Whyte v. United States Postal Service

Filing 56

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge James I. Cohn on 5/31/2012. (sry)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-62112-CIV-COHN/SELTZER
DOREEN WHYTE,
Plaintiff,
vs.
UNITED STATES POSTAL SERVICE,
Defendant.
________________________________/
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE came before the Court for a bench trial on May 29, 2012. The
Court has carefully considered the testimony and credibility of the witnesses, the other
evidence admitted during trial, and the arguments made by counsel. The Court has
also considered the parties’ Joint Pretrial Stipulation [DE 45], Plaintiff’s Proposed
Findings of Fact and Conclusions of Law [DE 47], and Defendant’s Proposed Findings
of Fact and Conclusions of Law [DE 48]. In accordance with Rule 52 of the Federal
Rules of Civil Procedure, the Court makes the following findings of fact and conclusions
of law.
I.

Findings of Fact

1.

On the morning of March 30, 2009, Plaintiff Doreen Whyte (“Whyte”) was
walking with her husband, Gilbert Whyte, through their neighborhood in Sunrise,
Florida.

2.

While preparing to cross the street near the driveway of one of her neighbors,
Sony Mondesir, Whyte’s feet became caught in a white plastic band lying on the
sidewalk, causing her to fall forward onto the driveway.

3.

Shortly after the fall, Whyte’s husband took her to a hospital emergency room,
where she was treated and diagnosed with fractures of her left and right wrists.

4.

Whyte later underwent surgery on both wrists, as well as physical therapy.

5.

As a result of these treatments, Whyte incurred medical bills totaling $64,627.09,
some of which she and her husband have paid.

6.

Whyte still experiences pain and physical limitations from her injuries, especially
in her left wrist, and she has scars on both wrists.

7.

Whyte’s husband kept the plastic band that tripped her, labeling it “the culprit.”

8.

The band, presented as a trial exhibit, is less than 1/4" wide and appears to be
made of thin, shredable plastic.

9.

Aside from a crossing pattern on the width of the band, it has no obvious
distinguishing traits.

10.

Although Whyte and her husband often walked along the same route in their
neighborhood, neither of them had ever seen a white plastic band on the ground
prior to Whyte’s accident.

11.

More than a year after Whyte’s accident, she and her husband collected similar
plastic bands in areas of the neighborhood (including a grassy swale near
Mondesir’s house) where employees of Defendant United States Postal Service
(“USPS”) parked their vehicles to deliver mail.

12.

Whyte and her husband never saw a USPS employee drop one of the bands.

13.

Mondesir observed USPS carriers drop plastic bands on his property a few times
a week for about a year, but he could not recall the particular year when this
happened.

2

14.

Stephen Casella, a neighbor who heard Whyte fall and went to help her, did not
see a plastic band at that time.

15.

Sometime prior to the accident, Casella had seen several plastic bands on his
property (across the street from Mondesir’s house), but he did not know how
they got there and did not see a USPS carrier discard them.

16.

Whyte first notified USPS of her accident by submitting an administrative claim
dated January 26, 2011.

II.

Conclusions of Law1
Whyte brought this action against USPS pursuant to the Federal Tort Claims Act

(“FTCA”).2 She claims that the plastic band that caused her fall and resulting injuries
was discarded by a USPS employee acting in the course of his or her employment.
Compl. [DE 1] ¶ 9. Whyte’s Complaint alleges that USPS acted negligently by
discarding plastic bands where they could trip pedestrians and by failing to train its
employees not to discard bands in such areas. See id. ¶¶ 10-12. USPS denies that
one of its carriers dropped the band in question and further contends that it properly
trains its employees on how to discard the plastic bands that are used to bundle mail for

1

Any of the conclusions of law herein that may represent findings of fact are
adopted as findings of fact.
2

As relevant here, the FTCA provides that

the district courts . . . shall have exclusive jurisdiction of civil actions on
claims against the United States, for money damages . . . for injury or loss
of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, under 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.
28 U.S.C. §1346(b)(1).
3

delivery. Jt. Pretrial Stip. [DE 45] at 2.
Under the FTCA, liability for alleged negligent acts of federal employees
generally depends on whether “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.” 28 U.S.C. §1346(b)(1). Thus, the parties agree that this action is governed
by Florida negligence law. Jt. Pretrial Stip. at 4. To establish a negligence claim under
Florida law, a plaintiff must prove four elements: “(1) a legal duty on the defendant to
protect the plaintiff from particular injuries; (2) the defendant’s breach of that duty;
(3) the plaintiff’s injury being actually and proximately caused by the breach; and (4) the
plaintiff suffering actual harm from the injury.” Zivojinovich v. Barner, 525 F.3d 1059,
1067 (11th Cir. 2008) (per curiam) (citing Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d
1182, 1185 (Fla. 2003)).
For purposes of decision, the Court assumes that USPS had a duty to protect
Whyte from injury by not discarding plastic bands where they could trip pedestrians.
The Court concludes, however, that Whyte has not shown by a preponderance of the
evidence that USPS breached that duty here. Whyte has presented no specific
evidence showing that a USPS carrier was the source of the band that tripped her.
The testimony of Whyte and her husband proves, at most, that USPS carriers may
have discarded similar plastic bands in Whyte’s neighborhood more than a year after
her accident. Further, while Mondesir testified that USPS carriers regularly dropped
plastic bands on his property, he could not recall with any degree of certainty when that
occurred. And though Casella saw plastic bands in his yard at some unspecified time
before the accident, he did not know where they came from and never saw a USPS
employee discard them. Nor did Whyte offer any proof that plastic bands like the one
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that tripped her are used exclusively by USPS. Absent some reliable evidence linking
USPS to the plastic band that caused Whyte’s fall on March 30, 2009, the Court cannot
find by a preponderance of the evidence that a USPS carrier discarded that band.
Because Whyte has not shown that USPS breached a duty to her, Whyte’s negligence
claims fail.3
III.

Conclusion
For the reasons discussed above, the Court finds in favor of Defendant on

Plaintiff’s claims in this action. The Court will separately enter a final judgment in favor
of Defendant based on these findings of fact and conclusions of law.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 31st day of May, 2012.

Copies to:
Counsel of record via CM/ECF

3

USPS has raised a defense of comparative negligence. See Fla. Stat.
§ 768.81. Because Whyte has not shown that USPS was negligent, however, the Court
need not decide whether Whyte was comparatively negligent.
5