Perkins v. United States of America
Filing
57
ORDER denying 39 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Beth Bloom on 9/6/2018. See attached document for full details. (ail)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-60791-BLOOM/Valle
DEBRA PERKINS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
______________________________________/
ORDER ON DEFENDANT’S MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant United States of America’s
(“Defendant”) Motion to Dismiss, ECF No. [39] (the “Motion”). Defendant requests dismissal
pursuant to Rule 12(h)(3) for lack of subject matter jurisdiction, or alternatively, pursuant to Rule
56(c) for summary judgment. The Court has carefully reviewed the Motion, the record, all
supporting and opposing filings, the exhibits attached thereto, and is otherwise fully advised.
For the reasons that follow, Defendant’s Motion is denied.1
I.
BACKGROUND
Plaintiff Debra Perkins (“Perkins”) lives at 455 N.W. 30th Terrace, Ft. Lauderdale,
Florida, where she has lived for over 30 years. ECF No. [39] at 3 ¶ 4. The front portion of
Perkins’ residence has a ground-level porch area. Id. From the porch, there is single step up to
the front door to access the residence. Id.
Reynard Stevens (“Stevens”) worked as a “mail carrier assistant” for the United States
Postal Service (“Defendant”). Id. at 4 ¶ 5. Defendant advises the Court that pursuant to USPS
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Defendant’s Motion to Dismiss is denied for the same reasons as Defendant’s Motion for Summary
Judgment, as set forth below.
Case No. 17-cv-60791-BLOOM/Valle
policy, “carriers are to leave packages at residence in a location that the customers do not step
out and hurt themselves.” ECF No. [39] at 5 ¶ 10. Stevens attended USPS “academy training”
for mail carriers, where he received further instruction regarding placement of packages. See
ECF No. [39-2] at 11:4–13. Specifically, Stevens was trained to always place packages behind
the door rather than in the doorway so that people do not fall on them. Id.
On April 23, 2013, Stevens delivered a package to Perkins at her residence. Id. at 5 ¶ 7.
Stevens placed the package on Perkins’ front porch away from the opening area of the door. Id.
Later that same day, upon exiting her residence, Perkins stepped out of the front door and tripped
on the package. Id. at ¶¶ 8–9; ECF No. [47] at 2 ¶ 4.
In this lawsuit, Perkins has sued Defendant for negligence under the Federal Tort Claims
Act (“FTCA”) alleging that Defendant breached its duty to have packages placed in a reasonably
safe manner, causing her to slip on the package and sustain injuries.
See ECF No. [1].
Defendant has moved to dismiss the Complaint and, in the alternative, for summary judgment,
on the basis that the USPS mail carrier’s decision of whether or not to leave a package and/or
where to place it at a residence, is encompassed within the discretionary function exception to
the FTCA (28 U.S.C §2680(a)). See ECF No. [39] at 2. Both Perkins and Defendant filed a
timely Response and Reply respectively. See ECF Nos. [47] and [54]. This Motion is now ripe
for adjudication.
II.
LEGAL STANDARD
A court may grant a motion for 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 parties may support their positions by citation to the record,
including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P.
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56(c).
An issue is genuine if “a reasonable trier of fact could return judgment for the
non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F. 3d 1235, 1243
(11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). A fact
is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting
Anderson, 477 U.S. at 247–48). The court views the facts in the light most favorable to the
non-moving party and draws all reasonable inferences in the party’s favor.
See Davis v.
Williams, 451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in
support of the [non-moving party’s] position will be insufficient; there must be evidence on
which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. The
Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130,
1140 (11th Cir. 2007) (quoting Carlin Comm’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352,
1356 (11th Cir. 1986)).
The moving party shoulders the initial burden to demonstrate the absence of a genuine
issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant
satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x
819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each
essential element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must produce evidence, going
beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories,
and admissions on file, designating specific facts to suggest that a reasonable jury could find in
the non-moving party’s favor. Shiver, 549 F.3d at 1343. But even where an opposing party
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neglects to submit any alleged material facts in controversy, a court cannot grant summary
judgment unless it is satisfied that all of the evidence in the record supports the uncontroverted
material facts that the movant has proposed. See Reese v. Herbert, 527 F.3d 1253, 1268–69,
1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004).
III.
DISCUSSION
“The United States is immune from suit unless it consents to be sued.” Cranford v.
United States, 466 F.3d 955, 957–58 (11th Cir. 2006) (citing United States v. Sherwood, 312
U.S. 584, 586 (1941)). The FTCA waives the sovereign immunity of the United States for
claims brought against it
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). This waiver of immunity, however, is qualified by several exceptions. See
28 U.S.C. § 2680. At issue here is the “discretionary function” exception, which precludes
government liability for
[a]ny claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon the exercise or performance or
failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not the discretion
involved be abused.
28 U.S.C. § 2680(a).
The discretionary function exception “marks the boundary between
Congress' willingness to impose tort liability upon the United States and its desire to protect
certain governmental activities from exposure to suit by private individuals.” United States v.
S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines ), 467 U.S. 797, 808 (1984). The
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purpose of the exception is to “prevent judicial second-guessing of legislative and administrative
decisions grounded in social, economic, and political policy through the medium of an action in
tort.” Autery, 992 F.2d 1523, 1526 (11th Cir. 1993) (internal quotations omitted); Powers v.
United States, 996 F.2d 1121, 1125 (11th Cir. 1993).
The Supreme Court has set forth a two-part test for determining whether the
government's conduct falls within the discretionary function exception. See Gaubert, 499 U.S.
315, 322–23 (1991). First, the court is to consider the nature of the government employee's
conduct and determine whether it involves “an element of judgment or choice.” Id. at 322;
Cranford, 466 F.3d at 958; Downs v. United States Army Corps of Engineers, 333 Fed. Appx.
403, 407 (11th Cir. 2009). “The requirement of judgment or choice is not satisfied if a ‘federal
statute, regulation or policy specifically prescribes a course of action for an employee to follow,’
because ‘the employee had no rightful option but to adhere to the directive.’” Autery, 992 F.2d
at 1526 (quoting Gaubert, 499 U.S. at 322). Stated another way, “‘if a government official in
performing his statutory duties must act without reliance upon a fixed or readily ascertainable
standard, the decision he makes is discretionary and within the discretionary function
exception.’” Powers, 996 F.2d at 1124 (quoting Alabama Elec. Cooperative, Inc. v. United
States, 769 F.2d 1523, 1529 (11th Cir. 1985)). Nevertheless, courts must be mindful that
because nearly all decisions require some element of discretion, the exception does not swallow
the rule. See Gray v. Bell, 712 F.2d 490, 508 (D.C. Cir. 1983).
Here, the Defendant advises the Court that “[p]ursuant to USPS policy (currently in force
as well as that which was applicable in April 2013) carriers are to leave packages at residences in
a location that the customers do not step out and hurt themselves.” See ECF No. [39] at 5 ¶ 10.
Additionally, Stevens testified in his deposition that he was trained by USPS to always place
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packages behind the door rather than in the doorway so that people do not fall on them. See ECF
No. ECF No. [39-2] at 11:4–13.
Defendant contends that “no USPS policy regarding package placement of residential
mail required USPS carriers to use any particular procedure or direct the manner of such delivery
(e.g. package placement in front or behind the door).” ECF No. [54] at 1. Acknowledging that
Stevens has testified he was trained to place packages behind the door, Defendant appears to
argue that USPS’s training of its mail carriers does not amount to USPS policy. The Court is not
persuaded.
In Sakal v. United States, plaintiff slipped and fell on a boat ramp at Everglades National
Park (the “Park”). 2010 WL 3782138, at *1 (S.D. Fla. Sept. 28, 2010). Plaintiff sued the
Government pursuant to the FTCA, alleging that it failed to maintain the subject premises in a
safe condition by allowing water, debris, seaweed, moss, and algae to accumulate. Id. The
Government moved to dismiss the complaint for lack of subject matter jurisdiction, contending
that the Park’s employees’ decisions as to how to maintain the ramp are discretionary and the
sort of policy decisions Congress intended to shield with sovereign immunity.
Id.
In
determining what constituted the Park’s policy, the Court considered the Park’s (1) written and
unwritten policies requiring employees to identify, report, and mitigate hazardous conditions;
and (2) unwritten policy and practice of employees to visually inspect the ramp on a daily basis
and walk across it to determine whether it felt slippery and needed cleaning. Id. at *3. The
Court concluded that “the Park’s written and unwritten policies provided a fixed, readily
ascertainable mandate to visually inspect and maintain the Ramp, and thus the government's
conduct was not discretionary.” Id.
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As in Sakal, this Court considers USPS’s official policy and the unwritten policy and
practice of employees, to assess the standard that USPS provided for employees to follow.
USPS’s training of its carriers to place packages behind the door, together with its official policy
that carriers are to leave packages in a location that the customers do not step out and hurt
themselves, “provided a fixed readily ascertainable mandate” for employees to follow. USPS
instructed mail carriers as to where they must specifically place packages (behind the door). As
such, the Court finds that Stevens’ conduct was not discretionary.
Second, even if Stevens’ conduct involved an element of judgment, the discretionary
function exception would not apply unless “the challenged actions are the kind of conduct that
the discretionary function exception was designed to shield.” Id. at 1526–27 (internal citations
omitted). The Court must determine “whether the challenged actions taken by a government
agent ‘are susceptible to policy analysis.’” Powers, 996 F.2d at 1125 (quoting Autery, 992 F.2d
at 1531). The inquiry “does not focus either on the subjective intent of the government agent, or
on whether the agent actually weighed policy considerations, but ‘on the nature of the actions
taken and on whether they are susceptible to policy analysis.’” Cranford, 466 F.3d at 958.
Exempt decisions are those fraught with public policy considerations and involve situations
where judicial review “would encroach upon the type of balancing done by an agency.” O'Toole
v. United States, 295 F.3d 1029, 1033–34 (9th Cir. 2002).
Defendant states that a carrier’s decision of where to place a package for delivery is
“based on operational, safety, staff, and budgetary concerns.” ECF No. [39] at 2. Defendant
does not provide any guidance to the Court regarding how those concerns are implicated in such
a decision.
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The Sakal Court concluded that decisions with regard to the maintenance of the ramp are
not susceptible to policy analysis.
2010 WL 3782138, at *4.
Although safety decisions
generally represent an exercise of discretion, the Court found that weighing the risks of any
slippery substance on the ramp is not a policy consideration. Id. Considerations of what other
maintenance functions needed to be performed and the limited human resources available alone
is “not an adequate basis for tort immunity.” Id. Rather, the Court reasoned that “[a]pplication
of the discretionary function exception to a garden-variety tort case such as this would seriously
threaten to swallow the FTCA whole.” Id.
Here too, this Court is presented with a garden-variety tort case. This Court is not
persuaded that Stevens’ conduct in this case is “susceptible to political, economic, or social
considerations grounded in regulatory policy.” Id. As in Sakal, USPS’s unspecified operational,
safety, and budgetary concerns are not an adequate basis for tort immunity, and the decision to
place packages behind the door so that people do not fall on them is not such a policy
consideration. Therefore, even if “the government's conduct involved an element of judgment or
choice, such conduct is not the type that should be shielded from liability under the discretionary
function exception.” Id.
The Court equally rejects the Defendant’s claim that summary judgment is appropriate as
genuine issues of material fact exist.
IV.
CONCLUSION
For the reasons stated herein, it is ORDERED AND ADJUDGED that Defendant’s
Motion to Dismiss and, Alternatively, Motion for Summary Judgment, ECF No. [39], is
DENIED.
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Case No. 17-cv-60791-BLOOM/Valle
DONE AND ORDERED in Miami, Florida this 6th day of September, 2018.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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