Kaminski v. United States
Decision Date | 03 November 2016 |
Docket Number | Case No. 14–2630–DDC–JPO |
Citation | 218 F.Supp.3d 1251 |
Parties | Charles KAMINSKI, Plaintiff, v. UNITED STATES of America, Defendant. |
Court | U.S. District Court — District of Kansas |
Danny L. Curtis, Danny L. Curtis, PC, Jack T. Hyde, Wagstaff & Cartmell, LLP, Kansas City, MO, for Plaintiff.
Thomas G. Luedke, Office of United States Attorney, Topeka, KS, for Defendant.
Plaintiff Charles Kaminski brings this negligence action against defendant, the United States of America, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 –2680. He seeks to recover damages for injuries which, he contends, he sustained when he fell on ice outside a post office in Bonner Springs, Kansas. This matter is before the court on defendant's Motion to Dismiss Complaint, or in the Alternative, Motion for Summary Judgment (Doc. 75). Plaintiff responded to defendant's motion (Doc. 79), and defendant has filed a reply (Doc. 80). For reasons explained below, the court denies the motion.
The following facts have been stipulated by the parties in the Pretrial Order (Doc. 69), are uncontroverted, or, where controverted, are stated in the light most favorable to plaintiff, the party opposing summary judgment. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
The United States Postal Service's ("USPS") postal facility ("Post Office") in Bonner Springs, Kansas, is located at the intersection of East Second and Cedar Streets. East Second Street borders the Post Office on the northwest side, and Cedar Street borders it on the southwest side. The front of the Post Office runs parallel with Cedar Street. Off-street parking is located on East Second Street. There are four angled parking spaces and each is roughly 45 degrees to the East Second Street side of the Post Office. A public sidewalk runs between the off-street parking area and the northwest wall of the Post Office. The sidewalk is about eight feet wide, with sawcut joints every six feet. The sidewalk slopes at a gradual 1 to 2% from northeast to southwest. The cross slope is negligible.
An off-street parking lot is located behind the Post Office on the northeast side ("the rear parking lot"). The USPS parks its postal service vehicles in the rear parking lot. The Post Office has four downspouts that discharge roof water onto the rear parking lot. Two downspouts carry water from the loading dock canopy and two discharge water from the roof. The downspout closest to the East Second Street sidewalk near the northwest corner of the Post Office building ("the northwest downspout") is approximately three feet from the sidewalk. The northwest downspout discharges water directly onto the rear parking lot. But, sometimes, water from the rear parking lot flows onto the sidewalk.
A nine inch curb separates the rear parking lot from the sidewalk. The rear parking lot slopes generally to the northwest. The elevation of the rear parking lot is about nine inches higher than the East Second Street sidewalk. The curb tapers down flush to the pavement of the rear parking lot about 22 feet from the northwest corner of the building. Water draining from the northwest downspout is intended to follow the nine inch curb on the rear parking lot and then flow across the sidewalk where the level of the rear parking lot and curb meet about eight and a half feet from the downspout.
On Thursday, February 21, 2013, nine and a half inches of snow fell in Bonner Springs, Kansas. No snow fell in the Bonner Springs area on Friday, February 22, 2013. The National Weather Service recorded the following high and low temperatures from February 21, 2013 through February 25, 2013:
Doc. 76–4 at 4.1 At 7:00 a.m. on Sunday, February 24, the National Weather Service recorded seven inches of snow on the ground in Bonner Springs, Kansas. At 7:00 a.m. on Monday, February 25, the National Weather Service recorded five inches of snow on the ground.
On February 25, 2013, around 5:00 a.m., plaintiff left his home and drove to the Post Office to mail some letters. It was cold outside that morning. There was still a lot of snow on the ground from the snowfall a few days earlier. The snow was piled in different areas. The streets had been cleaned somewhat, but were not yet completely cleared of snow. The streets were clean enough for plaintiff to walk in them.
When plaintiff arrived at the Post Office, he parked in one of the off-street parking stalls on East Second Street. Plaintiff saw that the sidewalk outside the Post Office had a path down the middle of it that was wide enough for walking. It looked to plaintiff that the path on the sidewalk was clear of snow. Some snow was piled up along the edge of the path. It ran along the curbing between the sidewalk and the parking area along East Second Street. This snow pile was small enough for plaintiff to step over.
As plaintiff stepped on the sidewalk outside the Post Office, he slipped on ice and fell to the concrete. Plaintiff landed on his elbow and forearm. He described his elbow and forearm as "clunk[ing] really hard when [he] fell down" making a "hard thunk." Doc. 79–13 at 18. But other than having a sore elbow and forearm, plaintiff did not apprehend any serious injuries immediately after his fall.
Plaintiff got up on his hands and knees, and then managed to get up on his feet. He walked to the back of the Post Office to the loading dock. When plaintiff fell, the Post Office had been closed since noon on Saturday, February 23, 2013. But the lobby of the Post Office is open to the public 24 hours a day and available for customers to deposit mail, even when the weather is inclement.
At the loading dock, plaintiff saw USPS employee Matthew Lowe working inside the dock area. Plaintiff told Mr. Lowe that he had fallen on the sidewalk, but that he was okay. Plaintiff suggested to Mr. Lowe that he should treat the ice on the sidewalk so that no one else would fall. Plaintiff did not know if he had fallen on ice that was created by: (1) water that had emptied from the downspouts onto the sidewalk and had frozen, or (2) water from the melting snow piles along the sidewalk that had frozen. Plaintiff did not look at the northwest downspout on the day he fell to determine if any water or ice was coming out of it. After he reported his fall to Mr. Lowe, plaintiff went to his place of employment and worked the entire day.
At the Post Office, Mr. Lowe did not inspect the area where plaintiff fell immediately after he had learned about the fall from plaintiff. Instead, Mr. Lowe unloaded mail from the vestibule area inside the Post Office to clear the area for the truck to unload additional mail. Mr. Lowe performed this task before he went outside the Post Office to clear a path and put salt on the sidewalk.
Plaintiff returned to the Post Office later that day to complain about his fall on the sidewalk. He spoke with Office–In–Charge ("OIC") Roy Sanderson. USPS employees told plaintiff that ice on the sidewalk in this area had been a problem for at least 10 years. But, before plaintiff's fall, USPS had not received any reports of injuries due to ice outside the Post Office.
After his fall, plaintiff continued to do his normal activities. He shoveled snow off of his sidewalk after a snowstorm in late February 2013 that produced more than 10 inches of snow. But later, plaintiff's injuries worsened. He sought medical attention for his injuries for the first time on June 3, 2013. Plaintiff now is restricted in his ability to perform household chores, to lift and rotate his arm, to lift heavy objects, and to work for extended periods of time.
In 2013, the USPS required its employees to report all injuries that occurred to non–USPS employees on Post Office premises. To make a report, a USPS employee must input information into the Employee Health and Safety System ("EHS"). The EHS then generates an accident investigation worksheet—a Form 1700—and an accident report—a Form 1769. The USPS required the manager or supervisor of the employee or operation to report all accidents and occupational injuries and illnesses in EHS within 24 hours.
As described above, plaintiff reported his fall to USPS employee Matthew Lowe almost right after it occurred. Mr. Lowe did not ask plaintiff if he was injured by the fall. But Mr. Lowe testified that plaintiff told him that he was okay. When plaintiff returned to the Post Office later that same day to report his fall to OIC Roy Sanderson, Mr. Sanderson did not ask plaintiff if he was injured by the fall. Mr. Sanderson also did not make an accident report.
Instead, Mr. Sanderson did not submit an accident report about plaintiff's fall until June 11, 2013. Kathreen Bollinger filled out the accident report forms for Mr. Sanderson based on information that Mr. Sanderson provided.Mr. Sanderson did not have any notes or other written documentation about the accident to refer to when he talked to Ms. Bollinger. Mr. Sanderson relied only on his memory when he reported the information to Ms. Bollinger.
The June 11, 2013 Form 1700 accident investigation worksheet lists the accident date as December 21, 2012. It also states: "In December 2012, around the 21st, or the last big snow storm during that month...." Doc. 76–12 at 3. Similarly, the June 11, 2013 Form 1769 accident report provides the date of the accident as December 21, 2012. And, it states that plaintiff's fall occurred "[i]n December 2012, around the 21st, or the last big snow storm during that month...." Doc. 76–13 at 3.Mr. Sanderson recalls that it was " ‘sometime in December,...
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