Furey v. U.S.

• Decision Date: 23 October 2006
• Docket Number: No. 1:03-CV-1215 (GLS).,1:03-CV-1215 (GLS).
• Parties: Mary O. FUREY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of New York

458 F.Supp.2d 48

Mary O. FUREY, Plaintiff, v. UNITED STATES of America, Defendant.

No. 1:03-CV-1215 (GLS).

United States District Court, N.D. New York.

October 23, 2006.

COPYRIGHT MATERIAL OMITTED

Basch, Keegan Law Firm, Kingston, NY (Derek Spada, of counsel), for Plaintiff.

Hon. Glenn T. Suddaby, United States Attorney, Barbara D. Cottrell, Assistant United States Attorney, of counsel, Albany, NY, for Defendant.

MEMORANDUM-DECISION AND ORDER

SHARPE, District Judge.

I. Introduction

While walking across an unpaved landscape area at the Greenfield Center Post Office, Mary 0. Furey slipped and fell on a slushy accumulation of snow and ice, and fractured her ankle. She sued under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et. seq., claiming that the Post Office negligently failed to maintain the area or warn her about walking there. Following a bench trial, the court reserved. For the reasons that follow, judgment is granted to Furey, and comparative damages are awarded in the total amount of eighteen-thousand and seven-hundred and fifty dollars ($18,750).

II. Burden of Proof

The FTCA "requires application of the whole law of the State where the act or omission occurred." Richards v. U.S., 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); see also Bernard v. U.S., 25 F.3d 98, 102 (2d Cir.1994) (citing 28 U.S.C. § 1346(b)(1)). In New York, a plaintiff must prove negligence by a preponderance of the evidence. See Torem v. 564 Cent. Ave. Rest, Inc., 133 A.D.2d 25, 26, 518 N.Y.S.2d 620 (1st Dep't 1987); see also NEW YORK PATTERN JURY INSTRUCTIONS-CIVIL Vol. 1a, 1:23 (3d ed.2005). If a defendant pleads comparative fault as a defense, it bears the same burden of proof on that issue. see Gonzalez v. Medina, 69 A.D.2D 14, 19-20, 417 N.Y.S.2D 953 (1ST Dep't 1979); SEE ALSO N.Y.C.P.L.R. §§ 1411, 1412 (McKinney 1997); NEW YORK PATTERN JURY INSTRUCTIONS-CIVIL, Vol. 1A, 2:36 (3d ed.2005).

III. Findings of Fact

Having applied the shifting burden of proof applicable to negligence actions involving comparative fault, see Grisoff v. Nicoletta, 107 A.D.2d 1047, 1048, 486 N.Y.S.2d 579 (4th Dep't 1985), and having resolved issues of credibility, the court recites its factual conclusions. See FED. R.CIV.P. 52.

Access to the Greenfield Center Post Office is through eastward facing doors located at the southeast corner of the building. Customers normally park in a paved lot south of the building's exterior. The lot has several marked spaces that are perpendicular to the building. A paved sidewalk runs east from the doors, and turns six feet south, past the southeast corner of the building, to the parking lot. There is a six-by-twenty foot unpaved landscape area running west from the southeast corner of the building, and adjcent to the parking lot on the north and the paved sidewalk on the east. The landscape area has no plants, but it is decorated with a layer of red ornamental stone.

The configuration of the landscape area and its cover of ornamental stone existed for more than five years at the time of Furey's accident. During that time, customers who parked west of the southeast corner of the building routinely used the landscape area as the shortest route into the Post Office. Although the Postmaster was aware that they did so, she did nothing to provide for snow and ice removal because she had never received complaints. Because she had received no complaints and since the parking lot and sidewalk were routinely cleared to provide safe access, she did nothing to dissuade customers from using the landscape area such as posting a sign or erecting a fence. She was, however, subject to the following postal regulation: "You must establish snow and ice removal plans where necessary. Pay particular attention to areas where customers and other pedestrians may slip and fall....Provide for reinspection and cleaning as often as necessary to handle drifting snow and refreezing...." See Supervisor's Safety Handbook, Handbook EL-801 at 8-15.2, Ex. 35.

During the two weeks preceding December 20, 2002, at least nineteen inches of snow had fallen. The snow had been periodically cleared from the parking lot and sidewalk and partially plowed and shoveled into the landscape area. On December 20, it was cloudy and misty, but there was no discernible precipitation. Although there was a spotty cover of snow, ice and slush on the ornamental stone, the parking lot and sidewalk were wet, but otherwise clear.

Shortly after 1:00 P.M., Furey drove to the Post Office to transact business and parked in a marked spot several spaces to the west of the southeast corner of the building. As was her custom when parked in that location, she exited her vehicle and took the most direct route into the Post Office. She walked to the front of her car, stepped over the curb onto the landscape area, walked along the south side of the building, stepped onto the sidewalk, and entered the Post Office. As she did so, it should have been obvious to her that the ornamental stone was covered with slush. Had she looked at her surroundings, it would have been readily apparent that the parking lot and sidewalk were free of slush. The court discredits her testimony that after exiting her vehicle, she first surveyed her surroundings, and ascertained that the condition of the landscape area, the parking lot and the sidewalk were identical; namely, slush-covered. Instead, the court finds that the parking lot and sidewalk were clear, that she never looked, and that she simply took her usual route.

After conducting her business, Furey exited the Post Office as she had entered and began to retrace her route to her vehicle. After she stepped from the clear sidewalk onto the ornamental stone, and within a distance of several feet, she slipped on slush covered ice, fell on her right side, and fractured her right ankle.

Within thirty minutes, she was transported to a hospital by ambulance. Once there, an x-ray revealed transverse fractures of her ankle, one on the inner bone and another on the outer bone. She was in considerable pain, and was prescribed pain medication. She was admitted to the hospital, and surgery was performed the next day.

Dr. Fein, an orthopedic surgeon, performed an open reduction internal fixation. After making a surgical incision to expose the two fractures, he inserted an interfragmentary screw in the inner ankle and a plate and several screws in the outer ankle. He then immobilized the ankle with a rigid fiberglass splint.

After three days, Furey was discharged from the hospital, and she was prescribed Percocet to control her pain. She was confined to a wheel chair for approximately three weeks, required crutches and a walker until April, and thereafter underwent thirty-nine physical therapy sessions. Throughout her recuperation, she remained under Dr. Fein's care. During that time, he first replaced the splint with a removable, rigid cast (CAM Walker), and then an air cast. By October, the plate was causing Furey discomfort, and a second operation to remove it was performed on October 10, 2003. The ankle was again immobilized with various casts until they were permanently removed in early 2004.

On March 26, 2004, Furey was examined by Dr. Bilfield, an orthopedic surgeon. The court credits his conclusion that other than surgical scars on her right ankle, Furey had fully recovered.

In November 2003, and while recuperating from her ankle injury, Furey reported shoulder pain to Dr. Fein. She was ultimately diagnosed with a partial rotator cuff tear that was surgically repaired in the Fall. Furey failed to prove that the rotator cuff tear was causally related to her fall at the Post Office. After her December 2002 fall, she never complained about the shoulder problem until eleven months later. She told Dr. Fein that she had collided with another individual weeks before she reported the injury and subsequently urged him to change his treatment notes to reflect that the injury had occurred earlier. The court also discredits her testimony concerning the lingering effects of the ankle injury. In an obvious effort to exacerbate the continuing extent of her injury, she testified that she still suffered bouts of considerable pain and significant limitations on her mobility. The testimony of both her treating physician, Dr. Fein, and the consulting expert, Dr. Bilfield, contradicted those claims. Nonetheless, Furey's recuperation lasted fourteen months, necessitated, in part, by the second surgery which was directly caused by the original fall. During her recuperation, she suffered from varying limitations on both her mobility and her ability to engage in many of her customary life's activities.

IV. Analysis

A. Liability

To establish negligence, Furey must prove: (1) that the Post Office owed her a duty; (2) that it breached that duty; and (3) that her injuries were substantially caused by that breach. See Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir.2002). The Post Office maintains that it satisfied any duty it owed Furey by clearing the parking lot and sidewalk, thus providing reasonable access along a path free of snow, ice and slush. Therefore, it argues, it had no duty to clear the landscape area or otherwise warn its customers not to use it. It also argues that Furey assumed the risk that she would slip and fall when she opted to use the slush covered pathway.

The Post Office is correct that absent a duty, there can be no liability. See Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir.2000) (citations omitted). The Second Circuit has observed that in New York "the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges." Lombard, 280 F.3d at 216 (citing Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (1994)). "[T]he determination of the existence of a duty and the concomitant...