Smith v. U.S.
| Decision Date | 13 July 2010 |
| Docket Number | Case No. 6:09CV151 |
| Citation | 727 F.Supp.2d 533 |
| Parties | Donald E. SMITH, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of Texas |
Darren Dee Grant, Grant & Flanery, Tyler, TX, for Plaintiff.
Ruth Harris Yeager, Robert Austin Wells, U.S. Attorney's Office, Tyler, TX, for Defendant.
Plaintiff Donald E. Smith ("Smith") brought suit against Defendants United States of America ("United States") and Edwards Transportation, LLC d/b/a Mesa Mail Services, LLC ("Edwards") alleging negligence and premises liability under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1). Smith and Edwards settled, and the United States is the only remaining defendant in this case. The matter came for trial on the merits without a jury and was taken under submission. After considering the testimony, exhibits, arguments of counsel, and supporting memoranda, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).1
Smith seeks damages for personal injuries sustained when he fell from the scissor lift at the loading dock of the Lone Oak, Texas Post Office ("Loan Oak Post Office") on September 15, 2007. The basis of Smith's premises liability claim is that the United States Postal Service ("USPS") had a duty to provide a safe work environment to its contractors and their employees but failed to include required safety devices on USPS equipment. The basis of Smith's negligence claim is that the USPSfailed to require or take steps to ensure the proper use of safety devices.
The USPS awards transportation contracts to independent contractors based on competitive bids. Trial Tr., 107:23-24. Edwards provides mail transportation services to the USPS pursuant to Transportation Services Contract HCR 754B8, Greenville, Texas, to Golden, Texas (the "Contract"). Joint Pre-Trial Order ("JPTO"), Docket No. 50, at 5, ¶ E.1. The term of the Contract between Edwards and the USPS runs from April 1, 2007 to March 31, 2011. Id. at 5, ¶ E.2. Edwards is an independent contractor of the USPS and is referred to as the "supplier" or "contractor" throughout the Contract. Id. at 5, ¶¶ E.1 and E.3.
Under the Contract, Edwards is responsible for "load[ing], transport[ing], and unload[ing] all classes of mail at the headout, en route, and destinating offices." Contract, Pl.'s Ex. 16 at B-3. The Contract requires Edwards to be responsible for the safe loading and security of equipment. Specifically, the Contract requires that "[d]rivers responsible for loading or assisting in the loading of their vehicles must ensure that loads are properly distributed and secured and that doors, tailgates, and other equipment are fastened properly to permit safe operation." Contract, Pl.'s Ex. 16 at B-10-B-11. Edwards is also responsible for the hiring, screening, and identification of its drivers and subsequently ensuring that every driver has sufficient ability to properly perform the required duties under the Contract. JPTO, Docket No. 50, at 5, ¶¶ E.4. and E.5. Specifically, the Contract requires Edwards to identify and screen all individuals who require authority to drive or who need access to the USPS facilities or the mail before the individuals are allowed to perform under the Contract. Contract, Pl.'s Ex. 16 at B-8-B-9. The Contract also requires that Edwards "not employ any individual who is: lacking sufficient ability to perform properly the required duties; not a reliable and trustworthy person of good moral character; [or] barred by law or Postal Service regulations from performing such duties." Id. at B-7.
The USPS maintains only administrative control over independent contractors such as Edwards. Trial Tr., 114:9-10. The USPS can monitor Edwards to ensure that it is performing its contractual duties, but it does not have any daily hands-on supervision or oversight of how Edwards performs its contractual duties. Trial Tr., 114:11-23. The USPS does not train any of Edwards's new hires because the Contract is a service contract and Edwards is responsible under the Contract to train its own employees. Trial Tr., 110:25-111:5. Furthermore, the USPS does not have the resources or manpower to train every new driver for every contractor whenever a new employee is hired. Trial Tr., 112:12-113:5. Edwards is responsible for training all of its new hires, Trial Tr., 110:25-111:5; 200:14-201:19; 208:13-22, and is required to show its new hires how to perform the duties that are required under the Contract, including how to perform the duties safely. Trial Tr., 110:19-22; 126:3-6. Existing Edwards drivers are responsible for training new drivers-this includes training a new hire on how to use a scissor lift. Trial Tr., 200:21-201:6.
To train a new hire on the use of a scissor lift located on postal premises, Edwards would need to use the scissor lift on postal premises. Trial Tr., 118:12-24; 201:10-12, 17-19; 209:7-9. There was no prohibition against Edwards using the scissor lift on postal premises to train its new hires. Trial Tr., 118:7-24; 201:4-6, 13-16. According to the Contract, the only equipment that the supplier is prohibited from using are USPS-owned electricpallet jacks due to USPS-specific training and certification issues regarding the use of such equipment. Trial Tr., 115:3-116:12. Only certified postal employees are authorized to operate these electric pallet jacks. Trial Tr., 137:24-138:6; 156:16-157:10. The Contract language governing pallet jacks does not apply to scissor lifts because a scissor lift is clearly not a pallet jack and a scissor lift does not require specialized training. Trial Tr., 116:13-15; 117:21-23; 117:24-118:1. Although Edwards employees are allowed to use the scissor lift on postal premises, there are not always postal employees present at postal facilities when Edwards delivers the mail. Trial Tr., 90:20-91:10. No one is employed by the USPS to tell Edwards employees what to do on the premises or how to perform their jobs duties. Trial Tr., 88:23-89:2; 91:11-13.
A scissor lift is a standard piece of equipment used for the purpose of unloading deliveries by trucks at postal facilities such as the Lone Oak Post Office. Trial Tr., 116:17-21; 129:9-11; 201:7-8; 208:23-209:4. The scissor lift consists of a flat metal platform with slip-resistant grooves that can be moved up and down by the press of a button. Trial Tr., 199:5-8; 201: 7-9; 209:1-4; Def.'s Ex. 1-12, 27. The scissor lift platform can raise to the same level as the truck bed, at least three feet above the dock. Trial Tr., 28:19; 29:1; 211:20-21. When the scissor lift raises and lowers, an alarm sounds. Def.'s Ex. 27. The scissor lift has two enclosed sides and two open sides, and the equipment containing the mail can be pushed onto the lift through the open ends. Def.'s Ex. 1-12.
The platform of the scissor lift is level (i.e., not slanted) and the all purpose containers ("APCs") can remain stationary on the raised scissor lift platform even without the safety cord being attached. Def.'s Ex. 10-11. However, each open end of the lift at the Lone Oak Post Office is equipped with metal safety cords attached to poles at each end of the lift that can be attached by the operator for safety and to prevent equipment or people from falling off the lift. Trial Tr., 189:22-24; 198:11-13; 198:25-199:4. The safety cord is a metal rope that can be stretched across the open end of the scissor lift platform and connected to a latch on the opposite pole. Trial Tr., 30:24-31:25; Def.'s Ex. 1-12. The safety cords were attached to the scissor lift posts on the morning of September 15, 2007. Trial Tr., 93:25-94:13.
The scissor lift also had warning stickers that instruct a person using the scissor lift to use the safety cords on the lift. Trial Tr., 198:20-24. The warning stickers are orange with black lettering which reads: "USE HANDRAIL AND CHAINS WHILE OPERATING LIFT." Trial Tr., 181:14-16; Def.'s Ex. 12. There are four of these warning stickers located on each of the four posts of the scissor lift platform. Trial Tr., 180:15-181:16. The stickers face inwards so that a person standing on the scissor lift looking towards the opposite end-such as a driver standing on the truck bed facing the end of the dock-would be able to read them. Trial Tr., 94:23-95:7; 181:17-21. The warning stickers were on the scissor lift posts on the morning of September 15, 2007 and have been on the scissor lift since at least 2000, when the Lone Oak Post Office was built. Trial Tr., 94: 20-22; 95:11-16; 96:2-8.
On September 14, 2007, Ronald Waldroup, an Edwards employee, contacted Smith by telephone and instructed Smith to report for work the next morning. Trial Tr., 47:19, 24. Smith was instructed to meet Johnny Bushnell, also an Edwards employee, at 4:45 a.m. on Saturday, September 15, 2007 at the Valero truck stop inGreenville, Texas. JPTO, Docket No. 50, at 6, ¶ E.8. "James," an Edwards employee located at the Edwards corporate office in Lake Charles, Louisiana, contacted Johnny Bushnell with the same meeting instructions. Trial Tr., 209:23-210:1. On September 15, 2007, Bushnell met Smith at the pre-arranged location, and Smith rode with Bushnell to the Greenville, Texas Postal facility ("Greenville hub"), the first stop on the mail route. Trial Tr., 48:2. Independent contractors' employees are not permitted to enter secured postal facilities or to handle the mail unless they have been issued a badge, Trial Tr., 138:20-25, and at the Greenville hub, USPS employee Kim Earls Barnett ("Earls") told Bushnell that Smith was not authorized to be inside the postal facility or handle mail because Smith did not have the correct paperwork or a badge. JPTO, Docket No. 50, at 6, ¶ E.10; Trial Tr., 50:19; 142:9; 162:16-163:21. Earls indicated, however, that the decision to...
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