Mooney v. United States

• Decision Date: 18 October 1985
• Docket Number: No. 82-636-L.,82-636-L.
• Parties: David J. MOONEY v. UNITED STATES of America, the United States Postal Service, an agency of the United States of America.
• Court: U.S. District Court — District of New Hampshire

619 F. Supp. 1525

David J. MOONEY v. UNITED STATES of America, the United States Postal Service, an agency of the United States of America.

No. 82-636-L.

United States District Court, D. New Hampshire.

October 18, 1985.

Mark S. Gearreald, Engel & Morse, Exeter, N.H., for plaintiff.

Office of the U.S. Atty., Concord, N.H., for defendant.

FINDINGS OF FACT AND RULINGS OF LAW

LOUGHLIN, District Judge.

This action arises under the Federal Tort Claims Act, 28 USC §§ 1346 (b), 2671 et seq. The plaintiff's date of birth is March 20, 1920. He is a widower and has five children. He was member of the United States Navy from June 6, 1942 until October 26, 1962. Upon his discharge from the Service, he was an employee at the Portsmouth Navy Yard for approximately nine years. On January 8, 1981 he had written a letter to his son, a member of the United States Army stationed in Korea. On that date at or about 3:00 P.M. he went into the Exeter Post Office. It had snowed the prior evening or in the early morning of January 8, 1981. The plaintiff was standing in line waiting to purchase stamps to mail the letter to his son when he went to step ahead. The next thing that he realized he was on his back. As a result of his fall, he injured his right hip and right shoulder.

He was taken to the Exeter Hospital by ambulance and treated by Dr. Edward W. King, an orthopedic surgeon. He suffered a fracture to his right femur and through open reduction, and an internal fixation, the fracture was taken care of. He was also put in a Buck's traction in order to immobilize the leg. During the operation screws were used to set the fracture and he was discharged from the hospital on January 19, 1981. He also had injury to the rotator cup of the right shoulder. He was subsequently re-admitted to the Exeter Hospital on January 29, 1982 to have the screws removed from his leg and he was discharged on January 31, 1982.

Dr. King testified that he suffered a permanent partial injury of 5% to his right leg and a similar disability to his right shoulder. It was also the opinion of Dr. King that the shoulder which had previously been injured in 1975 or 1976 was further exacerbated by the injury of January 8, 1981.

Lillian Cassier was a patron or customer of the Exeter Post Office during the mid-morning of January 8, 1981. Upon walking into the lobby of the Post Office one of her feet slipped and she noted that the floor was wet and slushy. This was about ten o'clock in the morning. She had no recollection one way or the other of whether there was a rug in the lobby area or any signs warning customers that the floor was wet.

Patrick Scanlon, also from Exeter, New Hampshire testified. He is a Post Office employee and has been for the last 7½ years. He is not employed at the Exeter Post Office but at the Manchester Post Office. On January 8, 1981 he was standing in line at the service window and the plaintiff was to the rear standing next to him. Mr. Scanlon felt something strike his right leg and it was the plaintiff who subsequently fell to the floor.

During the fall and winter of 1980, the plaintiff was seeking employment. As a result of this, he was interviewed by Bernard Cool of the New Hampshire Department of Employment Security. Due to Cool's efforts, Mooney was referred to several jobs, one of which was a custodial type job at the Indian Head Bank. A job opportunity was also available at Tyco. The hourly wage was in the vicinity of $4.00 an hour. Cool considered Mooney a good applicant.

Defendant's manual designated that during wet weather the floor should be damp mopped and safety mats layed out. This was not done on the date of the accident.

Norman T. Fecteau was the postmaster on January 8, 1981 and he saw the plaintiff on the floor. The plaintiff appeared to be in pain. In his accident report, Fecteau stated that the floor had a light water content.

It had snowed the night before and the custodian had cleaned the steps leading to the Post Office at 6:00 A.M., January 8, 1981.

The Post Office had signs warning of wet floors which were not put out on the date of the accident. Photographs were taken right after the accident and have been entered into evidence as exhibits. When floors were wet, the policy was to damp mop and then put out the mats.

Patricia Schamberger was in her first week of employment and present when the plaintiff was injured. Her hours were from 2:00 P.M. to 6:00 P.M. and she was a janitress.

According to her schedule, she was to mop the floor at 4:00 P.M.. The accident occurred between 3 and 3:30 P.M.

She testified that the walk leading into the Post Office was very clean, but the lobby was damp and dirty. The wetness of the floor was due to the tracking into the lobby by patrons of the Post Office.

She thought she saw the plaintiff fall, her recollection was that he was wiping the slush off his feet before he fell and the fall was a hard one.

In her opinion, she saw no reason to put out the signs.

Donald Wilson, an industrial engineer from Florida testified relative to Terrazo ceramic, the material that the lobby floor was made of which he stated was foreseeable as being hazardous. The first time that he examined the floor was August 21, 1985. He was first contacted to be a witness in the case in February, 1985.

John M. Hallinan, a postal employee at the Exeter Post Office on January 8, 1981 presently an employee at the Portsmouth Post Office saw the plaintiff after he fell. Plaintiff was dazed, on his left side and in pain. The floor was damp, but without snow or slush on it. Hallinan took the photographs.

The court is not specifically ruling on plaintiff's 125 requests or defendant's 116 requests, which total 241 requests, as the important and relevant facts are incorporated into this opinion. Fed.R.Civ.P. 52; United States v. Forness, 125 F.2d 928 (2d Cir.1942), cert. denied, 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764 (1942). See also Concord General Ins. Co. v. Haynes, 110 N.H. 76, 79, 260 A.2d 99 (1969).

The plaintiff has the burden of proving each element of his cause of action by a preponderance of evidence. Zellers v. Chase, 105 N.H. 266, 197 A.2d 206 (1964).

State Law determines issues of liability in actions brought under the Federal Torts Claims Act, 28 U.S.C. § 2674. Brooks v. United States, 695 F.2d 984 (5th Cir.1983); Harrigan v. United States, 63 F.R.D. 402 (D.C.Pa.1974); Loney v. McPhillips, 268 Or. 378, 521 P.2d 340 (1974).

Under New Hampshire law, a possessor of real estate is subject to liability for harm caused to business invitees upon the premises, if the harm results either from the possessor's failure to carry on its activities with reasonable care or from its failure to remedy or to give warning of a dangerous condition of which it knew or in the exercise of reasonable care should know. Partin v. A & P Tea Co., 102 N.H. 62, 63-64, 149 A.2d 860 (1959). See Pridham v. Cash and Carry Building Center, Inc., 116 N.H. 292, 359 A.2d 193 (1976).

The United States is liable in a negligence action in the same manner and to the same extent as a private individual under like circumstances but shall not be liable for interest prior to judgment or for punitive damages. 28 U.S.C. § 2674.

The proximate cause of the plaintiff's slip and subsequent fall was the negligence of the defendant's employee in allowing the condition of the wet floor to exist and their failure to take remedial action by drying it out by mopping, having mats in place and failure to have warning signs on the premises.

N.H. RSA 507:7a provides,

Comparative Negligence. Contributory negligence shall not bar recovery in an action by any plaintiff, or his legal representative, to recover damages for negligence resulting in death, personal injury, or property damage, if such negligence was not greater than the causal negligence of the defendant, but the damages awarded shall be diminished, by general verdict, in proportion to the amount of negligence attributed to the plaintiff; provided that where recovery is allowed against more than one defendant, each such defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The burden of proof as to the existence or amount of causal negligence alleged to be attributable to a party shall rest upon the party making such allegation.

The court finds that the plaintiff just prior to falling was in the process of or did lift one foot on the wet floor. The court finds that the proportion of negligence attributed to the plaintiff was 20 percent (20%).

Damages that are recoverable are determined by the law of New Hampshire. 28 U.S.C. § 2674. Components and measures of damages in Federal Tort Claims Act cases are taken from the law of the state where the tort occurred. Ferrero v. United States, 603 F.2d 510, reh'g denied, 606 F.2d 321 (5th Cir.1979).

The plaintiff received painful and serious injuries to his right hip particularly and a pre-existent injury to his right shoulder was exacerbated by the accident. As a general rule if a second injury or an aggravation of a prior one is considered to be a direct consequence or a natural result of the original injury, the original wrongdoer is held liable for the entire damage. Armstrong v. Bergeron, 104 N.H. 85, 86, 178 A.2d 293 (1962).

His most serious injury was an intero-chanteric fracture of his right hip. Plaintiff was hospitalized on two separate occasions and the evidence is uncontroverted that he suffered a great deal of pain, both physical and mental.

The evidence is also fairly pristine that the plaintiff did as a result of the accident incur a diminution in earning capacity. Ellsworth v. Watkins, 101 N.H. 51, 132 A.2d 136 (1957).

Plaintiff's gross earnings for the years 1981, 1982 and 1983 were $9,349.00. Conservatively, evidence was...