Hess v. US

• Decision Date: 12 August 1987
• Docket Number: Civ. A. No. 86-223-JLL.
• Citation: 666 F. Supp. 666
• Parties: Grayce A. HESS and Sidney W. Hess, her husband, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Delaware

666 F. Supp. 666

Grayce A. HESS and Sidney W. Hess, her husband, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 86-223-JLL.

United States District Court, D. Delaware.

August 12, 1987.

Frederick T. Haase, Jr., of Roeberg, Haase & Associates, P.A., Wilmington, Del., for plaintiffs.

Sue L. Robinson, Asst. U.S. Atty., Wilmington, Del., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

LATCHUM, Senior District Judge.

This civil action arises out of a "slip and fall" accident which occurred on May 17, 1985, at the Talleyville Branch of the United States Post Office at 3204 Concord Pike, north of Wilmington, Delaware. Plaintiff, Grayce A. Hess ("Mrs. Hess"), seeks the recovery of compensatory damages for bodily injuries sustained in the fall, and plaintiff, Sidney W. Hess, her husband ("Mr. Hess"), seeks to recover damages for the loss of his wife's consortium from the defendant, the United States of America.

The case was tried to the Court without a jury on June 8-9, 1987.

After carefully considering the sufficiency and weight of the testimony adduced at trial, the demeanor of the witnesses who testified, the exhibits admitted into evidence, and the post-trial submissions of the parties, the Court makes the following findings of fact and conclusions of law as required by Rule 52(a), Fed.R.Civ.P.

FINDINGS OF FACT

1. This is a tort action against the United States arising out of the alleged negligent acts of federal employees committed in the scope of their employment. (Docket Item "D.I." 1.)

2. At the time of the accident, Mrs. Hess was a 50-year-old woman, in excellent health, with no physical limitations, injuries or restrictions, and no prior broken bones or slip and fall injuries. (D.I. 52 at A-3, 9, 195; 53 at B-10, 23.) Mrs. Hess was not employed at the time of the accident (D.I. 52 at A-5), but participated regularly in gardening, aerobics, furniture refinishing, and charitable work at the Rockwood Museum. (D.I. 52 at A-6, 162, 168, 170, 177, 181; 53 at B-11, 29, 34, 40.)

3. The United States Postal Service has leased the Talleyville Post Office continually since 1962 and was responsible for the maintenance and repair of that office at the time of the accident. (D.I. 52 at A-112; Plaintiff's Exhibit "PX" 29, 30, 31.) The Talleyville Post Office has two sections open to the public: the outer lobby where the post office boxes are located; and the inner lobby where customers transact business with postal employees. (PX 28.) Customers must go through the outer lobby in order to reach the inner lobby. (Id.)

4. Mrs. Hess's accident occurred in the outer lobby. (D.I. 52 at A-19.) The floor in the outer lobby is made of terrazzo which consists of chips of marble in a matrix bed with metal strips closing each adjacent portion. (Id. at A-46.) There are two red mats in the outer lobby which serve as "walk off mats" for customers to walk off any water from their shoes. (Id. at A-131.) These mats are positioned perpendicular to one another to form a right angle extending from the entrance door of the outer lobby to the door leading from the outer lobby to the inner lobby. (PX 28.) The mats do not touch one another. (D.I. 53 at B-69.) There is a 9-1/2 to 10 inch gap between them exposing the terrazzo floor. (Id.; PX 28.)

5. Mrs. Hess's accident occurred on Friday, May 17, 1985. (D.I. 1 at ¶¶ 7-8.) Meteorological records indicate that 2.0 to 2.4 inches of rain fell in the Talleyville area on that date. (PX 15.) As a result, the sidewalk outside the Talleyville Post Office, along with most sidewalks in Talleyville, became quite wet. (Id.)

6. On the day of the accident, Mrs. Hess was extremely busy running errands for the annual Rockwood Museum Ice Cream Festival, for which she was chairperson. (D.I. 52 at A-10.) Mrs. Hess arrived at the Talleyville Post Office around 4:30 p.m., one-half hour before the office closed. (Id. at A-16, 96.) Mrs. Hess parked her car four or five spaces from the Post Office entrance and walked, without an umbrella, to that entrance. (Id. at A-30 to 32.) She was wearing a raincoat, rainhat, slacks, a blouse, and canvas shoes with a low ripply rubber-like sole. (Id. at A-14.)

7. As Mrs. Hess approached the entrance, a young man exiting from the Post Office held the glass double doors open enabling Mrs. Hess to enter the Post Office without stopping to open the doors. (D.I. 52 at A-30 to 31.) Once she entered the Post Office, Mrs. Hess stepped onto the first red mat. (Id. at A-18.) She does not recall looking at the mats but she did remember her foot "going down on a mat." (Id.) Mrs. Hess did not stop to wipe her feet on this mat but continued to walk at her "normal pace" toward the door leading to the inner lobby. (Id. at A-18, 19, 30.) She did not look at the floor as she walked, choosing instead to look straight ahead to the inner lobby doors. (Id. at A-39 to 40.) Since she wasn't looking at the floor, Mrs. Hess did not notice the portion of terrazzo floor exposed between the mats. (Id. at A-40.)

8. After a few steps, Mrs. Hess turned to her right and proceeded towards the inner lobby door. (D.I. 52 at A-19.) In doing so, Mrs. Hess stepped with her right foot on the portion of terrazzo floor exposed between the mats. (Id.) Her foot slid on the moist or wet terrazzo floor causing her to fall. (Id.) As a result of that fall Mrs. Hess suffered an impacted fracture of the femoral neck of the right hip. (PX 4.)

9. The mats and the exposed portion of the terrazzo floor were somewhat damp and wet on the day of the accident having been walked on all day by Post Office customers tracking in rainwater from the outside. (D.I. 52 at A-38; 53 at B-53, 84-85.) Mrs. Hess testified that the exposed terrazzo floor was "very wet" covered with "maybe a quarter, maybe an eighth of an inch of rain." (D.I. 52 at A-38.) Mr. George Raibeck, the Talleyville Post Office Station Manager, testified that the floor was only slightly wet, like a smear mark. (D.I. 53 at B-84.) The Court finds Mr. Raibeck's testimony to be more credible since it is difficult to believe that a quarter inch of rain would go unnoticed by all but Mrs. Hess until after she fell.

10. Paul Kutch, the Talleyville Post Office custodian, had mopped the outer lobby's floor on the morning of the accident, but did not mop the outer lobby again that day. (D.I. 52 at A-81.) Raibeck testified that he inspected the floor of the outer lobby approximately every half hour on the date of the accident and decided that the floors were not wet enough to require additional mopping. (D.I. 53 at B-74 to 75.)

11. There were no wet floor signs or similar warnings posted in the outer lobby at the time of the accident. (D.I. 52 at A-87 to 88.) The Talleyville Post Office has such signs but Kutch uses them only when wet-mopping the floors in the morning. (Id.)

12. It is common knowledge that terrazzo floors are generally slippery. (D.I. 52 at A-67.) The terrazzo floor in the outer lobby of the Talleyville Post Office has a low static coefficient of friction and is thus slippery even when dry.¹ (Id. at A-50 to 57.) Floors that are slippery when dry become even slipperier when wet. (Id. at A-57.) This is so regardless of the amount of moisture. (Id. at A-67.)

13. The carpets in the outer lobby have been in basically the same configuration since Raibeck began working at the Talleyville Post Office in 1978. (D.I. 53 at B-44 to 45, 79-80.) Neither Raibeck nor Joseph Davis, the Postal Service's Manager of Fleet Operations who investigated the accident, could recall any complaints or prior accidents involving the configuration of the carpets. (D.I. 52 at A-143; 53 at B-45.)

CONCLUSIONS OF LAW

1. Jurisdiction exists in this case by virtue of the Federal Torts Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1965 & 1976), since this action sounds in tort and is based on the alleged negligent conduct of federal employees acting within the scope of their employment. 28 U.S.C. § 1346(b); United States v. DeCamp, 478 F.2d 1188 (9th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 232, 38 L.Ed.2d 158 (1973). This act also serves as a limited waiver of the United States' sovereign immunity. United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976).

2. This Court must apply the law of Delaware to the issues in this case because

the alleged tortious conduct occurred in Delaware. Toole v. United States, 588 F.2d 403, 406 (3d Cir.1978).

3. Mrs. Hess was a business invitee of the United States because she entered the Post Office to transact business there, viz. to purchase stamps and mail letters. DiSabatino Bros. Inc. v. Baio, 366 A.2d 508, 510 (Del.Supr.1976).

4. It is well settled in Delaware that a possessor of property is not an insurer of his business invitees' safety while the invitee is on the property. Robelen Piano Co. v. DiFonzo, 169 A.2d 240, 245 (Del.Supr. 1961); Niblett v. Pennsylvania R.R., 158 A.2d 580, 582 (Del.Supr.1960). Rather, a property possessor's only duty to a business invitee is to exercise reasonable care.

The Delaware Supreme Court has set forth this standard of care as follows: A possessor of property who invites others onto his property to conduct business must exercise due care to keep his property in a reasonably safe condition and warn of any unreasonable risks which he knows about, or with the exercise of reasonable care would have known about, and which the other would not be expected to discover for himself. DiSabatino, 366 A.2d at 510; Hamm v. Ramunno, 281 A.2d 601, 603 (Del.Supr.1971); Robelen Piano Co., 169 A.2d at 244 (citing the Restatement (Second) of Torts § 343 (1965)).

5. Mrs. Hess contends that this general standard of care gives way to a more specific, higher standard when the place of injury is a store or its equivalent. (D.I. 55 at 5-6.) According to Mrs. Hess, this higher standard, developed by the Delaware Supreme Court in Robelen Piano and elaborated on in Howard v....