Hogan v. Potter et al
Filing
35
ORDER finding as moot 13 Motion for Summary Judgment; granting 26 Amended Motion. Ordered by Judge Hugh Lawson on 2/2/2012. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
WILLIAM HOGAN,
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Defendant.
:
___________________________________
Civil Action No.
No. 7:10-cv-107 (HL)
ORDER
Before the Court are Defendant’s Motion for Summary Judgment (Doc. 13)
and Defendant’s Amended Motion for Summary Judgment (Doc. 26). For the
reasons stated below, the Amended Motion is granted. The grounds on which
summary judgment is granted did not require an analysis of the reasoning set
forth in Defendant’s first Motion for Summary Judgment (Doc. 13), and therefore,
the Court deems the first Motion moot.
I.
Background
The basic facts of this case are undisputed. On Saturday, March 28, 2009,
Plaintiff went to the United States Post Office in Lake Park, Georgia (hereinafter
the “Post Office”) between 8:00pm and 9:00pm to check his post office box.
(Defendant’s Statement of Material Facts (“DSMF”) ¶ 5.1) The post office boxes
were accessible twenty-four hours a day, even though the Post Office service
1
All citations to Defendant’s Statement of Material Facts refer to statements
that have been admitted by Plaintiff.
counter was only open during standard business operating hours. (DSMF ¶3.)
Plaintiff went to the Post Office every day to retrieve his mail, sometimes during
regular work hours and sometimes after hours. (DSMF ¶ 2.)
On the day in question, it rained throughout the day and continued to rain
as Plaintiff arrived at the Post Office and made his way inside. (DSMF ¶ 6.) As
Plaintiff was entering the Post Office, his left foot slipped forward, causing him to
fall. (DSMF ¶ 13.) Plaintiff realized after he fell that he slipped because there was
water on the ground inside the entryway to the Post Office. (DSMF ¶ 14.) The
following Monday, Plaintiff returned to the Post Office and spoke with Mr. Charles
Stubbs, a sales and service associate at the Post Office. (Hogan 46, Stubbs 9.)
Plaintiff told Mr. Stubbs that he had slipped and fallen in the Post Office and
claimed that he sustained injuries to his back, hip, and jaw. (Hogan 46-47.)
Plaintiff sought treatment on Tuesday for his alleged injuries. (Hogan 46.) He
later returned to the Post Office to report his fall to Ms. Ginger Valenti, the
Postmaster. (Hogan 47.)
Plaintiff now files this suit against the United States2 under the Federal Tort
Claims Act, alleging that the Post Office should have been aware of the
2
The Federal Tort Claims Act (“FTCA”) governs actions brought against the
USPS. However, under 28 U.S.C. § 1679, only the United States has waived its
immunity, not its agencies or employees, and therefore the United States is the
proper defendant in this action. In the Answer, the parties stipulated to the
substitution of the United States as the Defendant. (Doc. 4, p. 1.) The above
caption has been amended, and the Clerk is directed to amend the docket
caption to comply.
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dangerous condition presented by slippery floors, and should have taken
precautionary measures to ensure that the Post Office remained safe.
II.
Summary Judgment
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and … the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 2552 (1986). A genuine issue of material fact arises only when
“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505 (1986).
When considering a motion for summary judgment, the court must
evaluate all of the evidence, together with any logical inferences, in the light most
favorable to the nonmoving party. Id. at 354-55. The court may not, however,
make credibility determinations or weigh the evidence. Id. at 255; see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097
(2000).
The party seeking summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of a material fact.” Celotex
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Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986) (internal quotation
marks omitted). If the moving party meets this burden, the burden shifts to the
nonmoving party to go beyond the pleadings and present specific evidence
showing that there is a genuine issue of material fact, or that the nonmoving
party is not entitled to judgment as a matter of law. Id. at 324-26. This evidence
must consist of more than mere conclusory allegations. See Avirgan v. Hull, 932
F.2d 1572, 1577 (11th Cir. 1991). Under this framework, summary judgment
must be entered “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
III.
Analysis
a.
FTCA Claims
As a general rule, the United States enjoys sovereign immunity and cannot
be sued. Monzon v. United States, 253 F.3d 567, 570 (11th Cir. 2001). However,
in some circumstances, the United States waives its immunity. Id. The Federal
Tort Claims Act (“FTCA”) is one circumstance when sovereign immunity is
waived and private parties are authorized to file actions against the United States
for torts committed by people acting on behalf of the United States. The FTCA
authorizes suits 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
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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).
Substantive claims under the FTCA are governed by the law of the state
where the injury occurred. See Hess v. United States, 361 U.S. 314, 318, 80
S.Ct. 341, 345 (1960). However, before applying state law to the underlying
claim, it is the Court’s responsibility to determine whether there is an exception
that would exempt a defendant from FTCA liability.
b.
“Discretionary Function” Exception
The FTCA contains exceptions that serve to revoke the United States’
waiver of sovereign immunity in certain circumstances. One exception is the
“discretionary function” exception, which provides that the United States is not
liable 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). Essentially, this exception prevents suits against
government employees for those decisions that require the employee to exercise
his or her discretion. The discretionary 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
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individuals.” Autry v. United States, 992 F.2d 1523, 1526 (11th Cir. 1993) (citing
United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 808, 104 S.Ct. 2755, 2762 (1984)).
In this case, the question is whether the discretionary function exception to
the FTCA applies to the facts at hand. If the exception applies, the United States
is exempt from liability under the FTCA. If the exception does not apply, Georgia
law should be applied to determine the merits of the underlying personal injury
claim.
1. Conduct at Issue
The first step in deciding whether the discretionary function exception
applies is to determine the conduct at issue. Autery, 992 F.2d at 1527 (“[b]efore
we address whether the government’s conduct violated a mandatory regulation
or policy, we must determine exactly what conduct is at issue”).
In Autery, the Eleventh Circuit addressed the question of the conduct at
issue in a case that involved a dead tree that fell on an automobile in a national
park, killing one of the passengers. Id. at 1524. The plaintiffs, the passenger’s
estate, sued the United States under the FTCA, but the United States claimed
the discretionary function exception shielded it from FTCA liability. Id.
The United States argued that the conduct at issue in that case was “the
Park Service’s decision to establish and implement a tree inspection program.”
Id. at 1527. The plaintiffs, on the other hand, contended that the conduct at issue
was the “park’s failure to carry out the mandates of its then existing policy of
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identifying and eliminating known hazardous trees.” Id. The Autery court did not
accept either party’s definition of the conduct at issue, finding that the
government’s formulation was too broad and the plaintiff’s formulation was too
narrow. Id. Instead, the Autery court determined that the appropriate conduct at
issue in the case was “whether controlling statutes, regulations and
administrative policies mandated that the Park Service inspect for hazardous
trees in a specific manner.” Id. at 1528. In the absence of controlling statutes, the
Park officials’ decision to employ a particular inspection and execution procedure
was protected by the discretionary function exception. Id.
In this case, like in Autery, the parties dispute the conduct at issue.
Defendant contends that the conduct at issue is the Post Office’s decision about
the most appropriate safety alternatives to be employed after hours when there
are no on-duty employees. Defendant argues that “[i]n simple terms, an agency
has discretion in deciding … not to have personnel present after hours, not to
adopt other policies which would make its entryway safer.” (Doc. 26, p. 7.) In
contrast, Plaintiff argues that the conduct at issue is the Post Office’s failure to
properly warn customers about potentially dangerous conditions and take steps
to remedy those conditions.
After review, the Court finds that Plaintiff’s argument, like the plaintiffs in
Autery, is too narrow. In Autery, the Eleventh Circuit found that defining the
conduct at issue as the manner in which park personnel administered the
inspection plan was too limiting. Autery, 992 F.2d at 1527. Similarly, to define the
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conduct at issue in this case as the manner in which the Post Office handled
rainy or wet conditions is taking too narrow of an approach. Instead, the conduct
at issue seems to be properly defined by Defendant.
The Court finds Bell v. United States, 238 F.3d 419, 2000 WL 1720932
(6th Cir. Nov. 6, 2000), instructive. The facts of that case are almost exactly the
same as the facts in the present case. There, Ms. Bell entered the lobby of a post
office in Kentucky on a rainy Saturday afternoon when the service windows were
closed. Id. at *1. Upon entering, Ms. Bell slipped and fell, injuring herself. Id. Ms.
Bell sued the United States under the FTCA, alleging that the USPS was liable
for her injuries for its failure to comply with safety procedures in the Post Office
Supervisor’s Safety Handbook. Id. The Sixth Circuit determined that the conduct
at issue was “the Plainview postmaster’s conduct in deciding under what
circumstances to allow the lobby area to remain open to the public at times when
the service windows were closed.” Id. at *4. In this case, like in Bell, the conduct
at issue is not the Post Office’s safety procedures. Instead, the conduct at issue
is the decision to allow the post office boxes to be accessible on a twenty-fourhour basis and the decision to have certain safety measures available during
those times when no employees were on duty.3
3
The Court declines to address the issue of whether the safety measures
that were intended to be employed were actually in use at the time of Plaintiff’s
fall. That question is more akin to a negligence analysis than the discretionary
function analysis, and potential negligence does not have a place in the
discretionary function analysis. Autery, 992 F.2d at 1528 (overruling the district
court because “[t]he district court’s analysis appears to collapse the question of
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2. Berkovitz Analysis
After identifying the conduct at issue, the Court must determine whether
the conduct at issue meets the standard set forth in Berkovitz v. United States,
486 U.S. 531, 536-37, 108 S. Ct. 1954, 1959. In that case, the Supreme Court
established a two-prong test to determine whether an employee’s conduct falls
within the discretionary function exception. Id. The first prong requires that the
action involve an element of “judgment or choice.” Monzon, 253 F.3d at 570
(citing Berkovitz, 486 U.S. at 536, 108 S. Ct. at 1958). The discretionary function
exception will not apply “when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow, because under those
circumstances, the employee has no rightful option but to adhere to the
directive.” Id. (quoting Berkovitz, 486 U.S. at 536, 108 S. Ct. at 1958-59) (internal
quotations omitted).
If the conduct is determined to involve judgment or choice, then the second
prong requires the court to determine “whether the judgment is of the kind that
the discretionary function exception was designed to shield.” Berkovitz, 485 U.S.
at 537, 108 S. Ct. at 1959. The reason for this second prong is that Congress
wished to prevent “judicial ‘second-guessing’ of legislative and administrative
decisions grounded in social, economic, and political policy.” Varig Airlines, 467
whether the [defendant] was negligent into the discretionary function inquiry … It
is the governing administrative policy, not the [defendant’s negligence], however,
that determines whether certain conduct is mandatory for purposes of the
discretionary function exception.”)
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U.S. at 814, 104 S. Ct. at 2765 (citing Berkovitz, 486 U.S. at 537, 108 S. Ct. at
1958-59).
In this case, as discussed above, the conduct at issue is the decision to
keep the Post Office open on a twenty-four-hour basis and the decision about the
safety measures to be employed when there were no postal employees on duty.
Plaintiff contends that the Post Office’s safety measures are not discretionary
and therefore fail to meet the first prong of Berkovitz. Using the Postal Service
Maintenance Handbook (“Handbook”) for support, Plaintiff argues that the
Handbook sets mandatory standards that must be followed by employees. In
particular, Plaintiff highlights portions of the Handbook that outline measures to
be taken when the floor is wet. Plaintiff argues that the decision about the course
of action when there is a wet floor is not discretionary and contains no exception
for conditions that arise after normal business hours. Plaintiff argues that the
action is dictated by set standards, and therefore, the discretionary function
exception should not apply.
Upon reviewing the Handbook, it seems illogical to convey the Handbook
in such a strict fashion. The Handbook is an excruciatingly detailed set of
guidelines that specifically addresses floors, care and maintenance. Chapter six
of the Handbook dictates cleaning methods to be used in post offices, and goes
so far as to include a diagram that demonstrates the proper figure-eight motion to
be used when mopping. USPS MAINTENANCE HANDBOOK MS-10, p. 6-4, fig. 6-3. If
the Court were to apply Plaintiff’s rationale to these mopping instructions, the
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instructions would be construed as indisputable mandates, and it is unreasonable
to construe this set of instructions so narrowly. The Handbook should be viewed
as a compilation of best practices, not as an iron-clad directive.
The Court finds that there are no mandatory rules dictating the hours of
operation of the Post Office or the safety measures that must be employed after
hours. The decision is left to the Postmaster and other decision makers, and they
must use some element of judgment or choice in reaching a conclusion about
their course of action. Thus, the first prong of the Berkovitz analysis is satisfied.
The second prong of the Berkovitz analysis is whether the judgment
exercised falls within the scope of the decisions that the discretionary function
was designed to protect. 486 U.S. at 536-37. The exception shields
governmental actions and decisions that are based on considerations of public
policy. Id. at 537. If a policy “leaves no room for an official to exercise policy
judgment in performing a given act, or if the act simply does not involve the
exercise of such judgment, the discretionary function exception does not bar a
claim that the act was negligence or wrongful.” Id. (citing Indian Towing Co v.
United States, 350 U.S. 61, 69, 76 S. Ct. 122, 126-27.) Policy considerations can
include the need to maximize compliance with agency regulations and the
efficient allocation of agency resources. Id. (citing Varig Airlines, 467 U.S. 797,
104 S. Ct. 2755).
In this case, the postmaster’s decision to keep the Post Office lobby open
on a twenty-four-hour basis without employees on duty to supervise the facility is
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a decision based on a policy consideration. Post offices across the United States
have different hours of operation, and some post offices do not allow for twentyfour-hour access to post office boxes. There are numerous public policy
considerations that would play into the decision to have the Post Office open all
hours of the day: risks of having a building open with no supervisors present,
availability of resources, and the need of the public to access the building.
Therefore, this decision qualifies as one based on policy, and it falls within the
scope of those decisions that the discretionary function exception was designed
to protect.
IV.
Conclusion
The conduct at issue in this case is the decision to keep the Post Office
open around the clock, and that decision is one that is protected by the
discretionary function exception to the FTCA. Therefore, Defendant is shielded
by the exception, and is out of reach of FTCA liability. There is no reason to
proceed with an analysis of the personal injury claim. The Court grants summary
judgment in favor of Defendant.
SO ORDERED, this 2nd day of February, 2012.
s/Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
ebr
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