Merritt v. United States
| Decision Date | 15 March 2022 |
| Docket Number | Case No. 5:18-cv-200 |
| Citation | 592 F.Supp.3d 340 |
| Parties | Bruce E. MERRITT, Plaintiff, v. UNITED STATES of America, Ethan Darling, and Gloria Hammond, Defendants. |
| Court | U.S. District Court — District of Vermont |
Bruce E. Merritt, Hartland Four Corners, VT, Pro Se.
Jason M. Turner, AUSA, United States Attorney's Office District of Vermont, Burlington, VT, for Defendants United States of America.
Susan J. Flynn, Esq., Clark Werner & Flynn, P.C., Burlington, VT, for Defendant Gloria Hammond.
Kristin C. Wright, Esq., Pietro J. Lynn, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, VT, for Defendant Ethan Darling.
ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Brace Merritt, representing himself, has filed suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1) against the United States of America, Gloria Hammond, and Ethan Darling for damages sustained in a fall in the Hartland Four Corners United States Post Office parking lot on December 1, 2015. The United States moved to dismiss Plaintiff's claims asserting sovereign immunity and arguing that Plaintiff had failed to state a plausible claim for relief. (Docs. 46, 101.) On June 26, 2020, the court granted in part and denied in part the United States’ motion to dismiss, ruling that Plaintiff could proceed with his claims for failure to supervise the parking area, failure to maintain the parking area, negligence, and failure to warn of hazards. (Doc. 111 at 19.)1
In October 2021, all three Defendants moved for summary judgment. (Docs. 153, 154, 155.) In support of its motion for summary judgment, the United States argues that Plaintiff's claims are barred by sovereign immunity under the FTCA or are otherwise without merit. (Doc. 153.) Defendants Ethan Darling and Gloria Hammond invoke the "Storm in Progress" rule, arguing that Defendants had no duty to keep the premises free of hazards until the storm had ended. (Doc. 153 at 4–8; Doc. 154.)
Plaintiff responds that the court should find that Defendants had a duty to maintain a safe, ice-free parking lot at the Post Office or to warn visitors of hazards, regardless of the ongoing nature of the storm. Plaintiff further argues that Defendants breached this duty by failing to sand or salt the parking lot on the day of the fall. (Docs. 156, 157, 158.)
The four remaining claims against the United States are (1) failure to supervise the parking area; (2) failure to maintain the parking area; (3) failure to warn; and (4) negligence. (Doc. 111 at 19.) The claims against Mr. Darling are: (1) failure to maintain (Doc. 97 ¶ 19(a)); (2) failure to provide salt and sand to the Post Office (id. ¶ 19(e)); and (3) negligence. (Id. ¶ 19.) Last, the claims against Ms. Hammond are: (1) failure to maintain gutters (Doc. 97 ¶ 17(a)–(b)); (2) failure to professionally grade the parking area (id. ¶ 17(d)); and (3) negligence. (Id. ¶ 17.)
I. Facts
The following facts are undisputed unless noted otherwise.
On the morning of December 1, 2015, Mr. Merritt checked the weather report on his computer, which anticipated "a possibility of drizzle and freezing rain depending on location." (Doc. 154-6 at 5–6.)2 He drove to work. Around 3:00 p.m., Mr. Merritt decided to leave his worksite early to lessen the risk of returning home on icy roads as forecasted. (Id. at 8–9, 14.) After leaving work, he drove to the Hartland Four Corners Post Office. (Id. at 9.) As Mr. Merritt stepped out of his truck, he slipped and fell on the ground in the Post Office parking lot. (Id. at 9; Doc. 154-4 at 1.) He sustained injuries in the fall. (Doc. 96 ¶ 12.)
An onlooker, Ms. Tanya Blood, observed Mr. Merritt's fall and alerted Ms. Kelly Tancreti, the postal clerk who was working at the Post Office. (Doc. 154-4 at 1; Doc. 153-4 at 2.) Ms. Tancretti then telephoned the Postmaster, Ms. Patricia Courtemanche, to report the incident. (Doc. 153-4 at 36, 45; Doc. 153-5 at 2–3.)
Sometime later, Mark Hampton, a U.S. Postal Service employee, arrived at the Post Office and salted the parking lot with salt he picked up from the nearby Hartland Three Corners Post Office. (Doc. 153-4 at 47; Doc. 154-11 at 4.) Mr. Hampton testified that the parking area was icy when he arrived to sand. (Doc. 154-11 at 8.) The presence of ice in the parking lot is confirmed by the U.S. Postal Service accident report. (Doc. 102-3 ().)
At the time of Mr. Merritt's fall, Defendant Gloria Hammond owned the Hartland Four Corners Post Office building and leased it to the U.S. Post Office. (Doc. 96 ¶ 3; Doc. 99 ¶ 3.) The U.S. Postal Service's lease with Ms. Hammond specified that the U.S. Postal Service was responsible for removal of snow and ice from the parking lot. (Doc. 96 ¶ 4; Doc. 154-2 ¶ 8; Doc. 156-1 ¶ 8; Doc. 158-8 at 12 ().) Ms. Hammond was responsible for removing snow and ice from the roof and for "regular cleaning of any gutters, downspouts, troughs, scuppers, roof drains, etc." (Doc. 158-8 at 8.) The terms of the lease did not specifically require Ms. Hammond to grade the parking lot but did generally impose a duty to maintain the premises "in good repair and tenantable condition." (Doc. 158-8 at 8.) Ms. Hammond broadly denies any obligation to grade the parking area. (See Doc. 99 ¶ 17.) Mr. Darling did not have a written agreement with the U.S. Post Office to grade the parking area. (Doc. 154-8 ¶ 10.)
The U.S. Postal Service entered into a verbal agreement with Defendant Ethan Darling to remove snow and ice from the parking lot "as needed" for the 2015 winter season. (Doc. 154-2 ¶ 9; Doc. 156-1 ¶ 9; Doc. 154-8 ¶ 6.) Mr. Darling stated that he "was expected to use [his] best judgment regarding when to plow and sand the four-space parking lot at the Hartland Four Corners Post Office." (Doc. 154-8 ¶ 15.) Neither Mr. Darling nor the U.S. Postal Service sanded the parking lot the morning of Mr. Merritt's fall.
Mr. Darling lived 3.8 miles from the Hartland Four Corners Post Office. (Doc. 154-8 ¶ 9.) Typically, Mr. Darling would plow the U.S. Post Office parking lot "when there was one inch or more of accumulated snow, and would apply sand if it was icy at my house." (Id. ) On the morning of December 1, 2015, Mr. Darling drove to the Hartland Four Corners Post Office where he inspected the parking lot and decided that there were no icing conditions and that the parking lot didn't need sand at that time. (Doc. 154-9 at 6; Doc. 154-2 ¶ 11; Doc. 156-1 ¶ 11.) Mr. Darling testified that it was "pouring rain," and that "sand would have essentially been pointless in the pouring rain, because it's going to be icy within another five minutes after, depending on the temperature." (Id. ) He did not return to the Post Office until the following morning to sand the parking lot "when the storm was said and done." (Id. at 9–10.)
When Ms. Tancretti arrived for her afternoon shift at the Hartland Four Corners Post Office around 2:30 p.m. on December 1, 2015, she checked the exterior condition of the premises. (Doc. 102-8 at 3.) Ms. Tancretti was "informally aware of the freezing rain conditions by her own personal visual observation of weather conditions and informal conversations with postal customers." (Id. ) Sometime later in the afternoon of December 1, Ms. Courtemanche drove to the Post Office. (Doc. 154-12 at 4.) When she arrived, she noticed that the parking lot was icy. (Id. ) She was unsure whether the parking lot had been sanded because she "would not have been able to tell because everything washed off everywhere." (Id. ) Ms. Tancretti testified that she had never salted or sanded the walkway at the Hartland Four Corners Post Office and that it was not the responsibility of postal clerks to salt or sand, and that there was no sand or salt kept at the Post Office for this purpose. (Doc. 153-4 at 25.)
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). At this stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]he court must draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Put another way, "[s]ummary judgment is appropriate [w]here the record taken as a whole could not lead a rational trier of the fact to find for the [non-movant]." Johnson v. Killian , 680 F.3d 234, 236 (2d Cir. 2012) () (internal citation omitted). However, Hayes v. Dahlke , 976 F.3d 259, 267–68 (2d Cir. 2020) (cleaned up). And although the court "must disregard all evidence favorable to the moving party that the jury is not required to believe," the court credits "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Id.
A document filed pro se is "to be liberally construed." Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). "[A] pro se complaint,...
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