McHale v. Westcott

• Citation: 893 F. Supp. 143
• Decision Date: 19 July 1995
• Docket Number: Civ. A. No. 93-CV-915.
• Parties: Louise McHALE and James McHale, Plaintiffs, v. Alexandra WESTCOTT and United States of America, Defendants. Alexandra WESTCOTT, Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant.
• Court: U.S. District Court — Northern District of New York

893 F. Supp. 143

Louise McHALE and James McHale, Plaintiffs, v. Alexandra WESTCOTT and United States of America, Defendants.

Alexandra WESTCOTT, Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant.

Civ. A. No. 93-CV-915.

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

July 19, 1995.

COPYRIGHT MATERIAL OMITTED

Williamson, Clune & Stevens, Ithaca, NY, for plaintiffs (Robert J. Clune, of counsel).

The Pinnisi Law Firm, Ithaca, NY, for defendant Alexandra Westcott (Michael D. Pinnisi, of counsel).

Thomas J. Maroney, U.S. Atty., N.D.N.Y., Syracuse, NY, for the U.S. (William F. Larkin, Asst. U.S. Atty., of counsel).

MEMORANDUM DECISION AND ORDER

POOLER, District Judge.

INTRODUCTION

In this personal injury action involving a United States Post Office in Franklin, New York, defendant United States of America (the "government") has moved for summary judgment against plaintiffs Louise and James McHale. Westcott has moved for summary judgment against the McHales and for indemnification against the government. In addition to opposing the motions for summary judgment, the McHales have cross-moved against the government for payment of their expert witness fee. Because I find that plaintiffs failed to establish a prima facie case for negligence or otherwise raise a material issue of fact, I grant defendants' motions for summary judgment and dismiss the complaint. Westcott's cross-motion seeking indemnification from the government is dismissed as moot. The government's cross-claim against Westcott seeking indemnification also is dismissed as moot. Finally, plaintiffs' motion against the government for payment of expert witness fees is granted.

BACKGROUND

Although the procedural history of this litigation is somewhat complicated, the underlying facts of the action are simple.¹ Plaintiff Louise McHale was injured on September 15, 1992, when she fell on the steps of the U.S. Post Office in Franklin, New York. The accident took place as she was leaving the post office between 2 p.m. and 2:30 p.m. on a dry, sunny day. Although the stairs had a railing, Mrs. McHale does not recall whether she used the railing when she fell. Mrs. McHale did not notice any objects or defects on the steps that may have contributed to her fall. The stairs and railing are approximately 40 years old and unmodified by either defendant. The property owner testified in her deposition that she never received any complaints or requests to repair concerning the stairs. Postmaster Beverly Jackson testified that she received no complaints about the stairs during her tenure of March 1984 through August 1992. Ms. Jackson's successor also received no complaints about the stairs until the time of Mrs. McHale's accident.

The post office building currently is owned by defendant Westcott, who purchased the property in 1980. Since 1958, the government leased this space for a post office, and it currently pays rent of $220 per month. Westcott also owns and leases an apartment located above the post office. A lease between Westcott and the government dated June 1, 1987, states in relevant part:

The Lessor shall, except as otherwise specified and except for damage resulting from the act or negligence of Postal Service agents or employees, maintain the demised premises in good repair and tenantable condition. If the leased premises or any part thereof become unfit for use for the purposes for which leased, the Lessor shall put the same in satisfactory condition, as determined by the Postal Service, for the purposes for which leased. If Lessor fails to make repairs or otherwise restore the premises to tenantable condition within a reasonable time after receipt of notice from the Contracting Officer, the Postal Service shall have the right to perform the work, by contract or otherwise, and withhold the cost thereof from payments due or to become due under this contract.

General Conditions to Short Form Lease, ¶ 8. The Short Form Lease also states that "Lessor, as part of the rental consideration shall furnish the following utilities, services and equipment: Water & sewerage service, maintenance, private toilet facilities, snow removal and taxes."

Mrs. McHale commenced a personal injury action on May 20, 1993, against defendant Westcott in New York State Supreme Court, Tompkins County. After receiving a third-party summons and complaint from Westcott on July 6, 1993, the government removed the action to federal court on July 9, 1993, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. The McHales filed an amended complaint on February 28, 1994, in which both Westcott and the government are named defendants.² The McHales previously had filed administrative claims with the U.S. Postal Service regarding the accident. In the amended complaint, Mrs. McHale demanded $200,000 for her injuries against both defendants, and Mr. McHale asserted a loss of consortium claim and demanded $50,000 against both defendants. On April 8, 1994, the government interposed a cross-claim against Westcott for indemnification.³

The parties completed discovery. The government and Westcott each has moved for summary judgment dismissing plaintiffs' complaint because it fails to raise an issue of fact regarding negligence or proximate cause. In the alternative, Westcott has moved for summary judgment on her third-party complaint against the government and seeks indemnification based on the language of their lease agreement. Finally, plaintiffs have moved against the government for payment of expert witness fees pursuant to Fed. R.Civ.P. 26(b)(4)(C). Oral argument on the motions took place on February 21, 1995.

DISCUSSION

I. Summary Judgment Standard

The standard for summary judgment is well settled. Summary judgment shall enter if, when viewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456-58, 112 S.Ct. 2072, 2077, 119 L.Ed.2d 265 (1992). A party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). If the movant satisfies this initial burden, then the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of fact exists. Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir.1993). The nonmovant must do more than present evidence that is merely colorable, conclusory, or speculative, and must present "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The nonmovant must do more than show "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

II. Negligence Cause of Action

The government and Westcott both contend that they are entitled to summary judgment against plaintiffs because the McHales failed to establish the prima facie elements of their negligence claim. Specifically, defendants argue there is no proof that either the government or Westcott had actual notice of any defect in the post office stairs. They further argue that if a latent structural defect existed in the stairs, then they lacked constructive notice of the defect. In the alternative, defendants claim that the deposition testimony of Mrs. McHale and plaintiffs' expert, Mr. Gomes, raises no issue of fact regarding the proximate cause of Mrs. McHale's fall. Plaintiffs respond that defendants had notice of the longstanding defect in the stairs by virtue of their regular inspections of the post office. The McHales also argue that the opinion of their expert that a structural defect in the stairs caused Mrs. McHale's fall is sufficient evidence to raise a question of fact.

A. Prima Facie Case

Pursuant to the Federal Tort Claims Act, I apply the law of the state in which the accident occurred, which of course is New York. 28 U.S.C. § 1346(b). Under New York law, a landowner must maintain its property in a reasonably safe condition in view of all the circumstances, taking into account the foreseeability of use and the possibility of injury resulting from that use. Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 568, 352 N.E.2d 868 (1976). The essential elements of a negligence claim thus are that the landowner controls the property, that a defect exists, and that the defect causes plaintiff's injuries. Turrisi v. Ponderosa, Inc., 179 A.D.2d 956, 578 N.Y.S.2d 724, 726 (3d Dep't 1992). Because the issue of control is disputed between Westcott and the government in their indemnification claims, I focus here on the elements of defect and proximate cause. The plaintiff must introduce adequate evidence on each element of its negligence action in order to present a case "sufficient in law to support a favorable jury verdict" and thus avoid summary dismissal. Basso, 386 N.Y.S.2d at 568, 352 N.E.2d at 873.

Attendant with the defect element is the issue of notice to defendants. In order to impose liability on a defendant, there first must be evidence "tending to show the existence of a dangerous or defective condition and that defendant either created the condition or had actual or constructive knowledge of it." Lowrey v. Cumberland Farms, Inc., 162 A.D.2d 777, 557 N.Y.S.2d 689, 690 (3d Dep't 1990); see also Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 472 N.Y.S.2d 368, 371 (1st Dep't), aff'd, 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612 (1984). A defendant has actual notice of a defect if he created the condition or received reports of it such that he has actual knowledge of the defect's existence. See Torri v. Big V of Kingston, Inc., 147...