Andrews v. The United States of America
MEMORANDUM AND ORDER granting 26 Motion for Summary Judgment. Signed by U.S. District Senior Judge Sam A. Crow on 11/8/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-4173-SAC
UNITED STATES OF AMERICA,
MEMORANDUM AND ORDER
This is a Federal Tort Claims Act case arising from a trip
and fall at a post office.
This case is now before the court
upon defendant’s motion for summary judgment.
For the reasons
stated below, the court concludes that defendant has succeeded
in showing that there is a lack of evidence for an essential
element of plaintiff’s case – that the post office had actual or
obliged to abate.
Therefore, the court shall grant the motion
for summary judgment.
I. Summary judgment standards
Summary judgment is appropriate “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.
A “genuine dispute as to a material fact” is one “such
that a reasonable jury could return a verdict for the nonmoving
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
“Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of summary judgment.”
A movant may show the absence
party’s claim or by pointing out a lack of evidence for the
Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
If this initial burden of production is met, the nonmovant may
not rest on her pleadings, but must bring forward specific facts
showing a genuine issue for trial as to the dispositive matters
for which she has the burden of proof.
At the summary
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial. . . . If [however]
the evidence is merely colorable . . . or is not significantly
probative . . . summary judgment may be granted.”
U.S. at 249-50.
In applying the above standards, the court
views the evidence and all reasonable inferences therefrom in a
light most favorable to the nonmoving party.
v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
City of Herriman
II. Uncontroverted facts
The following facts are considered uncontroverted for the
purposes of defendant’s motion, or, if they are controverted,
are interpreted in the light most favorable to plaintiff.
On December 8, 2014, at around 10:15 a.m., plaintiff fell
as she entered from the outside into the lobby area of the
United States Post Office at 2921 SE Adams St., Topeka, Kansas.
That post office has two areas open to the public:
area, accessible from the outside through outward opening doors,
and the window area that is accessed from the lobby through
another set of doors.
Plaintiff alleges that she tripped over a
floor mat just inside the lobby entrance and fell onto her left
There were no witnesses to her fall.
Plaintiff has testified that after she fell, she looked at
the floor mat and noticed it was “kind of frayed, and it was
But, she didn’t know whether it was her fall that
caused the mat to be bunched up.
It was also her testimony that
she didn’t notice the mat before she fell and didn’t know the
condition of the mat or whether it was bunched up before her
She has stated, however, that she believed her foot went
under the mat when she opened the door and that this caused her
Plaintiff reported her fall to the post office manager,
According to the worksheet, plaintiff
refused medical assistance and told Grasmick that “she was just
Grasmick took a photograph of the floor
accident investigation worksheet.
On the electronic version,
Grasmick reported that “the lobby rug was in place and slightly
buckled in some areas.”
Grasmick has testified that she had no
plaintiff fell, or what caused the buckles she observed after
The floor mat was provided by Cintas, a company
under contract to replace the post office’s mats on a regular
Grasmick has no knowledge of prior falls by customers at
the post office.
Kevin Henderson cleans the lobby area of the post office
every weekday morning from 6:00 a.m. to 8:00 a.m. when he leaves
to attend to other post offices.
Part of his job every day is
vacuuming and checking the floor mats.
Henderson has not been
told that part of his job is checking the mats for “buckles” or
But, he tries to make sure the mats are in the right
place and he has stated that he would remove a bad rug if he saw
Henderson cleaned the lobby of the post office on the day
plaintiff fell, but he left the building around 8:00 a.m.
testified that the rugs were flat when he was there on December
He also testified that he had no specific memory of
their condition on that day.
Other employees assigned to the post office do not enter
the building through the lobby and they perform almost all of
their duties in areas other than the lobby.
On a daily basis, a
postal employee will service mail boxes that are located in the
On less than a daily basis, a postal employee may go
into the lobby area to replenish certain mailing supplies.
There is no written policy advising employees to make sure
unsafe condition should be abated immediately. The post office
has weekly five-minute safety meetings and an annual meeting
regarding slip-and-fall safety.
But, the meetings relate to
employee safety not customer safety.
III. There is no evidence that the post office had actual or
constructive notice of a dangerous condition.
To succeed upon her FTCA claim alleging negligence by a
federal agency or employee in the State of Kansas, plaintiff
must prove liability in the same manner as she would against a
private individual defending against a similar negligence claim
pursuant to Kansas law.
28 U.S.C. § 2674.
To succeed upon the
negligence claim asserted here, a plaintiff must prove:
office breached a duty of reasonable care to plaintiff as a
visitors to use reasonable care to keep the post office premises
In slip-and-fall or trip-and-fall cases, this duty
is commonly analyzed on the basis of whether the defendant had
actual or constructive notice of a dangerous condition so that
the defendant could correct the condition or provide notice to
which it is responsible for creating.
See Sipple v. Sears,
Roebuck & Co., 553 F.Supp. 908, 909 (D.Kan. 1982); see also,
Wilson v. Wal-Mart Stores, Inc., 2008 WL 2622895 *7-8 (D.Kan.
The post office is also charged with knowledge or
notice of a dangerous condition created by others if the post
office actually knew of the condition or if the condition had
been present for such a period of time that the post office had
constructive notice of it.
Sipple, 553 F.Supp. at 909; see also
P.I.K. Civil § 126.04.
Plaintiff has not produced evidence showing that the post
something to create the alleged dangerous condition.
plaintiff claims that the post office had constructive notice of
the dangerous condition.
Doc. No. 28, p. 13.
cites no evidence to support this claim.
Plaintiff states that the post office custodian’s duties
included vacuuming and dusting the lobby area of the post office
where plaintiff fell and that the custodian was not told his job
was to make sure the mats were flat. Plaintiff further states
that there was a two-hour fifteen-minute period between when the
plaintiff’s fall at 10:15 a.m.
Finally, plaintiff notes that
the post office manager observed that the mat was buckled after
Plaintiff asks the court to infer from this
buckles in the mat.
But, the facts cited by plaintiff provide
no evidence of when the mat bunched up.
The court can only
speculate that the mat was buckled for a significant period of
time before plaintiff’s fall.
This is not sufficient to sustain
plaintiff’s burden upon an essential element of her case.
dangerous substance had been on the floor for any length of time
prior to her fall, or that the defendant had knowledge of its
presence, the plaintiff cannot recover for negligence.”); see
also Martin v. Wal-Mart Stores, Inc., 1992 WL 19835 *4 (10th Cir.
restroom where plaintiff slipped and fell); Napell v. Aten Dept.
Store, Inc., 115 F.Supp.2d 1275, 1279-80 (D.Kan. 2000)(no proof
of breach of duty owed to business invitee without proof of a
slippery condition on floor at time of fall).
In sum, plaintiff has not produced evidence to support a
constructive notice of the condition of the floor mat at the
essential element of her case - that the post office violated a
IV. The mode-of-operation rule does not apply.
Plaintiff presents one other argument.
there is evidence supporting the application of the mode-ofoperation rule.
Under the mode-of-operation rule, notice of a
dangerous condition may be implied upon two conditions:
business owner’s mode of operation was such that a dangerous
involved, to discover the dangerous condition and remove it.
P.I.K. Civil § 126.05; see also Wagoner, 955 F.Supp.2d at 122425 (quoting Jackson v. K-Mart Corp., 840 P.2d 463, 470 (Kan.
1992)(interior quotation omitted)).
Plaintiff cites evidence
plaintiff does not cite evidence for the first condition, that
there was a mode of operation in which a bunched up floor mat
could regularly occur.
Plaintiff asserts that two cases support applying the modeof-operation rule.
The court disagrees.
One of the cases, Roy
v. Chili’s of Kansas, Inc., 2012 WL 5458872 (D.Kan. 11/8/2012),
involves a trip and fall over a floor mat.
concern the mode-of-operation rule.
The court denied a summary
But, it does not
without due care or in failing to use due care in maintaining
the safety of the entryway.
Id. at *3.
In contrast, plaintiff
does not cite to evidence that the post office caused the floor
mat to be bunched up.
The other case cited by plaintiff is Hembree v. Wal-Mart of
Kansas, 35 P.3d 925 (Kan.App. 2001).
In Hembree, the court
found that the mode-of-operation rule did not apply for two
(1) the evidence did not establish Wal-Mart’s mode of
operation created a situation in which a dangerous condition
implemented the system.
35 P.3d at 903-04.
These are the same
conditions, of course, as the court cited previously.
contends that the post office, in contrast to the Wal-Mart store
demonstrating the first condition - that the post office’s mode
of operation created a situation in which a wrinkled floor mat
could regularly occur.
There is a failure of proof that it was foreseeable to the
post office, because of its mode of operation, that a dangerous
condition could regularly occur.
Therefore, the post office did
not breach a duty to plaintiff by failing to take steps to
correct or warn against the alleged dangerous condition.
Wagoner, 955 F.Supp.2d at 1226-27 (dismissing mode of operation
claim in a trip and fall case where there was no proof that rug
was turned up or over on a regular basis or that other customers
tripped over the rug).
constructive notice of a dangerous condition caused by its own
actions or that of others, or that a dangerous condition was
IT IS SO ORDERED.
Dated this 8th day of November, 2017, at Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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