Kertz v. United States, Case No. 2:12-cv-22-FtM-29SPC
| Decision Date | 10 April 2013 |
| Docket Number | Case No. 2:12-cv-22-FtM-29SPC |
| Parties | CAROL G. KERTZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on The United States of America's Dispositive Motion for Summary Judgment (Doc. #37) filed on February 28, 2013. Plaintiff filed a response on March 14, 2013. (Doc. #39.) For the reasons set forth below, the motion is denied.
Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if there is sufficient evidence such that a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it may affect the outcome of the suit under governing law. Id.
The moving party bears the burden of identifying those portions of the pleadings, depositions, answers to interrogatories,admissions, and/or affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836, 840 (11th Cir. 2000). In order to avoid the entry of summary judgment, a party faced with a properly supported summary judgment motion must come forward with extrinsic evidence, i.e., affidavits, depositions, answers to interrogatories, and/or admissions, which are sufficient to establish the existence of the essential elements to that party's case, and the elements on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. at 322; Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999).
In ruling on a motion for summary judgment, the Court is required to consider the evidence in the light most favorable to the nonmoving party. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000); Jaques v. Kendrick, 43 F.3d 628, 630 (11th Cir. 1995). The Court does not weigh conflicting evidence or make credibility determinations. Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d at 1225. "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Tullius v. Albright, 240 F.3d 1317, 1320 (11th Cir. 2001)(citing Clemons v. Dougherty Cnty., 684 F.2d 1365, 1369 (11th Cir. 1982)). However, "[t]he mereexistence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).
The following facts are undisputed and taken in the light most favorable to the plaintiff, the non-moving party:
On December 1, 2010, during her lunch break, plaintiff Carol G. Kertz (Kertz or plaintiff) visited the United States Post Office located at 1200 Goodlette Road in Naples, Florida. She parked in either the second or third parking space to the left of the pedestrian ramp. After mailing her package, Kertz proceeded back to her car and stepped down from the curb over a concrete parking block painted in "caution yellow" as she searched through her purse. Unbeknownst to plaintiff, a piece of rebar was exposed from the concrete parking block. Plaintiff tripped over the rebar and sustained severe injuries. As a result, Kertz filed an Amended Complaint against the United States of America (government or defendant) asserting a claim for negligence arising from defendant's alleged breach of the duty to maintain the premises and failure to warn. (Doc. #33.)
Because the United States of America is a named defendant, plaintiff's claim can only be advanced under the Federal TortClaims Act (FTCA), 28 U.S.C. § 2671, et seq.1 The FTCA gives the district courts exclusive jurisdiction over civil actions against the United States for personal injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimaint in accordance of the law of the place where the act or omission occured." 28 U.S.C. § 1346(b)(1). The parties agree, and the law is clear, that Kertz's negligence claim under the FTCA is governed by Florida law because the alleged tortious act took place in Florida. See, e.g. Stevens v. Battelle Memorial Institute, 488 F.3d 896, 899 n.3 (11th Cir. 2007) (); Miles v. Naval Aviation Museum Foundation, Inc., 289 F.3d 715, 722 (11th Cir. 2002) (); Kelly v. Serna, 87 F.3d 1235, 1240 (11th Cir. 1996) ().
Under Florida law, a premises owner owes two duties to a business invitee: "(1) to take ordinary and reasonable care to keep its premises reasonably safe for invitees; and (2) to warn ofperils that were known or should have been known to the owner and of which the invitee could not discover." Delgado v. Laundromax, Inc., 65 So. 3d 1087 (Fla. 3rd DCA 2011).2 The Amended Complaint alleges that the government breached both of these duties. The Government seeks summary judgment on the following bases: (a) the defendant did not have actual or constructive notice of the injury causing condition; (b) there is no evidence defendant breached its duty to maintain the premises; and (c) the exposed rebar was not a hidden dangerous condition. Plaintiff argues to the contrary.
The government argues that there is no evidence that it had actual or constructive notice of the exposed rebar. Specifically, the government avers that there is no evidence as to how long the rebar had been exposed and therefore plaintiff cannot demonstrate any form of notice. In addition, the government asserts that it had an "extremely diligent inspection procedure" which negates any constructive knowledge because it demonstrates that the United States Post Office exercised reasonable care to look for, and to discover, dangerous conditions. (Doc. #37, p. 16.) The inspection procedure provided that three separate postal employees inspected the parking lot every day. First, Edward McCall (McCall), a Naples Post Office custodian, would inspect the parking lot between sixo'clock and seven-thirty in the morning. Later in the morning, but before the post office opened, the Post Master, Richard Barber (Postmaster Barber), performs a visual inspection of the facility, including the parking lot. In the afternoon, maintenance custodian Lyndal Coyler (Coyler) performs a parking lot inspection. Defendant argues that this inspection procedure occurred the day prior to, and the day of, plaintiff's accident. (Id. at pp. 16-17.) Plaintiff argues to the contrary.
A slip-and fall case in Florida requires either actual or constructive knowledge of the condition causing the slip and fall. Florida statute 768.0755 (2010)3 provides that:
The Court agrees with defendant that plaintiff has failed to put forth any evidence that defendant had actual knowledge that the rebar that caused Kertz to fall had become exposed. Other than plaintiff's conclusory allegation that defendant has had actual knowledge for "literally decades", "the last 20 or 30 years", and "at least 20 years" (doc. #37, pp. 9, 12), plaintiff provides no evidence that any member of the United States Post Office had seen the exposed rebar that caused Kertz to fall prior to her accident. The Court finds, however, that Kertz has provided sufficient evidence that raises a genuine issue of material fact as to whether defendant had constructive knowledge of the condition.
The record does not conclusively demonstrate that the government exercised ordinary care through its inspection procedure. There are several factual ambiguities as to whether an inspection procedure existed at the time of plaintiff's accident and whether or not the inspection procedure was carried out as the government suggests. No party asserts that the Naples Post Office had a written inspection policy for three daily inspections of the parking lot. To the extent an unwritten policy existed for three daily inspections, plaintiff has provided evidence which suggests that this policy was not put into place until December 1, 2010, the date plaintiff fell.4 This calls into question whether theparking lot was inspected by Coyler the afternoon before plaintiff's fall as defendant suggests.
The government produced a daily inspection log by Postmaster Richard Barber as evidence of the daily inspection procedure. (Doc. #39-9, p. 2.) This, too, does not demonstrate that any inspections occurred prior to December 1, 2010, as the inspection log covers only the month of December 2010. Further, the log demonstrates only that Barber inspected the "exterior...
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