18-46:19. On the way, Mr. Frazza decided to drop off some of his equipment at his desk within the White House press area. Id.; Pls' Opp'n, Ex. 3 (Frazza Dep.) at 45:18-47:5. While carrying his usual complement of equipment, Mr. Frazza slipped and fell as he entered a doorway leading from the outside into the press lunch area of the White House. Def.'s Stmt. ¶ 2; Def.'s MSJ, Ex. 3 (Frazza Dep.) at 32:17-24, 49:16-25.³ Mr. Frazza believes that the vinyl tile surface of the floor where he slipped was wet at the time. Def.'s Stmt. ¶ 3; Def.'s MSJ, Ex. 3 (Frazza Dep.) at 49:19-25; 52:20-53:9. Mr. Frazza does not, however, recall whether his pants were wet after he fell, or whether he felt cold after falling. Id. at 53:4-9. In the "Relevant Facts" section of their Opposition, Plaintiffs describe the floor where Mr. Frazza fell as wet, but not as icy. Pl's Opp'n at 3.

Plaintiffs' Complaint alleges that Mr. Frazza sustained serious and permanent injuries to his back and spinal cord as a result of his fall at the White House on January 23, 2005, and that his injuries "caus[e] constant pain and inhibit[ ] him in every aspect of his life." Compl. ¶5.⁴ Plaintiffs further allege that "[a]s a direct and proximate result of Mr. Frazza's injuries, he has incurred and will incur medical and related expenses," as well as a loss of earnings, impairment of earning capacity, and significant physical and emotional pain and suffering. ¶ Id. ¶6. Mrs. Frazza "makes a claim for the loss of consortium and services caused by" Mr. Frazza's injuries. Id. ¶ 9.

B. Plaintiffs' Proposed Expert's Findings

Pursuant to the Court's Scheduling and Procedures Order and Federal Rule of Civil Procedure 26(a)(2), Plaintiffs identified Dr. Randall Atlas, "a safety and security consultant who is a certified professional with the American Society of Industrial Security (ASIS) and is affiliated with the American Society of Safety Engineers," as an expert to "testify as to the standard of care in building maintenance during inclement weather." Def.'s Stmt. ¶ 4; Def.'s MSJ, Ex. 4 (Pls' Expert Witness Stmt) ¶ 5. In his January 26 2007 Report, Dr. Atlas describes himself as an "expert on human facters, ergonomics, and architectural safety issues." Def.'s MSJ, Ex. 1 (1/26/07 Atlas Rep.) at 1; see also Pls' Opp'n, Ex. 9 (Atlas Curriculum Vitae and Testifying Experience).⁵ Dr. Atlas' Report describes an inspection he conducted of the site of Mr. Frazza's fall on October 20, 2006, and asserts that "Mr. Frazza stated that on the day of the accident, there were no protective mats, nor any canes warning of the wet surfaces." Def.'s MSJ, Ex. 1. (Atlas Rep.) at 1.

Dr. Atlas' Report identifies the applicable standard for evaluating a surface made up of the type of vinyl tile on which Mr. Frazza allegedly fell as American Society of Testing Materials Technical Publication No. 649 ("ASTM 649"). Id. at 1-2. ASTM 649 sets forth a benchmark coefficient of friction of 0.5: a coefficient of friction above 0.5 is considered acceptably safe, while a coefficient of friction below 0.5 is considered slippery. Id.; see also Def.'s Stmt. ¶5. During his. October 20, 2006 site inspection, Dr. Atlas personally conducted tests of the tile where Mr. Frazza fell, under wet, dry, and icy conditions. Id. ¶6; Def.'s MSJ, Ex. 2 (3/22/07 Atlas Dep. Tr.) at 24:20-27:8. Dr. Atlas determined that the floor where Mr. Frazza fell had a coefficient of friction of 0.57 when dry, and accordingly testified during his deposition that, when dry; the tile floor was safe and within the standard of care defined by ASTM 649. Def.'s Stmt. ¶ 7; Def.'s MSJ, Ex. 1 (Atlas Rep.) at 1-2; Def.'s MSJ, Ex. 2 (Atlas Dep.) at 39:4-6, 50:4-7.

During his deposition, Dr. Atlas testified that his testing revealed that when `wet, the particular floor where Mr. Frazza fell had a coefficient of friction of 0.85, and was therefore "actually more slip resistant" than when dry. Def.'s Stmt. ¶ 8; Def.'s MSJ, Ex. 2 (Atlas Dep.) at 51:1-52:19⁶ Dr. Atlas explained that he did not include the results of his wet floor test in his Report because "it was unusual to find where the coefficient of friction when it was wet was actually greater than when it was dry," but also testified that such results were possible and that he did not think his data was flawed because he rechecked his results. Id. at 51:15-52:6. The, parties do not dispute—and Dr. Atlas...