Wilson v. United States of America

Filing 46

OPINION AND ORDER, denying 23 MOTION for Summary Judgment filed by United States of America. Signed by Judge Joseph S Van Bokkelen on 11/21/11. (mlc)

United States District Court
Northern District of Indiana
Hammond Division
Mary E. Wilson,
Plaintiff,
v.

Civil Action No. 4:10-CV-15 JVB

United States of America,
d/b/a United States Postal Service,
Defendant.

OPINION AND ORDER
One rainy Saturday evening, Plaintiff Mary Wilson went to the West Lafayette Post
Office to mail a letter. The retail counter of the post office had already been closed, but the lobby
was open for self-service. As Plaintiff was entering the lobby, she slipped on the water that had
been tracked in from outside and fell, injuring her knee. She sued the post office for negligence
but the post office moved for summary judgment, claiming sovereign immunity. The Court finds
that sovereign immunity does not shield Defendant from suit in this case.

A. Summary Judgment Standard
A motion for summary judgment must be granted “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). Rule 56(c) further requires the entry of summary judgment,
after adequate time for discovery, 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“A party seeking summary judgment bears the initial responsibility of informing a 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 material fact.” Keri v. Bd. of Trs. of Purdue Univ.,
458 F.3d 620, 628 (7th Cir. 2006) (citing Celotex, 477 U.S. at 323.). If the moving party supports
its motion for summary judgment with affidavits or other materials, then the burden shifts to the
non-moving party to show that an issue of material fact exists. Id.
Rule 56(e) specifies that once a properly supported motion for summary judgment is
made, “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set
forth specific facts to establish that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
In viewing the facts presented on a motion for summary judgment, a court must construe
all facts in a light most favorable to the non-moving party and draw all legitimate inferences and
resolve all doubts in favor of that party. Keri, 458 F.3d at 628. A court’s role is not to evaluate
the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the
matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v.
Liberty Lobby, 477 U.S. 242, 249–50 (1986).

B. Facts
Shortly after sunset, on Saturday, March 24, 2007, Plaintiff Mary Wilson went to the
United States Post Office in West Lafayette, Indiana, to mail a letter. The retail counter was
already closed and all employees were gone for the day, but the lobby was open for customers

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who wanted to mail letters, purchase stamps from a machine, or check their mail boxes. Two sets
of sliding doors provided entrance to the lobby, with a commercial floor mat between them.
When Plaintiff stepped onto the mat, it was wet and squishy from the rainwater tracked in
by customers throughout the day. As Plaintiff approached the second doorway, she slipped and
sustained knee injury that would require surgery. From the floor, she saw that the water on the
floor had accumulated into puddles. There was no “wet floor” sign in the area.
Lani Lorey manages the facility. As manager she is the equivalent of the postmaster.
Lorey has been in charge of the facility since 2005. The lobby of the post office has been kept
open around the clock since the 1990s. Lorey decided to continue that practice to accommodate
the customers.
Lorey kept the lobby open pursuant to section 126.43 of the Postal Operations Manual:
126.43 Lobby Hours. At a minimum, customers must have access to their PO
Boxes during all retail service hours of operation. Separate PO Box lobbies
should remain open when someone is on duty in the postal unit. At the
postmaster’s discretion, lobbies may remain open 24 hours a day to allow
customers access to PO Boxes and self-service equipment, provided that customer
safety and security provisions are deemed adequate by the Inspection Service.
(Lorey Dep., Ex. 8.)
The Postal Inspection Service last reviewed the West Lafayette office in the 1990s.
According to Laura Carter, the current inspector for the Greater Indiana District, that review
would have included inspection of the facility itself, surrounding area, parking lot and grounds,
and postal service secured databases. The investigation report would have been reviewed with
the postmaster who would make the decision whether to keep the lobby open around the clock.
The report has since been destroyed in the normal course of business. Inspector Carter is not
aware of any incidents of crime or other problems at the West Lafayette Post Office.
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In addition to the Postal Operations Manual, a document titled “MS-47 Housekeeping
Postal Facilities Manual,” set forth the norms for maintaining a safe customer environment at the
West Lafayette Post Office. Among other things, the manual provides that “[i]t is the
responsibility of the postmaster/manager of a postal facility to assure that custodial maintenance
is sustained at a satisfactory level.” Also, at the time of Plaintiff’s fall, there was in place a
Supervisor’s Safety Handbook that outlined, among other things, the requirements for floor
maintenance:
8-7 Floors
8-7.1 General
You must ensure that your employees follow these general
procedures to prevent potential slip, trip, or fall accidents.
...
k.

Give customer areas special consideration. The improper
placement of mats or rugs (or lack of them) can cause
customer injuries and result in significant liability to the
Postal Service.

...
8-7.3 Wet Floors
Instruct your employees to observe the following safety guidelines for wet
floors:
a.
b.
c.
d.

Keep wet floor areas roped off with “Wet Floor” signs or
high-visibility safety barricades until the floors are dry.
Always maintain a dry area for pedestrian traffic.
Place rubber mats or all-weather mats at entrances, including lobby
areas, when inclement weather develops.
Damp mop as often as necessary where excessive moisture
accumulates on indoor stairs, lobby floors, or high-traffic areas.

(Handbook at 53–54.)
The parties agree that, when Plaintiff fell, she was a business invitee.

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C. Sovereign Immunity Standard
“[T]he United States, as sovereign, is immune from suit save as it consents to be
sued and the terms of its consent to be sued in any court define that court’s jurisdiction to
entertain the suit.” United States v. Testan, 424 U.S. 392, 399 (1976) (quotation marks,
alteration, and citations omitted). The Supreme Court “has long decided that limitations and
conditions upon which the Government consents to be sued must be strictly observed and
exceptions thereto are not to be implied.” Soriano v. United States, 352 U.S. 270, 276 (1957).
The Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671–2680, provides the exceptions to
sovereign immunity, allowing the government to be sued in tort as a private individual would be
under like circumstances. See Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004). “But the Act
also limits its waiver of sovereign immunity in a number of ways.” Id.
For example, the Act does not apply in cases where a government employee’s action or
omission to act is within the employee’s discretion:
The provisions of this chapter and section 1346(b) of this title shall not apply to—
(a)

Any 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 the 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.
“[T]he discretionary function exception insulates the Government from liability if the
action challenged in the case involves the permissible exercise of policy judgment.” Berkovitz v.
United States, 486 U.S. 531, 537 (1988). The purpose of this exception is to “prevent judicial

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‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.” United States v. Varig Airlines, 467
U.S. 797, 814 (1984).
The discretionary-function exception has two requirements. First, the conduct
alleged must involve an element of judgment or choice. Conduct cannot be
discretionary if a federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow because the employee has no rightful
option but to adhere to the directive. Second, given that the exception protects
only governmental actions and decisions based on considerations of public policy,
the challenged discretionary conduct must amount to a permissible exercise of
policy judgment. The government actor’s intent is of no consequence to our
analysis, nor must the actor belong to the policymaking or planning ranks of
government in order for the exception to apply. All that matters is the nature of
the actions taken and whether they are susceptible to policy analysis.
Reynolds v. United States, 549 F.3d 1108, 1112 (7th Cir. 2008) (citations, quotations marks,
ellipsis, and brackets omitted). In short, whether the discretionary function exception applies
depends on two factors: “First, whether the government employees violated a specific mandatory
statute, regulation, or policy, and second, whether the conduct involved was the type of conduct
that Congress intended to shield from liability.” Alinsky v. United States, 415 F.3d 639, 647 (7th
Cir. 2005) (citing Berkowitz, 486 U.S. at 536).

D. Analysis
The government moved for summary judgment on Plaintiff’s claim under the Federal
Tort Claims Act. The government maintains it is immune from Plaintiff’s slip-and-fall lawsuit
because the manager of the West Lafayette Post Office, Lani Lorey, exercised discretion to keep
the post office open after the retail counter closed. According to the government, this decision
was made with the knowledge that no employees would be present outside of the regular

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business hours to maintain the floors, and allowing Plaintiff’s suit to proceed would place the
Court in a Monday-morning-quarterback position. In essence, while the government concedes
that it has duty to keep its premises safe around the clock, it contends that it has not consented to
be sued for a breach of such duty.
Plaintiff’s Response acknowledges that sovereign immunity protects Lorey’s decision to
keep the post office lobby open. However, she argues that such immunity does not extend to
Lorey’s failure to keep the premises safe, the conduct that is at the heart of Plaintiff’s challenge.
According to Plaintiff, Lorey had no discretion in this area.
The government falls short of establishing sovereign immunity. Government relies on the
Postal Operations Manual for Lorey’s discretion to keep the post office open around the clock:
“At the postmaster’s discretion, lobbies may remain open 24 hours a day to allow customers
access to PO Boxes and self-service equipment, provided that customer safety and security
provisions are deemed adequate by the Inspection Service.” (Postal Operations Manual §
126.43.) The Manual’s text shows that the postmaster has no discretion unless the Inspection
Service deems the post office safe and secure. It follows then, that the postmaster’s discretionary
decision must be reasonably close in time to the Inspection Service’s determination, and a single
inspection does not give license to generations of the postmasters to rely for their discretion on
what was deemed safe and secure decades earlier. The Court does not need to decide how close
in time the safety determination must be for the postmaster to exercise proper discretion; suffice
it to say, that seventeen years in our rapidly changing world is too far removed (the last
inspection happened around 1990). Accordingly, the Court finds that, Lorey had no discretion to
keep the post office open around the clock, because the Inspection Service had not deemed,

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within a reasonable time frame of her decision, that the post office was safe and secure for its
customers. If other facts are established at trial, the Court may reconsider this finding, but as the
record stands now, the government’s motion for summary judgment can be denied on this basis
alone.
However, even if Lorey did exercise proper discretion in keeping the post office open,
sovereign immunity does extend to Plaintiff’s slip and fall suit. In its defense, the government
submits an unpublished Sixth Circuit opinion, Bell v. United States, 2000 WL 1720932 (6th Cir.
Nov 6, 2000). Although the case dealt with an analogous situation and the Sixth Circuit held that
sovereign immunity shielded the government, the Court is unpersuaded that the Seventh Circuit
would have reached the same conclusion. In Bell, under almost identical circumstances, a
customer entered a Post Office in Louisville, Kentucky, on a rainy Saturday afternoon and
slipped and fell on the wet floor. As a result of the fall, the customer suffered a knee injury and
sued the Post Office.
As a first step, the Court of Appeals for the Sixth Circuit set out to identify the
government’s conduct at issue. The customer argued that it was the post office’s failure to
maintain the premises in a reasonably safe manner. Id. at *3. The Sixth Circuit instead focused
on the “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. The court
then determined that such conduct was of the discretionary sort that the exception was designed
to shield:
The POM allows the postmaster to exercise his discretion with regard to opening
the lobby to provide customers after-hours access to their post office boxes when
there will be no postal employees in the building, so long as customer safety,
security provisions and police protection are “deemed adequate.” Although the
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Supervisor's Safety Handbook spells out in detail the wet floor policies that are
mandatory when employees are present and the Post Office is open for business,
those polices are not applicable to the after-hours situation. Plainly it is the
postmaster who must “deem” the after-hours safety and security provisions
adequate; this determination falls squarely within the postmaster's discretionary
judgment and satisfies the first prong of the discretionary function test.
As to the second prong of the discretionary function test—whether this is the sort of
conduct the exception was designed to shield —the Rosebush decision is directly on
point. The postmaster's decision to allow access to the public-without requiring postal
employees to check the facility whenever it rains during the off-hours-is both a decision
relating to making federal property safe for visitors and a decision relating to warning of
potential danger. We have held that both types of decisions fit within the second prong of
the discretionary function test. Therefore, the conduct of which Ms. Bell complains falls
within the discretionary function exception to the FTCA.
Id. at *4–5.
Relying on Bell, the government insists that the conduct at issue is Lorey’s discretionary
decision to keep the West Lafayette Post Office open even when no employees were present at
the facility. As a result, the government contends that sovereign immunity shields the post office
from Plaintiff’s suit.
The government’s argument reaches too far. According to this logic, the mere fact that
the government decides in its discretion to build a post office would subsume all the details of
running its business and maintaining its premises, so that no person could ever sue the post
office. Yet, it isn’t so. Just as the decision to build a post office does not automatically
encompass all other aspects of its operations, so the decision to keep the lobby open after the
retail counter closes does not in itself override the directives for safe operation of the premises.
Insofar as the conduct about which Plaintiff complains is the government’s failure to keep the
floors in a safe condition, Lorey’s discretionary decision to keep the lobby open does not shield
the government from suit.

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Moreover, the government has not shown any other basis for immunity from Plaintiff’s
claim. The maintenance of floors is prescribed in the Safety Handbook but the government
argues that the Handbook is not controlling, does not apply when the retail counter is closed, and
is too vague in any case. Also, while the government concedes that it does not have the
discretion to abandon floor maintenance during regular business hours, it contends that the
Safety Manual has nothing to do with this obligation. However, the government does not explain
why, in the absence of the Handbook, and aside from its good will, it should keep the floors free
of hazards.
The Court disagrees with the government that the Handbook is not controlling or that it is
too vague. The instructions in the Handbook are specific:
8-7.3 Wet Floors
Instruct your employees to observe the following safety guidelines for wet
floors:
a.
b.
c.
d.

Keep wet floor areas roped off with “Wet Floor” signs or
high-visibility safety barricades until the floors are dry.
Always maintain a dry area for pedestrian traffic.
Place rubber mats or all-weather mats at entrances,
including lobby areas, when inclement weather develops.
Damp mop as often as necessary where excessive moisture
accumulates on indoor stairs, lobby floors, or high-traffic
areas.

(Handbook a 53–54.)
The Court also disagrees with the government that the Handbook is meant only for the
times when the retail counter is open. The Handbook does not make such a distinction. In fact,
the Handbook does not speak of only certain areas of the post office and does not differentiate
between the hours when the business at the post office can be conducted only in the lobby and

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the hours when patrons can also access the retail counter. Therefore, the Court is not persuaded
that it was within Lorey’s discretion to decide not to keep the floors free of hazards on
weekends.

D. Conclusion
The Court denies Defendant’s Motion for Summary Judgment (DE 23).
SO ORDERED on November 21, 2011.

S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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