Katrensky v. U.S.

• Decision Date: 23 July 2010
• Docket Number: Civil Act. No. 3:09cv30-CSC
• Citation: 732 F.Supp.2d 1194
• Parties: Irene & John KATRENSKY, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Alabama

732 F.Supp.2d 1194

Irene & John KATRENSKY, Plaintiffs,

v.UNITED STATES of America, Defendant.

Civil Act. No. 3:09cv30-CSC.

United States District Court,

M.D. Alabama,

Eastern Division.

July 23, 2010.

Karen Schwab Benefield, Karen S. Benefield, LLC, Eufaula, AL, Nancy Marie Kirby, Prattville, AL, for Plaintiffs.

MEMORANDUM OPINION

CHARLES S. COODY, United States Magistrate Judge.

I. INTRODUCTION

Plaintiffs Irene and John Katrensky seek compensatory and punitive damages against the defendant United States of America for personal injuries Mrs. Katrensky sustained when she slipped and fell while entering the United States Veterans Hospital in Tuskegee, Alabama. The plaintiffs allege that the United States, in their operation of the Veterans Hospital, acted negligently and wantonly in failing to maintain its premises in a reasonably safe condition. They further allege that the defendant failed to properly train, inspect or warn the plaintiffs of a dangerous condition. John Katrensky also brings a loss of consortium claim.

Pursuant to 28 U.S.C. § 2679(d)(1), the United States was substituted as the defendant for the state law tort claims. Because the United States has been substituted as a party defendant with respect to the tort claims, the Katrenskys' exclusive remedy against the United States is pursuant to the Federal Tort Claims Act. See28 U.S.C. § 2679.¹ The court has jurisdiction of the plaintiffs' claims pursuant to the jurisdictional grant in 28 U.S.C. § 1346(b). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to a United States Magistrate Judge conducting all proceedings in this case and ordering the entry of final judgment.

This case is now pending before the court on the defendant's motion to dismiss or in the alternative, motion for summary judgment (doc. # 30).² The plaintiffs have responded to the defendant's motion (doc. # 38). After carefully reviewing the defendant's motion for summary judgment, the plaintiffs' response to the motion and the supporting and opposing evidentiary materials, the court concludes that the motion is due to be granted.

II. SUMMARY JUDGMENT STANDARD

Under Fed. R. Civ. P. 56(c) summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).³ The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The movant may meet this burden by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-324, 106 S.Ct. 2548. If the movant succeeds in demonstrating the absence of a material issue of fact, the burden shifts to the non-movant to establish, with evidence beyond the pleadings, that a genuine issue material to the non-movant's case exists. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); see also Fed. R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations ordenials of [his] pleading, but [his] response ... must set forth specific facts showing that there is a genuine issue for trial."). What is material is determined by the substantive law applicable to the case. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute of material fact "is 'genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505 (1986). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the non-movant must present "affirmative evidence" of material factual conflicts to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. If the non-movant's response consists of nothing more than conclusory allegations, the court must enter summary judgment for the movant. See Harris v. Ostrout, 65 F.3d 912 (11th Cir.1995); Peppers v. Coates, 887 F.2d 1493 (11th Cir.1989). However, evidence presented by the non-movant must be believed and all justifiable inferences must be drawn in favor of the non-movant.⁴Anderson, 477 U.S. at 255, 106 S.Ct. 2505. After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). With these principles of law in mind, the court will determine now whether summary judgment is appropriate should be granted.

III. DISCUSSION

A. FACTS ⁵

The facts are simple and undisputed. On June 29, 2005, John Katrensky had an 8:00 a.m. podiatry appointment at the United States Veterans Hospital in Tuskegee, Alabama. (Dep. John Katrensky at 19, 22). When Irene and John left their house around 5:00 a.m., it was raining. (Dep. Irene Katrensky at 24; Dep. John Katrensky at 20). However, when they arrived at the hospital, it was only misting. (Dep. Irene Katrensky at 24). Irene parked in the side parking lot, and she and John entered the hospital at approximately 7:00 a.m. ( Id.) There was a mat at the entrance of the hospital. ( Id. at 27). Irene and John entered the hospital and walked down the hallway to the lobby. ( Id. at 25). Neither Irene nor John noticed anything on the floor at that time. (Dep. John Katrensky at 26)

Between 8:00 a.m. and 8:15 a.m., Irene left John in the lobby to go to the car to get John a bottle of water. ( Id. at 26; Dep. John Katrensky at 25). When Irene reentered the hospital, to dry her feet, she dragged them across the mat. (Dep. Irene Katrensky at 27). She took two steps on the mat, and when she stepped off the mat, she slipped and fell on the floor. ( Id.). According to Irene, she did not see water or any other substance on the floor. ( Id. at 28).

After she fell, an unknown patient and a staff member helped Irene into a wheelchair, and she was taken to the emergency room. ( Id. at 13). While Irene did not see any water on the floor before she fell, when she got to the emergency room sherealized her pants were wet. ( Id. at 32-33, 37, 42). X-rays revealed a broken left wrist. ( Id. at 33).

The plaintiffs filed suit on January 13, 2009.

B. FEDERAL TORT CLAIMS ACT and APPLICABLE LAW

The plaintiffs' claims against the United States are barred by the doctrine of sovereign immunity except as to those tort claims for which Congress has waived sovereign immunity and granted consent for the United States to be sued. Under the Federal Tort Claims Act ("FTCA"), Congress waived sovereign immunity and granted consent for the United States to be sued for acts committed by any "employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). Consequently, the only claims remaining are those tort claims under the FTCA.

Pursuant to the FTCA, liability is determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). See also Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir.2001).

[T]he FTCA was designed "to provide redress for ordinary torts recognized by state law." Id. Indeed, our court has squarely addressed this issue, holding that unless the facts support liability under state law, the district court lacks subject matter jurisdiction to decide an FTCA claim. Lawrence v. Dunbar, 919 F.2d 1525, 1528 (11th Cir.1990) (per curiam).

Ochran, 273 F.3d at 1317. Thus, Alabama tort law applies. See Stone v. United States, 373 F.3d 1129, 1130 (11th Cir.2004).

C. THE LAW OF PREMISES LIABILITY

It is undisputed that Irene was an invitee of the defendant. Thus, the defendant owed Irene, "a duty to exercise ordinary and reasonable care to keep the premises in a reasonably safe condition." Perry v. Macon Cnty. Greyhound Park, Inc., 514 So.2d 1280, 1281 (Ala.1987). See also Terrell v. Warehouse Groceries, 364 So.2d 675, 675 (Ala.1978). "The owner of the premises, however, is not an insurer of the safety of his invitees, and the fact that the plaintiff fell and was injured raises no presumption of negligence." Perry, 514 So.2d at 1281. See also Greer v. Eye Foundation, Inc., 286 Ala. 63, 237 So.2d 456, 459 (1970); Riverview Reg.'l Med. Ctr., Inc. v. Williams, 667 So.2d 46, 48 (Ala.1995); Brown v. Autry Greer & Sons, Inc., 551 So.2d 1049, 1050 (Ala.1989). The plaintiffs bear the burden of "proving that the defendant breached its duty to exercise ordinary and reasonable care and failed to keep its premises in a reasonably good condition." Greer, 237 So.2d at 459.

Alabama law is well established that rain water cases are unequivocally distinct from other slip and fall cases. See Gulas v. Ratliff, 283 Ala. 299, 216 So.2d 278, 281 (1968) ("A fall caused by snow or rain is distinguishable from a fall resulting from some other object as is usual in a slip and fall case."); Terrell, 364 So.2d at 677; Wal-Mart Stores, Inc. v. White, 476 So.2d 614, 616 (Ala.1985).

The law in a case like this has long been settled. The plaintiff was a business invitee of the defendants and, as such, the defendants have the duty of exercising ordinary and reasonable care to keep the premises in

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