Provencher v. United States, Civil No. 98-233-P-C (D. Me. 7/26/1999)
| Decision Date | 26 July 1999 |
| Docket Number | Civil No. 98-233-P-C. |
| Parties | ROBERT PROVENCHER, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Maine |
Pro se Plaintiff, Robert Provencher, filed this action pursuant to the Federal Tort Claims Act, ("FTCA"), 28 U.S.C.A. § 1346(b) et seq., against Defendant, United States of America, for damages sustained when he slipped and fell on a plastic garbage bag on the cement steps leading to the warehouse where the United States Postal Service ("USPS") leased commercial space. Before the Court is Defendant's Motion for Summary Judgment wherein it contends that it had no legal duty to provide for appropriate exterior lighting or to maintain the outdoor staircase free of debris that could cause injury to lawful visitors (Docket No. 8). Plaintiff has not opposed this motion.
In March of 1995, Plaintiff was employed by Krisway Truck Leasing Co. ("Krisway"), located in South Portland, Maine, as a delivery truck driver. See Pedestrian Accident Questionnaire, Affidavit of David R. Collins ("Collins Affidavit"), Attachment 1 (Docket No. 10) at 1. In this position, Plaintiff delivered mail for the USPS from Maine to Massachusetts, making weekly trips to the mail delivery hub located in Westborough, Massachusetts ("Westborough Hub"). See Declaration of Brian D. Leary, USPS Supervising Manager ("Leary Declaration") (Docket No. 11) ¶ 3.
On March 19, 1995, at approximately 12:20 a.m., Plaintiff advised Leary, a USPS supervising manager, that he had slipped on a plastic bag and had fallen as he was walking down the outside cement stairs on the left side of the building housing the Westborough Hub. See Leary Declaration ¶ 4; Plaintiff's Response to Interrogatories, Collins Affidavit, Attachment 3 ¶ 6. Plaintiff asserts in his Complaint that the outside of the building by the stairs was not illuminated and, as a result, he was unable to see the plastic bag on the stairway. See Complaint ¶ 7. After Plaintiff complained of blurred vision, Leary took him to the University of Massachusetts Medical Center in Worcester. See Leary Declaration ¶ 4. Plaintiff was treated at the Medical Center emergency room at approximately 3:00 a.m. and, after his release, returned to the Westborough Hub, contacted Krisway to apprise it of the situation, and drove his truck back to Maine. See Leary Declaration ¶ 4; Plaintiff's Response to Interrogatories ¶¶ 6, 7. On April 11, 1995, Plaintiff completed a Pedestrian Accident Questionnaire and on July 28, 1997, he completed a Claim for Damage, Injury, or Death Against Federal Agency, SF-95 Claim Form, claiming total damages of $500,000.
The Westborough Hub is located in space contained in a warehouse building that Defendant leases from Otis Street Building III Limited Partnership ("Lessor"). See Lease Agreement Between Lessor and Westborough Hub ("Lease"), Leary Declaration, Attachment 2 at 1, 22(a). Under the Lease, the Lessor leased "48,000 net interior square feet" of the total 165,000-square-foot warehouse building to Defendant. See Lease at 23.
Pursuant to the Lease, "(t)he Lessor shall . . . maintain the demised premises, including the building and all equipment, fixtures, and appurtenances, whether severable or non-severable, furnished by the Lessor, in good repair and tenantable condition." See Lease ¶ 11 at 6. Furthermore, the Lease contains a "Maintenance Rider" which states in relevant part:
(d) The Lessor is responsible for:
(1) Maintenance of all common or joint use areas that may be included as part of this lease agreement;
. . . .
(4) Maintenance resulting from defects in Lessor's construction or in Lessor's installation of equipment, fixtures, or appurtenances furnished by the Lessor;
See Lease at 18. The word "maintenance" is defined as "preservation in a condition not worse than that existing at the time this agreement is made, and includes in addition to preventive and remedial repairs of all kinds, replacement when determined necessary." Id. Additionally, the Lease provides an indemnity clause whereby "the Postal Service shall be under no obligation to save harmless or indemnify the Lessor where a negligent or wrongful act or omission of the Lessor, its employees or agents, in any way causes or contributes to the claim, loss, damage, action, cause of action, expense, and/or liability." Lease ¶ 32 at 15. Leary, a USPS supervising manager, attests that up to and during March of 1995, the Lessor was responsible for all exterior maintenance, repairs, and modifications, if necessary, including those necessary to maintain the exterior stairs where Plaintiff indicated to Leary that he fell. See Leary Declaration ¶ 5. At some point after March of 1995, the Lessor added a light to the wall over the stairs where Plaintiff fell. See Leary Declaration ¶ 5.
Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. See Fed.R.Civ.P. Rule 56(c). Federal Rule of Civil Procedure 56 further provides that,
[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided under the rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e). Here, Plaintiff did not respond within ten days to Defendant's motion for summary judgment. Nor has he presented an explanation for his failure to respond. Plaintiff has, thus, failed to comply with the requirements of Local Rule 7(b), to file "within ten (10) days after the filing of a motion, a written objection thereto, incorporating a memorandum of law." See D. Me. Local R. 7(b). By virtue of that failure, Plaintiff is deemed to have waived objection to the motion, empowering the Court to act on the motion. See D. Me. Local R. 7(b).
Despite the fact that the Court has authority to act on the motion, it is well established in this District that when a nonmoving party chooses to rest on his or her pleadings, as here, a court may not automatically award summary judgment to the moving party and must take care to examine the merits of the motion. See Winters v. Federal Deposit Insurance Corp., 812 F. Supp. 1, 2 (D. Me. 1992); Gagne v. Carl Bauer Schraubenfabrick, 595 F. Supp. 1081, 1084 (D. Me. 1984); McDermott v. Lehman, 594 F. Supp. 1315, 1320-21 (D. Me 1984). Instead, a party who fails to object to a motion for summary judgment within the time allotted under the local rules is deemed to have consented to the moving party's statement of facts to the extent it is supported by appropriate record citations. See Winters, 812 F. Supp. at 2. However, the moving party still has the burden of showing that the undisputed facts entitle it to summary judgment as a matter of law. See Fed R. Civ. P. 56(c); Stepanishcen v. Merchants Despatch Transport. Corp., 722 F.2d 922, 929-30 (1st Cir, 1983).
Accordingly, in this case, Plaintiff is deemed to have waived his right to controvert the facts asserted by the moving Defendant. Thus, the Court will accept as true all material facts, supported by appropriate record citations, set forth by Defendant. To determine whether summary judgment for Defendant is appropriate, the Court will review the materials presented by Defendant to determine whether the standard for summary judgment is met even though Plaintiff has failed entirely to file materials in opposition. Summary judgment will be granted if, upon the Court's consideration of the pertinent papers, those facts entitle Defendant, the moving party, to judgment as a matter of law.
. . . for injury or loss of property, or personal injury or death 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 claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C.A. § 1346(b). Accordingly, under the FTCA, the United States is liable, as a private person would be, for injury caused by the negligent act or omission of any government employee who is acting within the scope of his or her employment. See Goldman v. United States, 790 F.2d 181, 182-83 (1st Cir. 1986).
In analyzing a claim brought pursuant to this provision, a court determines the claimant's substantive rights according to the law of the state where the act or omission occurred. See id.; see also Richards v. United States, 369 U.S. 1, 10, 82 S.Ct. 585, 591 (1962); Rodriguez v. United States, 54 F.3d 41, 44 (1st Cir. 1995).
Here, Plaintiff's substantive rights are determined by the law of Massachusetts, where the accident occurred. Under Massachusetts law, to establish a claim for negligence, Plaintiff must demonstrate "(1) a legal duty owed by [the] defendant to [the] plaintiff; (2) a breach of that duty; (3) proximate or legal cause; and (4) actual damage or injury." Verge v. United States Postal Service, 965 F. Supp. 112, 117 (D. Mass. 1996) (citing Jorgensen v. Massachusetts Port Authority, 905 F.2d 515, 522 (1st Cir. 1990) (applying Massachusetts law)). For Plaintiff to survive summary judgment here, there must be sufficient evidence in the record that Defendant, as lessee to the...
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