Crawford v. United States of America
Memorandum & Opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
Case No. 4:03-cv-0040-RRB
UNITED STATES OF AMERICA,
Before the Court is Hazel L. Crawford, Plaintiff, with a
claim filed pursuant to the Federal Tort Claims Act and arising out
of an incident that occurred on September 6, 2000, at Eielson Air
Force Base, Alaska.
Plaintiff injured her right ankle after
leaving the Base Exchange and while stepping from a ramp leading to
the parking lot.
Plaintiff contends that this injury was due to
specifically, due to: (1) defects in reconstruction occurring when
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the Air Force removed handicapped parking; (2) failure to properly
maintain the curbs and sidewalks; and (3) failure to warn of the
abnormally high curb and its deteriorated state.
responsibility for Plaintiff’s
injury and contends that: (1)
there was no reconstruction performed when the handicapped parking
location was moved; (2) the curbs and sidewalks were concrete and
needed no maintenance; and (3) the curb in question was not too
high nor was it deteriorated.
Defendant further argues that it
had no notice of any alleged defect and therefore no duty to warn.
The applicable law relevant hereto was set out by the
contention. The trial, therefore, proceeded to address the factual
disputes between the parties.
Trial commenced on March 3, 2008.
Plaintiff was in
attendance and was represented by counsel, Tim Cook.
States was represented by AUSA Susan Lundquist.
The Court sets
forth below a rough overview of the testimony presented at trial.
Plaintiff was the first witness and testified in detail
as to how she recalled the accident in question to have occurred.
Plaintiff testified that she was leaving the Base Exchange after
having done some shopping.
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The weather was dry and no debris
cluttered the sidewalk.
Plaintiff was generally in good health.
As Plaintiff stepped from the curb onto the parking lot, Plaintiff
recalls that the concrete crumbled under her right foot causing her
to fall forward into the parking lot.
tennis shoe at the time.
She was wearing a low cut
Although it is unclear how precisely
Plaintiff’s right foot was injured, i.e. the mechanism of the
Plaintiff landed on her left side and her left hand hit
She immediately experienced pain in her right ankle.
Plaintiff had never previously stepped from the curb at that
location. After the accident, Plaintiff looked at the curb and saw
where the concrete broke and saw pieces of concrete on the ground.
She does not recall seeing the reserved parking sign at the scene.
Plaintiff remained on the ground until an ambulance arrived and
took her to the emergency room on Base.
Her right foot became
swollen and her shoe was cut off.
Plaintiff’s ankle was placed in an ace bandage at the
Base Hospital and she was given crutches and some pain medication.
Several weeks after returning to her home in Valdez, Plaintiff saw
her family physician who took x-rays and referred Plaintiff to
Dr. Dingeman, an orthopedic surgeon in Fairbanks.
placed Plaintiff in a hard cast that she wore for six weeks.
Thereafter, a second cast was placed on Plaintiff’s ankle with no
Plaintiff continued to experience pain and swelling
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continuing into March of 2001.
She remained on crutches and began
to develop sores under her arms from the crutches, as well as
depression due to her incapacity.
As time passed, Plaintiff’s
medical bills began to add up, which contributed to her depression.
After Plaintiff’s injury she quit work and began taking
college classes but was unable to complete here course work due to
her ankle condition.
On June 4, 2001, Plaintiff underwent her first surgery in
this matter and was placed back in a cast.
Her pain, however,
continued with no apparent improvement in her condition. Plaintiff
continued to experience pain and depression and was embarrassed by
the cast and ankle boot.
Her depression led her to intentionally
burn herself with her cigarettes and placed a strain on her
relationship with her partner.
The pain and depression continued
On January 17, 2002, Plaintiff learned that she would
need another surgery.
This second surgery was performed by
Dr. Dingeman and took place in October of 2002, but again, was not
Plaintiff subsequently traveled to Anchorage for a second
opinion, which led to a visit at the Foot and Ankle Institute at
recommendation for another surgery. This final surgery was delayed
until June of 2007 because of Plaintiff’s lack of funds.
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surgery was successful and Plaintiff is now able to walk and has
been able to wear a regular shoe on her right foot since December
Plaintiff’s right foot still bothers her.
still has swelling in the back of the foot, with no feeling in the
back of her heel, and still feels pain with extensive standing or
Plaintiff currently has restless leg syndrome and knee
difficulties in her left leg, which she believes is a result of the
additional weight placed on her left leg while the right foot was
Plaintiff has still not returned to work.
Prior to her
injury, Plaintiff had just begun working as a cashier in a food
store making $8 an hour.
Previous to this she was the house
keeping manager for Westmark in Valdez making $12 an hour before
the hotel closed.
Plaintiff believes that her injury currently
renders her unemployable.
Plaintiff has incurred $50,000 to $70,000 in medical
expenses, plus between $16,000 and $20,000 in incidental expenses,
but provided the Court with no documents to support these claims.
She doesn’t have
bills were paid by insurance.
Approximately 75% of her medical
Plaintiff has had three surgeries
and wore numerous casts and prosthetic devices since her injury.
Before her injuries, Plaintiff enjoyed bicycle riding,
fishing, gardening, dancing, etc. Since her surgery, Plaintiff has
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now been able to do some of these things again, but she cannot yet
Plaintiff contends that this injury has deprived her of
her health, her money, her dignity, and her respect, and has taken
away her faith in other people.
Plaintiff believes that she is
entitled to $2 million for this injury.
On cross-examination, it was established that since the
incident Plaintiff was able to travel to Italy in 2002 to assist
with the care of her grandchild. Upon returning to Valdez she also
medication during any of this time because of her concern that it
might be addicting.
Jay Richard Smith next testified on behalf of Plaintiff.
He is a forensic engineer with a Bachelor of Science Degree in
He is a Registered Professional Engineer
who regularly performs accident investigations and who was retained
by Plaintiff in this matter.
Mr. Smith conducted an investigation
in 2005 regarding Plaintiff’s fall and prepared a report.
Mr. Smith’s opinion that Plaintiff fell while stepping off the curb
after a portion of the curb gave way and caused Plaintiff to fall.
Mr. Smith testified that the height of the curb prevented Plaintiff
from catching herself once having lost her balance and that the
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lack of barriers or pedestrian warnings contributed to the fall as
The walkway height at the place Mr. Smith understood
Plaintiff to have fallen was 9-1/4 inches to 10-1/2 inches above
the parking lot surface.
Anchorage are 6 inches.
Standard curb heights in the city of
According to Mr. Smith, this increased
height prevented Plaintiff from catching herself after stepping off
Mr. Smith believes that the typical person would view the curb in
question as too high and would not expect a 10-inch curb.
further believes that the removal of the curb stops contributed to
the fall by removing a barrier or indicator of the difference in
Plaintiff fell in a high traffic area.
The Air Force
could have continued the guardrail down, put another step in the
parking lot, or put a sign up.
The concrete appears to have been
deteriorated as evidenced by work requests for stairs and sidewalks
in the vicinity a year and half after this incident.
military failed to conduct regular inspections of sidewalks and
The deteriorated concrete and height of curb would have
been visible upon inspection.
On cross-examination, it was established that Mr Smith
doesn’t routinely design or build parking lots or handicap ramps;
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that curbs he is aware of are not curbs for handicap ramps; that
there are no handicap standards for city of Fairbanks near which
Eielson Air Force Base is located; that concrete maintenance
requires keeping water off it; that he has no knowledge about use
of de-icers at Eielson Air Force Base; and that the X on the asbuilts indicates that the original design was deleted. Mr. Smith’s
conclusion that the Air Force failed to regularly inspect the area
in question is based on the lack of records for such inspections.
Dr. John S. Cullen next testified on behalf of Plaintiff.
Dr. Cullen is a physician licensed to practice medicine in the
State of Alaska, specializing in rural family medicine in Valdez,
Alaska. Dr. Cullen initially treated Plaintiff for her right ankle
Dr. Cullen referred Plaintiff to an Anchorage specialist, who in
turn referred her to the physician in Seattle who, in October of
2003, recommended surgery to lengthen Plaintiff’s Achilles tendon.
Plaintiff put off this surgery, however, until 2007 when she
underwent surgery in Seattle. This surgery was successful in
reducing Plaintiff’s pain and permitted Plaintiff to walk without
a cast or prosthetic device, although it did not lead to complete
Plaintiff still has some pain in her ankle which is
likely to continue.
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Plaintiff does require different shoe sizes,
but will likely do fairly well.
Plaintiff also complained of
problems with her left leg and restless leg syndrome, which may be
caused by the right ankle injury.
Plaintiff will likely continue
to have some ankle pain in the future and will have difficulty with
jobs that require walking or heavy labor, although not more
Dr. Cullen offered no testimony with regard to
The Government’s first witness was Jeff Putman, Deputy
Base Civil Engineer at Eielson Air Force Base, a Registered Civil
Engineer residing in North Pole, Alaska. Mr. Putman sought records
that might exist regarding upgrades or changes to the curbs and/or
parking lot in question or work orders relating to the exterior of
the Base Exchange.
His search resulted in the discovery of
exhibits 18 and 19 but no other records or drawings.
Mr. Putman measured the curb height at the apparent
location of the fall at 9-1/4 inches.
prior falls at this location.
There were no records of
Mr. Putman was unaware of any major
construction or reconstruction at the area in question, other than
the removal of handicap signs. Mr. Putman did not view the removal
or placement of signs as significant reconstruction.
testified that records of inspections were not kept if they did not
turn up problems or need for work to be done.
Mr. Putman testified
that the government did use de-icers on sidewalks.
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The Government next called William Kim, the architect who
prepared the “as-builts” for the curb/side walk project in dispute.
Mr. Kim testified that the curb height was 6" to 10" above the
Mr. Kim was unaware of any codes for curb heights that
might have applied to this project. Upon cross-examination, Mr. Kim
testified concerning the elevation of the pavement at the site in
question and his belief that it sloped away form the curb based on
Mr. Kim has not been on the site.
The Government next called Linda Borden, a Base Exchange
employee, who worked at the Base Exchange during the years 19831985, 1990-1991, and 1999 to 2001.
September 6, 2000.
Ms. Borden was acquainted with
Ms. Borden, upon hearing of the fall, went to
Plaintiff told Ms. Borden that she fell when she “went to step from
the curb and her heel caught on the edge, she twisted her ankle,
and she fell.”
Ms. Borden has stepped off that curb a lot over the years
and had never experienced any problems.
Ms. Borden was unaware of
any construction taking place on the curb in question and never
heard of anyone other than Plaintiff falling at that location.
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Prior to the trial in this matter, considerable motion
practice was transacted.
On January 26, 2006, this Court granted
partial summary judgment in favor of Defendant, holding that the
United States was not liable for any injuries that resulted from
the original design or construction of the curb and walkway in
On June 15, 2006, a second motion for summary judgment was
This motion, however, was dispositive of the entire case,
for the Court found that the curb in question was not dangerous and
did not constitute a hazard that would give rise to a duty to warn.
Plaintiff appealed the Court’s orders of summary judgment to the
Ninth Circuit Court of Appeals which Court, in a decision filed and
entered September 7, 2007, reversed and remanded the matter to this
Court to determine more specifically: (1) whether the sidewalk and
ramp where Plaintiff was injured were altered subsequent to their
immunized from liability in this case; and (2) whether the height
of the curb presented a hidden danger of which the Government had
a duty to warn.
The trial of this matter was conducted to address
both the aforesaid issues.
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FINDINGS OF FACT AND CONCLUSIONS OF LAW
No credible evidence was presented at the trial of this
matter that the sidewalk and ramp where Plaintiff was injured were
altered subsequent to there initial construction in roughly 1983.
No witnesses were presented to testify of such alteration, no plans,
photographs, or contracts were presented of such an alteration, and
nothing about the physical layout of the area suggests that such an
alteration was made.
Plaintiff’s speculation that the “as-builts”
suggest that the area was initially constructed different than its
Plaintiff’s argument that the removal and placement of signs in the
The movement of a parking sign cannot be considered to
be a “change to a building or its permanent fixtures.”
specifications and are not the type of thing that would require a
re-engineering study. Certainly this makes sense, for there are any
number of reasons why a sign might be moved or replaced.
be highly unreasonable to expect that such actions would require reengineering of the entire area. This would apply as well to the
convincing evidence was presented that such bumpers ever existed in
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The Court is also unable to conclude the height of the
curb constituted a hidden danger against which the Government was
required to warn.
The curb, at the sight of the fall, was roughly
9 to 10 inches above the asphalt.
While this might appear higher
to some then normal, it is not in violation of any building or
The walkway appears, by the photographs, to be
following the natural contour of the land and does not stand out as
a dangerous condition.
And of particular significance, no evidence
was presented at trial of any falls or complaints about the area in
question during the roughly 13 years that it existed prior to
Plaintiff’s fall or at any time since.
This, despite the fact that
Plaintiff’s expert described the walkway as a high traffic area.
The Government had no reason whatsoever to believe that a dangerous
condition existed at this location.
The sidewalk itself, at the site of this incident, was not
dangerous or in disrepair.
The pock marks Plaintiff refers to in
Moreover, the Court has been unable to imagine the mechanics of
If the concrete really crumbled under her foot,
as she testified, Plaintiff would have had to have been balancing
on the edge of the curb, which is unlikely.
Further, the only
missing concrete, as depicted in the vicinity of the fall in
photographs taken five years afterwards, is minimal and not likely
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to have caused Plaintiff’s fall.
The Court, therefore, suspects
that the version of the incident as Plaintiff first reported to
witness Borden is more accurate.
Plaintiff likely caught her heel
on the edge of the curb, likely her left foot, stepped down hard,
twisted her right ankle, and fell to the ground. Certainly this was
significant injury. The accident, however, was not due to the
negligence of the Government.
is hereby rendered in favor of the Government.
Plaintiff’s claims are DISMISSED with prejudice.
ENTERED this 17th day of April, 2008.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
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