Pivirotto v. U.S. And, Barylnn Corp.

• Decision Date: 20 February 2018
• Docket Number: Civil Action No. 16-1035
• Parties: MARIANNE PIVIROTTO, Plaintiff, v. UNITED STATES OF AMERICA and, BARYLNN CORPORATION, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

MARIANNE PIVIROTTO, Plaintiff, v. UNITED STATES OF AMERICA and,BARYLNN CORPORATION, Defendants.

Civil Action No. 16-1035

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

February 20, 2018

Magistrate Judge Lisa Pupo Lenihan

ECF No. 35

OPINION

LENIHAN, M.J.

Currently before the Court for disposition is Defendant United States of America's Motion for Summary Judgment pursuant to FED. R. CIV. P. 56. (ECF No. 35). In this action under the Federal Tort Claims Act ("FTCA"), Plaintiff Marianne Pivirotto ("Pivirotto") asserts that she slipped and fell as a result of ice on November 22, 2014, on the sidewalk directly outside of the main entrance to the United States Post Office located at 395 Federal Street, Pittsburgh, PA better known as the Allegheny Station Postal Facility (hereinafter "Allegheny Station" or "post office"). Pivirotto claims she sustained bruising and had to have her arm surgically repaired as a result of her fall. She asserts claims for negligence under the FTCA against the United States for medical expenses; pain and suffering; attorneys' fees; costs; and seeks compensation for all other reasonable costs incurred. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1346.

For the reasons set forth below, the Court will grant Defendant's motion for summary judgment.

I. PROCEDURAL HISTORY

In an administrative tort claim dated October 13, 2015, Pivirotto requested $500,000 in damage from the Postal Service. (ECF Nos. 37 ¶ 44; 44 ¶ 44). The Postal Service denied Pivirotto's administrative tort claim, determining that "an investigation of this matter failed to establish a negligent act or omission on the part of the U.S. Postal Service or its employees." (ECF Nos. 37 ¶ 45; 44 ¶ 45).

On July 13, 2016, Pivirotto filed a complaint naming the United States and Barlynn Corporation as defendants. (ECF No. 1). On November 7, 2016, in accordance with 28 U.S.C. § 636(c)(1), the parties voluntarily consented to having a United States Magistrate Judge conduct all further proceedings in the case. (ECF No. 22). On July 7, 2017, Barlynn Corporation was dismissed with prejudice by the parties' joint stipulation of voluntary dismissal. (ECF No. 42).

On June 16, 2017, the United States filed a motion for summary judgment, (ECF No. 35); brief in support thereof, (ECF No. 36); and a concise statement of material facts, (ECF No. 37). Pivirotto filed her response to the motion for summary judgment, (ECF No. 43); a reply in opposition to the concise statement of material facts, (ECF No. 44); a reply and counterstatement to the concise statement of material facts, (ECF No. 45); and a brief in opposition to the motion for summary judgment, (ECF No. 47). On July 25, 2017, the United States filed a reply brief, (ECF No. 49), and a response to Pivirotto's counterstatement of undisputed facts, (ECF No. 48).

II. RELEVANT FACTS

At daybreak on November 22, 2014, there was no natural accumulation of snow/ice on the ground in Pittsburgh, Pennsylvania. (ECF Nos. 37 ¶ 6; 44 ¶ 6). Pivirotto awoke at approximately 7:00 a.m. and walked out of her house and down the street to mail her bills. (ECF Nos. 45 ¶ 1; 48 ¶ 1). She testified that at that time, there was a light mist but no rain or ice. (ECF Nos. 45 ¶ 1; 48¶ 1).¹ Pivirotto went outside again at approximately 10:00 a.m., to feed the birds and, this time, she noticed no mist, rain, or ice. (ECF Nos. 45 ¶ 2; 48 ¶ 2). Pivirotto testified that she was aware that an ice storm was forecast for that morning and that there was, in fact, a freezing rain advisory in effect for Allegheny County until 2:00 p.m. (ECF Nos. 37 ¶¶ 7, 8; 44 ¶¶ 7, 8). The National Weather Service issues a freezing rain advisory if "light ice accumulation (freezing rain and/or freezing drizzle) is expected but will not reach warning criteria." (ECF Nos. 37 ¶ 9; 44 ¶ 9). The National Weather Service advised to "Expect a glaze on roads resulting in hazardous travel. Slow down and use caution while driving because even trace amounts of ice can be dangerous." (ECF Nos. 37 ¶ 9; 44 ¶ 9).

Christopher Pierce ("Pierce"), the acting manager of the Allegheny Station arrived at work at approximately 4:00 a.m. on November 22, 2014. (ECF No. 45, ¶ 8; 48 ¶ 8). From the time of his arrival until the time he left, around 10:00 a.m., Pierce did not notice and was not told of any adverse weather conditions. (ECF No. 46-2 at 35). Shortly after Pierce left the Allegheny Station, at approximately 10:10 a.m., he hit a slick patch on the roadway and decided to call the post office to instruct them to spread salt. (ECF Nos. 39 ¶ 12; 45 ¶ 9; 44 ¶ 12; 48 ¶ 9). Thomas Ingold ("Ingold"), who was the acting supervisor of the Allegheny Station, answered the phone. (ECF Nos. 45, ¶ 10; 48 ¶ 10). Ingold had arrived at work at approximately 7:00 a.m. and had not noticed and was not told of any adverse weather conditions prior to Pierce's phone call with him. (ECF Nos. 45 ¶ 11; 46-3 at 9-11; 48 ¶ 11).

John Harmon ("Harmon"), Allegheny Station's maintenance person, is typically responsible for salting the walkways; however, on the weekend, the post office's supervisors are responsible for salting.² (ECF Nos. 37 ¶ 15; 44 ¶ 15). The post office is open to the public only on Saturdays between 10:00 a.m. and 12:00 p.m. (ECF No. 46-2, 15). Typically, very few customers come to the post office on Saturday. (ECF Nos. 37 ¶ 16; 44 ¶ 16).

Salt is stored in a locked area and Harmon is responsible for knowing where the keys for the lock are at all times - he is to either have them on his person and bring them down to the post office when called or he is to hide them somewhere at the post office. ECF Nos. 45 ¶ 12, 46-2 at 11-12, 24; 46-3 at 10; 48 ¶ 12). The day Pivirotto fell, the keys were hidden at the post office. (ECF Nos. 45 ¶ 12, 46-2 at 11-12, 24; 46-3 at 10; 48 ¶ 12). When Ingold called Harmon, on November 22, 2014, to find out where the keys were, Harmon did not immediately answer his telephone; however, Harmon did call back a few minutes later. (ECF No. 45, ¶ 13; 48 ¶ 13).

At approximately 11:00 a.m., Pivirotto left her home with her daughter and grandson for the 1.5-mile commute to the post office. (ECF Nos. 45 ¶ 3; 48 ¶ 3).³ The Allegheny Station is a five minute drive from Pivirotto's house. (ECF Nos. 37 ¶ 28; 44 ¶ 28). At no point during the drive did Pivirotto's daughter use her windshield wipers or experience any difficulty navigating the roads. (ECF Nos. 45 ¶ 3; 48 ¶ 3). Shortly after 11:00 a.m., Pivirotto arrived at the post office. (ECF Nos. 45 ¶ 4; 48 ¶ 4).⁴Pivirotto's daughter let her out at the post office's lot's entrance, and Pivirotto walked towards the main entrance to pick up a package for her son-in-law. (ECF Nos. 45 ¶ 4; 46-1 at 19; 48 ¶ 4). Pivirotto slipped and fell directly in front of the main entrance. (ECF Nos. 45 ¶ 5; 48 ¶ 5). She immediately experienced intense pain. (ECF Nos. 45 ¶ 5; 48 ¶ 5). After she had fallen, she noticed a patch of ice on the walkway that was wavy and ripply and about a quarter inch thick. (ECF No. 37 ¶ 37; 44 ¶ 37). In her declaration, Pivirotto explained

I could not get up right away and as I sat I was able to see what made me fall. I had fallen on a patch of ice that was right under the dripline/ roof line of the post office. The ice was bumpy and wavy. There seemed to be one layer at the bottom and then another layer of ice pellets and then a third layer of clear ice that covered the ice pellets. The covered ice pellets made lumps throughout the patch on which I fell. The bumps in the ice were the size of small marbles. The ice was solid without any water underneath the ice.

(ECF No. 46-5 ¶ 8). Pivirotto testified that the only ice she encountered walking into the Allegheny Station was the ice that caused her to fall. (ECF Nos. 37 ¶ 31; 44 ¶ 31). At the time of her fall, the freezing rain had ended. (ECF Nos. 37 ¶ 34; 44 ¶ 34). At least two customers reported slippery conditions before Pivirotto's fall. (ECF No. 38-9).

Ingold was able to find the key. (ECF Nos. 45 ¶ 15; 48 ¶ 15). Around 10:30, Ingold began salting the ramp for the carriers and then proceeded toward the front sidewalk to salt. (ECF Nos. 37 ¶ 21; 44 ¶ 21; 46-3 at 10-11). As he exited through the double doors at the front of the Allegheny Station, Ingold encountered Pivirotto, who had just fallen, walking into the post office. (ECF Nos. 37 ¶ 23; 44 ¶ 23). Pivorotto argues that Ingold did not begin to salt the Federal Street sidewalk until approximately an hour after his supervisor had instructed him to do so. (ECF No. 47 at 7).

Ingold directed Postal Clerk Matt Masur to call 911. (ECF Nos. 37 ¶ 24; 44 ¶ 24). Ingold then proceeded outside to salt the front sidewalk, while Pivirotto sat inside waiting for anambulance. (ECF Nos. 37 ¶ 25, 44 ¶ 25). Ingold indicated that when he walked outside in the front of the building to spread salt, he "couldn't really see" ice but it was "slick". (ECF Nos. 37 ¶ 26; 44 ¶ 26).

Pivirotto's daughter arrived from the parking lot and sat with her. (ECF Nos. 37, ¶ 39; 44 ¶ 39). Pivirotto's daughter picked up the package from the window clerk at approximately 11:07 a.m. (ECF Nos. 37 ¶ 40; 44 ¶ 40). The ambulance arrived at 11:18 a.m. and took Pivirotto to the emergency room. (ECF Nos. 37 ¶ 41; 43 ¶ 41). Pivirotto was diagnosed with a "[l]eft open distal radius fracture" and had surgery to repair the fracture later that same day. (ECF Nos. 37 ¶ 42; 43 ¶ 42).

At no point did anyone at the Allegheny Station place a caution sign near the ice patch. (ECF Nos. 45 ¶ 17; 48 ¶ 17). Indeed, Ingold was not aware of any caution signs that could be used outside. (ECF Nos. 45 ¶ 17; 48 ¶ 17).

According to the National Oceanic & Atmospheric Administration, on November 22, 2014, there was freezing rain at Pittsburgh's International Airport at 9:31 a.m., 10:21 a.m., and 10:51 a.m. (ECF No. 88-5). There was no freezing rain reported at 9:40 a.m. or 9:51 a.m. (Id.) The United States'...