Rocci v. US

• Decision Date: 08 June 1988
• Docket Number: Civ. A. No. 87-132-JLL.
• Citation: 688 F. Supp. 971
• Parties: Mary ROCCI and Nicholas Rocci, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Delaware

688 F. Supp. 971

Mary ROCCI and Nicholas Rocci, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 87-132-JLL.

United States District Court, D. Delaware.

June 8, 1988.

Harold Schmittinger and Charles Whitehurst of Schmittinger & Rodriguez, P.A., Dover, Del., for plaintiffs.

William C. Carpenter, Jr., U.S. Atty., and Charlene D. Davis, Asst. U.S. Atty., Wilmington, Del., for defendant.

MEMORANDUM OPINION

LATCHUM, Senior District Judge.

I. INTRODUCTION

This action was brought by Mary Rocci and her husband, Nicholas Rocci, against the United States of America ("Government"), under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680 (1982). Plaintiffs allege that the Government's negligence caused Mrs. Rocci to fall and thereby suffer serious injuries as she stepped onto a ramp located in the roadway which abutted the sidewalk in front of the United States Post Office in Felton, Delaware. (See Docket Item "D.I." 1.) Mr. Rocci asserts a derivative claim for loss of his wife's consortium. (Id. ¶ 14.) Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 1346(b) (1982), as this is a claim for personal injury alleged to have resulted from the negligent act or omission of government employees acting within their scope of employment. Presently before the Court is the Government's motion for summary judgment. (D.I. 16.) Because the Court finds (1) no genuine issue as to any material fact; (2) that the Government did not have a duty to maintain or repair the ramp; and (3) that the Government had no duty to warn Mrs. Rocci of the ramp's defective condition, defendant's motion for summary judgment will be granted.

II. BACKGROUND

The Court finds that the essential facts of this case are undisputed. At approximately 2:45 p.m. on April 27, 1985, Mary Rocci ("Mrs. Rocci" or "plaintiff") drove her van to the Felton, Delaware, Post Office ("post office"), located at the southeastern corner of High Street and Railroad Avenue. (D.I. 17A at A-3.) Mrs. Rocci usually made weekly visits to the post office, where she and her husband had kept a post office box for about thirteen years. (Id.) The weather that day was pleasant, according to Mrs. Rocci's best recollection. (Id.) Mrs. Rocci was wearing walking shoes with a slight heel. (Id. at A-7.) After depositing mail inside the post office (id. at A-15; D.I. 19A at B-7), Mrs. Rocci left the post office and headed back towards High Street, where her van was parked. As she stepped onto a ramp which extended from the sidewalk into High Street, Mrs. Rocci suddenly fell, causing a fractured right ankle and sprained left ankle. (D.I. 17A at 19-20.)

The ramp upon which Mrs. Rocci fell adjoined the sidewalk in front of the post office (on the south side of High Street) and extended northward into the roadway. (See id. at A-53(a).) The ramp consisted of a blacktop incline through which a pipe ran to carry water in the gutter of High Street. (Id.) It had been constructed in 1983 following the installation of sewer lines in High Street by the Kent County Engineering Department. (Id. at A-24, A-57, A-83.) Although there is some dispute as to the contractor who constructed the ramp, it is undisputed that neither the United States Postal Service ("Postal Service") nor its agents or employees participated in the design or construction of the ramp, which was located entirely on the roadway of High Street.

The post office stands on premises which the Postal Service has leased since 1969. (Id. at A-97, A-106.) The lease has been renewed on several occasions since then, during which time the ownership of the property has changed hands. (Id. at A-102 to A-105.) At the time of Mrs. Rocci's fall, the property was owned by Mr. & Mrs. Joseph Wininger. (Id. at A-100.)

III. ANALYSIS

Plaintiffs have brought suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680.¹ The FTCA provides a limited waiver of sovereign immunity, primarily for civil actions arising from personal injury caused by the negligent act or omission of Government employees acting within their scope of employment. 28 U.S.C. § 1346(b). Section 1346(b) further limits the Government's liability to "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." Id. In the instant case, the alleged acts or omissions upon which liability would be based occurred in Delaware. Consequently, this Court must apply Delaware law to resolve the issues in question. See Toole v. United States, 588 F.2d 403, 406 (3d Cir.1978); Hess v. United States, 666 F.Supp. 666, 669-70 (D.Del.1987).

In the present action, plaintiffs allege that the Postal Service was negligent in two respects: first, in breaching an alleged duty to properly maintain and/or repair the ramp (D.I. 1, ¶¶ 8(b), 8(c)); and secondly, in breaching an alleged duty to warn Mrs. Rocci and those similarly situated of the alleged dangerous defect in the ramp. (Id. ¶ 8(d).)²

The Government maintains that the Postal Service owed no such duties. The Government therefore moves for summary judgment pursuant to Rule 56(b), Fed.R. Civ.P. Under Rule 56(c), Fed.R.Civ.P., this Court may enter summary judgment "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 a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The United States Supreme Court has stated:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Applying Delaware law and the guidelines set forth above, the Court finds that entry of summary judgment for the Government is appropriate.

The first issue for determination is whether there exists a genuine issue as to any material fact. Plaintiffs assert that a genuine issue exists as to whether the Postal Service exercised control over the ramp. (D.I. 19 at 9-11.) In particular, plaintiffs point to the conflicting deposition testimony of Postmaster, Eugene Racz, and Felton Mayor, William Meyers, on whether the Postal Service took responsibility for removing snow from the ramp. While Mr. Racz testified that the Postal Service never removed snow beyond the edge of the street (D.I. 19A at B-23), Mayor Meyers testified that the Postal Service regularly hired someone to remove snow from the ramp. (Id. at B-28.) Plaintiffs argue that if the Postal Service did in fact engage in removing snow from the ramp, it thereby exercised a degree of control over it. According to plaintiffs, this voluntary service and resultant control in turn would create a duty on the part of the Postal Service to "act reasonably" with regard to the ramp. Presumably, plaintiffs would then base a theory of liability on the breach of this duty. Thus, plaintiffs maintain that the question of snow removal creates a genuine issue of material fact and precludes summary judgment. The Court disagrees.

The United States Supreme Court has made clear that "there is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Summary judgment may therefore be granted if the evidence is merely colorable or is not significantly probative. Id. Thus, not all factual disputes preclude entry of summary judgment. Id. at 2510. Rather, only those disputes which might affect the outcome of the suit under the governing law will properly do so. Id. Factual disputes that are irrelevant or unnecessary will not be counted. Id.

The Court finds that the conflicting testimony as to snow removal presents just such an irrelevant dispute. Even if the Postal Service undertook to remove snow from the ramp on a handful of days out of the year, that would not in itself impose a general duty to maintain or repair the structure of the ramp, which was not located on its leased property. Consequently, the dispute over snow removal is immaterial, and does not preclude entry of summary judgment.

The Court, therefore, now turns to address the first legal question: whether the Postal Service had a duty to maintain and/or repair the ramp. Delaware common law follows the generally accepted rule that, in the absence of statute, an owner or occupant of abutting real estate is not liable to pedestrians who are injured as a result of defects in a sidewalk that the owner or occupant did not cause. Schreppler v. Mayor and Council of the Town of Middletown, 52 Del. 178, 2 Storey 178, 154 A.2d 678, 679 (1959). See also Massey v. Worth, 39 Del. 211, 9 W.W.Harr. 211, 197 A. 673, 675 (1938) (abutting owner is not liable for injuries resulting from failure to repair defect in sidewalk which owner has not caused). See generally Annotation, Liability of Abutting Owner or Occupant for Condition of Sidewalk ("Annotation"), 88 A.L.R.2d 331 (1963).³

In Schreppler, the plaintiff was injured when she tripped and fell on a sidewalk, due to unevenness caused by roots of a tree located at the curbline. 154 A.2d at 678. The roots had grown beneath the pavement and raised the sidewalk. Id. The owner had not attempted to maintain or repair the sidewalk. Id. at 679. The plaintiff brought a negligence suit against the owner of...