Taylor v. USA

Filing 42

REPORT AND RECOMMENDATIONS- GRANTING 36 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 7/29/2013. Signed by Judge Sherry R. Fallon on 7/12/2013. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
NICOLE TAYLOR,
Plaintiff,
v.

UNITED STATES OF AMERICA,
Defendant.

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Civil Action No. 12-12-SLR-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Pending before the court in this matter is a Motion for Summary Judgment filed by the

Defendant, United States of America (the "Defendant"). (D.I. 36) The Plaintiff, Nicole Taylor
("Plaintiff''), opposes the Defendant's Motion. For the reasons which follow, I recommend that
the court GRANT the Defendant's Motion for Summary Judgment.
II.

BACKGROUND

A. ProceduralBackground
Plaintiff filed this trip and fall action against the Defendant on January 5, 2012. (D.I. 1)
Plaintiff's claim arises under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),
2671-2680. The FTCA is the exclusive remedy for damages for personal injury "resulting from
the negligent or wrongful act or omission of any employee of the Government while acting
within the scope ofhis office or employment."§ 2679(b)(l).
This matter was referred to the court by District Judge Sue L. Robinson to hear and
resolve all pretrial motions up to and including the pretrial conference. (D.I. 3) The court entered
a Scheduling Order setting a discovery cut off of March 25, 2013. (D.I. 10) The pretrial

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conference is scheduled for July 15, 2013, and a two day bench trial' before Judge Robinson is
scheduled for August 13, 2013. (D.I. 14)
On April 8, 2013, the court entered an oral Order permitting the parties to submit letters
requesting and/or opposing leave to file case dispositive motions? On April 10, 2013, the
Defendant submitted a letter to the court seeking leave to move for summary judgment. (D.I. 33)
Plaintiff did not seek leave to file a case dispositive motion, and did not respond to the
Defendant's request. The court granted the Defendant's request and set a briefing schedule on
May 7, 2013. (D.I. 35) The Defendant filed the pending Motion for Summary Judgment on May
24, 2013. (D.I. 36)
B. Factual Background

On June 2, 2009, Plaintiff went to the United States Post Office ("Post Office") on
Lancaster Avenue in Wilmington, Delaware to check for mail in her Post Office box. (D.I 1 ~~ 46; D.I. 39, Ex. A at 67) After exiting the Post Office, Plaintiff walked to her car, which she
parked in the Post Office's parking lot. While stepping from the sidewalk to the parking lot,
Plaintiff encountered a curb with a worn or chipped edge, and a depression in the parking lot
surface. Allegedly, as a result of the worn curb and depression, Plaintiff fell, sustaining injuries
to her right ankle, and internal injuries "of an unknown nature." (D.I. 1, ~~ 5, 10) Plaintiff alleges
that the worn curb edge and parking lot depression, together, are a dangerous condition, and the
Defendant was negligent in failing to inspect, repair, and warn of the condition. (!d.

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9) Plaintiff

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Jury trials are not authorized in actions, such as the present matter, brought under 28 U.S.C. §
1346(b). See 28 U.S.C. § 2402 ("[A]ny action against the United States under section 1346[(b)]
shall be tried by the court without a jury .... ").
2

The Scheduling Order did not provide for case dispositive motions. (See D.I. 10 ~ 10)

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seeks compensatory damages, including emotional distress and pain and suffering, special
damages, and costs. (Id. at 4)

III.

LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.lO
(1986). "Facts that could alter the outcome are 'material,' and disputes are 'genuine' if evidence
exists from which a rational person could conclude that the position of the person with the
burden of proof on the disputed issue is correct." Horowitz v. Fed. Kemper Life Assurance Co.,
57 F .3d 300, 302 n.1 (3d Cir. 1995) (citations omitted).
If the moving party has demonstrated an absence of material fact, the nonmoving party
then "must come forward with 'specific facts showing that there is a genuine issue for trial.'"

Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)). The court will "view the underlying
facts and all reasonable inferences therefrom in the light most favorable to the party opposing the
motion." Pa. Coal Ass 'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The mere existence of some
evidence in support of the nonmoving party, however, will not be sufficient for denial of a
motion for summary judgment; there must be enough evidence to enable a jury reasonably to
find for the nonmoving party on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of
its case with respect to which it has the burden of proof, the moving party is entitled to judgment
as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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IV.

DISCUSSION
Viewing the facts in the light most favorable to the nonmoving party, the court finds there

is no genuine issue of material fact in dispute, and the facts permit a reasonable person to draw
but one inference. A depression in a parking lot next to a curb that has a worn edge is not a
dangerous condition. Even if it could be considered dangerous, the condition would be obvious
to a person of ordinary care and prudence. Therefore, summary judgment should be granted for
the Defendant.
A. Dangerous Condition
Under Delaware law, "a property owner owe[s] to a business invitee, i.e., a person on the
premises at the express or implied invitation of the owner to render a benefit or service, the duty
to make the premises reasonably safe." DiOssi v. Maroney, 548 A.2d 1361, 1365 (Del. 1988)
(citing Hamm v. Ramunno, 281 A.2d 601 (Del. 1971)). Therefore, a property owner is subject to
liability for physical harm caused to his invitees by a condition on the land if the property owner:
(a) knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of harm to such
invitees, and
(b) should expect that they will not discover or realize the danger, or will
fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

DiOssi, 548 A.2d at 1366 (quoting Restatement (Second) of Torts§ 343).
In an action for personal injuries resulting from a property owner's breach of the duty to
keep his premises reasonably safe, the plaintiff must show that: (1) "there was a condition [on
the defendant's premises] of a dangerous or defective nature," (2) the "condition caused the
injuries complained of," and (3) "the condition or defect causing the injury was ... permitted to
remain after notice of its existence had come or should have come to the attention of the
defendant." Howard v. Food Fair Stores, New Castle, Inc., 201 A.2d 638, 640 (Del. 1964).

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"Conversely, to support a motion for summary judgment the defendant must offer proof negating
that showing." !d.
In the present case, no reasonable person could conclude that there was a dangerous
condition on the Defendant's premises and, therefore, the court should grant the Defendant's
Motion for Summary Judgment. It is undisputed that Plaintiff was a business invitee at the time
of the alleged fall because she was on the Defendant's premises for the purpose of checking her
Post Office box. (D.I. 39, Ex. A at 67) Thus, the Defendant owed Plaintiff a duty to keep the
premises reasonably safe. See DiOssi, 548 A.2d at 1365. Plaintiff claims the Defendant breached
that duty by "permitting a dangerous condition to exist" (D.I. 1

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9), namely, a

"depression/pothole directly adjacent to a crumbling curb" (D.I. 39 at 2). 3 The allegedly
dangerous condition is depicted in photographs that Plaintiff produced in discovery (D.I. 38, Ex.
C; !d., Ex. D

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9) and submitted as an exhibit to her brief in opposition of the pending Motion

(D.I. 39, Ex. B).
Viewing the photographs in the light most favorable to Plaintiff, no reasonable person
could conclude that the condition depicted is dangerous, such that it "involves an unreasonable
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Plaintiff describes her fall and the allegedly dangerous condition as follows:
[W]hen I walked out, I took my foot off the sidewalk and I stepped into a pothole
in the car parking lot of the post office. I tried to catch my fall and I twisted my
leg. And right where the pothole is, there's -- the sidewalk is all chewed off, the
sidewalk on the curb is chewed off.
(D.I. 39, Ex. A at 67-68).
The curb should have been completely done. It wasn't completely done, because
that's probably when I fell, I probably fell off of that. I'm thinking I had when I
stepped off the sidewalk, I probably stepped and just went like that, and then I
landed into the pothole. That made it worser. Then I tried to turn because I didn't
want to fall on top of the newborn baby I just had, which is Julio. And then I
couldn't. And I tripped on that little handicap thing that was differential. The little
stoop, whatever you want to say, stoop, street, whatever, the little sidewalk that
they have there for handicap people.
(D.I. 38, Ex. Bat 72-74).

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risk of harrn." 4 See DiOssi, 548 A.2d at 1366 (citing Restatement (Second) of Torts § 343). The
photographs, at best, depict a curb with a chipped or slightly worn edge that abuts a shallow
depression in a parking lot surface. This does not represent a dangerous condition. 5 See generally

Polaski v. Dover Downs, Inc., 2012 WL 329178 (Del. Aug. 14, 2012).
4

Below is one of the photographs, submitted by Plaintiff, which shows the allegedly dangerous
condition. (D.I. 38, Ex. C at P-NTAYLOR000107) Although the photograph depicts liquid
collected in the parking area, the parties agree that the parking area was dry on June 2, 2009,
when Plaintifffell. (D.I. 37, Ex. A at 104)

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Even if the worn curb edge and shallow depression in the parking lot surface created a
dangerous condition, summary judgment would still be proper in the context of Plaintiffs failure
to warn claim because the purported dangerous condition would be obvious to a person of
ordinary care and prudence. See Polaski, 2012 WL 329178, at *2. Under Delaware law,
there is no duty upon the [property] owner to warn an invitee of a dangerous
condition which is obvious to a person of ordinary care and prudence .... Thus, if
a danger is so apparent that the invitee can reasonably be expected to notice it and
protect against it, the condition itself constitutes adequate warning.
Niblett v. Pa. R.R. Co., 158 A.2d 580, 582 (Del. Super. Ct. 1960). See also Upshur v. Bodie's
Dairy Mkt., 2003 WL 21999598, at *2 (Del. Super. Ct. Jan. 22, 2003); Horton v. Lempesis, 1992
WL 19986, at *2 (Del. Super. Ct. Jan. 28, 1992). Here, the photographs submitted by Plaintiff
demonstrate that the curb was brightly marked with yellow paint, and the wear to the curb's edge
was plainly visible through its distinguishable contour, texture, and color. The shallow
depression in the parking lot surface was equally conspicuous. Thus, the condition itself was so
apparent that it constitutes adequate warning.

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In her testimony, Plaintiff does not establish any causal connection between the worn
curb and her fall. She never mentions stepping on the curb. Rather, Plaintiff states that she
stepped from the sidewalk into the depression, which she characterizes as a "pothole." (D.I. 39,
Ex. A at 67-68)
Furthermore, while "Delaware recognizes businesses have a duty to keep public walking
areas in a reasonably safe condition for customers[,] ... a business' duty to properly maintain
walking areas does not exempt customers from exercising reasonable care while walking."
Polaski, 2012 WL 329178, at * 1 (emphasis added) (citing Walker v. Shoprite Supermarket, Inc.,
2004 WL 3023089, at *2 (Del. Oct. 7, 2004)). '"A person is under the affirmative obligation to
watch where he or she is walking, to exercise the sense of sight in a careful and intelligent
manner to observe what a reasonable person would see.'" Walker, 2004 WL 3023089, at *2
(quoting Winkler v. Del. State Fair, Inc., 1992 WL 53412, at *2 (Del. Feb. 20, 1992)).
In sum, no evidence exists from which a reasonable person could conclude that a
dangerous condition on the Defendant's premises caused Plaintiff to fall. Therefore, the court
should grant the Defendant's Motion for Summary Judgment.
B. Negligence

As a preliminary matter, the court recognizes that Delaware state courts generally reserve
questions ofneg1igence for the jury. 6 See, e.g., Polaski, 2012 WL 3291783, at *1; Wootten v.
6

Although Delaware state courts generally reserve questions of negligence for the jury, their
approach is not without exception. See, e.g., Polaski, 2012 WL 3291783, at *1 ("If a reasonable
person could only draw one inference from the facts, judges may find a defendant not negligent
as a matter of law, even though the existence of negligence is typically an issue for the jury."
(citing Wooten, 226 A.2d at 239)); Yankanwich v. Wharton, 460 A.2d 1326, 1331 (Del. 1983)
("Issues concerning contributory negligence are ordinarily questions reserved for the trier of fact.
Only when the undisputed material facts can lead to only one conclusion, that the plaintiff was
negligent, can the Trial Court find contributory negligence as a matter of law." (citations
omitted)).

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Kiger, 226 A.2d 238, 239 (Del. 1967). Nevertheless, federal summary judgment standards apply
to the court's determination in this matter. See Lavin v. New York News, Inc., 757 F.2d 1416,
1418-19 (3d Cir. 1985) (explaining that "the standards for granting summary judgment pursuant
to Fed. R. Civ. P. 56 are matters of federal law"). Moreover, a jury trial is statutorily precluded in
this FTCA action. 7
Even if Plaintiff could demonstrate a dangerous condition on the Defendant's premises,
summary judgment would still be proper because Plaintiffwas negligent as a matter of law.
Under Delaware's modified comparative negligence statute, where a plaintiff 1s
negligent, and such negligence is greater than that of the defendant, the plaintiff is barred from
recovery. See 10 Del. C. § 8132; see also In re Asbestos Litig. Pusey Trial Grp., 669 A.2d 108,
112 (Del. 1995) ("[I]f the plaintiffs contributory negligence is 51% or greater, it is an absolute
bar to recovery.").
In the present matter, even when viewing the facts in the light most favorable to the
Plaintiff, the only inference reasonably drawn is that Plaintiff fell as result of her own
negligence. There is specific testimony by Plaintiff that she was not looking where she was
walking at the time she fell:
Q:
A:

Q:
A:

You remember how wide the [pot]hole was?
Yes. I know I remember that. Because I looked, I looked down on the
ground after I fell.
Did you look at the ground before you fell?
No. Because I had my baby in my arms. I'm paying attention to a newborn
baby. I'm not looking down. I'm paying attention to him. He's in front of
me. So when I fell, I wanted to see what caused me to fall. After I fell, I
had felt all that pain, I looked down on the ground and I see the sinkhole
and I see the chipped sidewalk. And I'm like oh, okay, that's probably
how I fell.

(D.I. 38, Ex. A at 72) Plaintiff further testified that she would have seen the alleged dangerous
7

See supra note 1.

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condition had she been looking where she was walking. (See id., Ex. A at 95, 114-15)
It is clear that at the time Plaintiff fell she was not exercising the requisite care for her
own protection. The Supreme Court of Delaware has held that
[i]t is negligent for a patron not to see what is plainly visible when there is
nothing to obscure his or her view. 8 "A person is under the affirmative obligation
to watch where he or she is walking, to exercise the sense of sight in a careful and
intelligent manner to observe what a reasonable person would see."
Walker, 2004 WL 3023089, at *2 (quoting Winkler, 1992 WL 53412, at *2). See also McFadden
v. Del. Racing Ass'n, 2007 WL 2677132, at *3 (Del. Super. Ct. Sept. 13, 2007) (discussing the

requirement of paying attention when approaching a curb). Therefore, the court should grant the
Defendant's Motion for Summary Judgment because the uncontroverted evidence would lead
any reasonable person to conclude that Plaintiff was primarily responsible for her fall.
V.

CONCLUSION
For the foregoing reasons, I recommend that the court grant the Defendant's Motion for

Summary Judgment.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R.
Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. Appx. 924, 925 n.l
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).

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Plaintiff does not claim that anything obscured her view on the day she fell. In fact, it seems
Plaintiff conceded that her visibility was not inhibited. (See D.I. 38, Ex. A at 115)

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The parties are directed to the court's Standing Order in Non-Pro Se Matters for
Objections Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is
available on the court's website, www.ded.uscourts.gov.

Dated: July 12, 2013

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