Rogers v. Dep't of Veterans Affairs USA

• Court: U.S. District Court — Eastern District of Arkansas
• Writing for the Court: LEE P. RUDOFSKY UNITED STATES DISTRICT COURT
• Decision Date: 29 January 2021
• Docket Number: Case No. 1:19-cv-00041-LPR
• Citation: Rogers v. Dep't of Veterans Affairs U.S., Case No. 1:19-cv-00041-LPR (E.D. Ark. Jan 29, 2021)
• Parties: SHARON L. ROGERS PLAINTIFF v. DEPARTMENT OF VETERANS AFFAIRS USA DEFENDANT

SHARON L. ROGERS PLAINTIFF v. DEPARTMENT OF VETERANS AFFAIRS USA DEFENDANT

Case No. 1:19-cv-00041-LPR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS BATESVILLE DIVISION

January 29, 2021

OPINION

On May 22, 2019, Plaintiff Sharon L. Rogers filed a Complaint for damages against the United States Department of Veterans Affairs ("Defendant") under the Federal Tort Claims Act and Arkansas law.¹ On February 2, 2020, Mrs. Rogers filed an Amended Complaint.² She seeks damages for personal injuries she allegedly sustained "as a result of a fall while on the premises of the Veterans' Administration Hospital in Little Rock, Arkansas, on or about January 23, 2018."³

On October 13, 2020, the Court held a bench trial in this case.⁴ After hearing testimony and receiving evidence, the Court took the matter under advisement. The parties have each submitted proposed findings of fact and conclusions of law. In accordance with Federal Rule of Civil Procedure 52(a), and after reviewing the parties' post-trial submissions as well as the entire record, the Court now makes the following findings of fact and conclusions of law.

Findings of Fact

1. Mrs. Rogers's peripheral vision is not very good.⁵ Well before January 23, 2018, Mrs. Rogers was diagnosed with glaucoma.⁶ Glaucoma damages the optic nerve and makes it "harder for you to see peripherally around you, up, down, both sides."⁷ The damage from glaucoma is permanent.⁸

2. On January 23, 2018, Mrs. Rogers and Mr. Ernest Paul Hayes went to the Veterans' Administration ("VA") hospital in Little Rock, Arkansas.⁹ Mr. Hayes had an appointment with a renal specialist.¹⁰ At that time, Mrs. Rogers and Mr. Hayes were just friends.¹¹ Subsequently, they got married.¹²

3. Mr. Hayes drove to the hospital.¹³ At some point after they arrived at the hospital's campus, Mrs. Rogers took the driver's seat.¹⁴ Mrs. Rogers dropped Mr. Hayes off at the hospital's main entrance.¹⁵

4. By that time, Mrs. Rogers had been to the VA's Little Rock hospital on many occasions.¹⁶ She had visited the Little Rock campus enough to be familiar with "the most commonspots" at the facility.¹⁷ And she was very familiar with the hospital's main entrance.¹⁸ Indeed, Mrs. Rogers's late husband (Mr. Rogers) was a veteran. From 2003 until her late husband's death in 2015, Mrs. Rogers visited either the Little Rock or North Little Rock veteran's hospital an average of three times a month.¹⁹ Since 2016, Mrs. Rogers has accompanied Mr. Hayes to the Little Rock or North Little Rock veteran's hospital at least four times a month.²⁰

5. The main entrance contains a circular drive, which is seen in Plaintiff's Exhibits 1 and 2.²¹ Around the circular drive are short brick walls that extend out from the hospital building. The short brick walls are clearly seen in Plaintiff's Exhibit 2. These short brick walls have been at the main entrance ever since Mrs. Rogers began visiting the hospital.²²

6. After dropping Mr. Hayes off at the main entrance, Mrs. Rogers parked in the south parking lot, which is the parking lot to the right of the hospital when facing the main entrance. The parking lot is best seen in Plaintiff's Exhibit 1. Mrs. Rogers parked in an open space near the "light pole" visible in Plaintiff's Exhibit 1.²³

7. Mrs. Rogers exited her vehicle and began to walk back toward the main entrance.²⁴

8. To get to the main entrance from where she parked, Mrs. Rogers was required to walk around the short brick wall seen in Plaintiff's Exhibits 1 and 2.²⁵ Mrs. Rogers knew the short brick wall was there before she approached it.²⁶

9. Mrs. Rogers had taken this exact route from the parking lot to the hospital's main entrance on previous occasions.²⁷ But, in all the visits she had made to the VA's Little Rock hospital, Mrs. Rogers seldom ever parked in the south parking lot and thus seldom ever had to negotiate the end of the short brick wall.²⁸ She estimated that she had traversed this path fewer than five times.²⁹

10. Navigating the sidewalk from one side of the short brick wall to the other requires a near 180-degree turn around the end of the short brick wall.³⁰ The sidewalk's path around the end of the short brick wall can be seen in Plaintiff's Exhibits 1-3.

11. Mrs. Rogers approached the wall from the parking lot.³¹ She walked through the parking lot until she made it around the last vehicle parked in the row directly in front of the short brick wall.³² In Plaintiff's Exhibit 1, that spot is occupied by the dark colored pickup truck parked right next to the yellow fire hydrant.³³ Mrs. Rogers then walked diagonally toward the end of the short brick wall.³⁴ Her path took her just to the right side of the yellow fire hydrant seen inPlaintiff's Exhibit 3.³⁵ From there, she continued diagonally toward the end of the short brick wall.

12. Mrs. Rogers planned to place her hand on the short brick wall as she negotiated the turn around the wall.³⁶ She had seen other people do the same thing.³⁷

13. There is a slightly raised curb at the base of the end of the short brick wall.³⁸ This slight raise encases the bottom of the end of the short brick wall. The raise can be seen in Plaintiff's Exhibits 2-4 and the right side of Defendant's Exhibit 1E. It protrudes roughly four to five inches into the sidewalk.³⁹ And it is between one-fourth of an inch and two inches tall.⁴⁰ The curb's elevation is gradual.⁴¹ It does not have any sharp or abrupt edges like the curbs that trace the outer perimeter of the sidewalk seen on the left side of Defendant's Exhibit 1E.

14. The curb encasing the end of the short brick wall was not painted red on January 23, 2018.⁴² On January 23, 2018, the small curb was essentially the same color as the sidewalk.⁴³ The small curb's natural color is seen in Plaintiff's Exhibit 4.

15. Although Mrs. Rogers had taken this path before, she had never seen or noticed any kind of raise in the surface of the sidewalk.⁴⁴ She had never noticed the small curb encasing the end of the short brick wall. On the day in question, she did not see the small curb until she fell.⁴⁵

16. As Mrs. Rogers began to make her way around the short brick wall, her right foot caught the small inner curb and she fell.⁴⁶ Although Mrs. Rogers was close enough to the wall to trip on the small curb only inches from its base, she was not able to place her hand on the wall to steady herself as she had planned to do.⁴⁷

17. Mrs. Rogers landed on her hands and knees.⁴⁸ She sustained contusions and abrasions to both knees, her right elbow, pain in her right wrist, and a blow to her head.⁴⁹

18. Multiple VA hospital personnel came to Mrs. Rogers's assistance. Hospital personnel retrieved a wheelchair and wheeled Mrs. Rogers into the emergency center on location.

19. Kimberly Mashburn is the current Safety and Health Specialist at the VA's Little Rock hospital.⁵⁰ Ms. Mashburn has been employed in the Safety Office at the VA's Little Rock hospital since 2007.⁵¹

20. Part of Ms. Mashburn's job as a specialist is to investigate the VA's Little Rock campus for safety hazards and violations.⁵² Although Ms. Mashburn and her team are not formallyrequired to conduct safety investigations outside the hospital building, they do investigate for safety concerns outside the hospital building on hospital grounds.⁵³ These outside investigations involve looking at the sidewalks and parking lots around the hospital.⁵⁴

21. Ms. Mashburn never identified the small curb encasing the short brick wall as a safety hazard prior to January 23, 2018.⁵⁵ In fact, she never saw the small curb while doing inspections. She admits that the small curb was difficult to see before it was painted a different color than the sidewalk.⁵⁶ In light of Mrs. Rogers's fall, Ms. Mashburn believes that the curb could be hazardous to others.⁵⁷

22. As far as Ms. Mashburn is aware, the small curb encasing the end of the short brick wall had been there since before she began working at the VA's Little Rock hospital in 2007.⁵⁸ The Court finds that the small curb at the end of the short brick wall had been there since at least 2007. Ms. Mashburn had never been informed of anyone else tripping over the small curb before Mrs. Rogers tripped on January 23, 2018.⁵⁹

Conclusions of Law

1. Mrs. Rogers alleges that Defendant is liable for the damages arising out of the injuries she sustained when she fell on Defendant's property on January 23, 2018.⁶⁰ She asserts

that Defendant is liable under the Federal Tort Claims Act ("FTCA") and the laws of the State of Arkansas.⁶¹

2. "Courts decide FTCA claims under the law of the state where the tort occurred."⁶² Because the alleged tort occurred in Arkansas, Arkansas law applies.

3. "The mere fact that a person slips and falls does not give rise to an inference of negligence."⁶³ To prevail on a negligence claim in Arkansas, a plaintiff must prove "that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the breach was the proximate cause of the plaintiff's injuries."⁶⁴

4. "The issue of whether a duty exists is always a question of law, not to be decided by a trier of fact."⁶⁵

5. A property owner's duty depends on the status of the party who was injured on the property. The parties agree that Mrs. Rogers was an invitee on Defendant's property.⁶⁶ The Court also agrees that Mrs. Rogers was an invitee based on its foregoing findings of fact.

6. "In Arkansas, a property owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees."⁶⁷ This means that a propertyowner must take reasonable care to guard against any harm that appear[s] "likely in the ordinary course of events."⁶⁸ Arkansas law imposes "no duty to guard against merely possible, as opposed to likely or probable, harm."⁶⁹

7. A property owner's "duty to warn invitees of a dangerous condition applies only to defects or conditions such as hidden dangers, traps, snares, pitfalls and the like, in that they are known to the owner...