Andrews v. The United States of America

Filing 30

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

LINDA ANDREWS,
Plaintiff,
vs.

Case No. 16-4173-SAC

UNITED STATES OF AMERICA,
Defendant.

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
constructive

notice

obliged to abate.

of

a

dangerous

condition

which

it

was

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.
56(a).

A “genuine dispute as to a material fact” is one “such

that a reasonable jury could return a verdict for the nonmoving

1

party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

“Only disputes over facts that might affect the outcome

of the suit under the governing law will properly preclude the
entry of summary judgment.”
of

a

genuine

issue

of

Id.

material

A movant may show the absence
facts

by

negating

the

other

party’s claim or by pointing out a lack of evidence for the
other

party

on

an

essential

element

of

that

party’s

claim.

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.
judgment

stage,

the

court’s

job

“is

Id.
not

At the summary

...

to

weigh

the

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.

Anderson, 477

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).

2

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:

a lobby

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
knee.

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
bunched up.”

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
fall.

She has stated, however, that she believed her foot went

under the mat when she opened the door and that this caused her
to trip.
Plaintiff reported her fall to the post office manager,
Susan

Grasmick,

not

long

after
3

she

fell.

Grasmick

took

plaintiff’s

statement

and

investigation worksheet.
reported

that

she

filled

out

a

handwritten

accident

According to the worksheet, plaintiff

tripped

on

the

entrance

rug.

Plaintiff

refused medical assistance and told Grasmick that “she was just
extremely embarrassed.”

Grasmick took a photograph of the floor

mat.
Then

Grasmick

completed

an

accident investigation worksheet.

electronic

version

of

the

On the electronic version,

Grasmick reported that “the lobby rug was in place and slightly
buckled in some areas.”
knowledge

about

the

Grasmick has testified that she had no

condition

of

the

mat

immediately

before

plaintiff fell, or what caused the buckles she observed after
plaintiff fell.

The floor mat was provided by Cintas, a company

under contract to replace the post office’s mats on a regular
basis.

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
wrinkles.

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
one.

Henderson cleaned the lobby of the post office on the day
4

plaintiff fell, but he left the building around 8:00 a.m.

He

testified that the rugs were flat when he was there on December
8, 2014.

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
lobby.

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
the

floor

mats

are

flat.

But,

Grasmick

testified

that

any

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:

5

(1) the

defendant

owed

a

duty

breached;

(3)

the

to

the

plaintiff;

breach

was

the

plaintiff's

injury;

and

Wagoner

Dollar

General

v.

(4)

the

(2)

proximate

plaintiff

Corp.,

955

the

duty

cause

sustained

F.Supp.2d

was

of

the

damages.

1220,

1224

(D.Kan. 2013).
Defendant

contends

that

plaintiff

cannot

show

the

post

office breached a duty of reasonable care to plaintiff as a
business

invitee.

The

post

office

owes

a

duty

to

business

visitors to use reasonable care to keep the post office premises
safe.

Id.

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
business
assumed

invitees
to

have

of

the

knowledge

danger.
or

Id.

notice

which it is responsible for creating.

of

The

post

dangerous

office

is

conditions

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.
6/30/2008).

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.
6

Plaintiff has not produced evidence showing that the post
office

caused

the

floor

mat

to

bunch

up

or

otherwise

something to create the alleged dangerous condition.

did

Rather,

plaintiff claims that the post office had constructive notice of
the dangerous condition.

Doc. No. 28, p. 13.

But, plaintiff

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
post

office

custodian

left

the

building

plaintiff’s fall at 10:15 a.m.

at

8:00

a.m.

and

Finally, plaintiff notes that

the post office manager observed that the mat was buckled after
plaintiff’s fall.
evidence

that

Plaintiff asks the court to infer from this

the

post

buckles in the mat.

office

should

have

known

about

the

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.
Kimes

v.

U.S.D.

1996)(“Where

the

No.

480,

plaintiff

934

F.Supp.

fails

to

1275,

show

1279-80

that

an

See

(D.Kan.

allegedly

dangerous substance had been on the floor for any length of time
7

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.
2/6/1992)(affirming
evidence

as

to

judgment

how

long

for

a

store

dangerous

where

there

condition

was

no

existed

in

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
reasonable

inference

that

the

post

office

had

actual

or

constructive notice of the condition of the floor mat at the
time

plaintiff

fell.

Therefore,

plaintiff

cannot

prove

an

essential element of her case - that the post office violated a
duty

of

care

owed

to

plaintiff

as

a

business

visitor

under

Kansas law.
IV. The mode-of-operation rule does not apply.
Plaintiff presents one other argument.

Plaintiff asserts

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:

(1) the

business owner’s mode of operation was such that a dangerous
condition
failed

to

could
use

regularly

occur;

reasonable

and

measures,
8

(2)

the

business

considering

the

owner
risk

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)).
for

the

second

reasonable

condition,

measures

to

that

discover

Plaintiff cites evidence
defendant

the

bunched

failed
up

to

mat.

use
But,

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

judgment

motion

in

Roy

because

upturned

floor

mat

was

attributable

to

the

the

negligence

in

returning

there

mats

But, it does not

to

was

evidence

the

that

the

defendant’s

own

restaurant

entryway

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
9

reasons:

(1) the evidence did not establish Wal-Mart’s mode of

operation created a situation in which a dangerous condition
could

regularly

reasonable

occur;

system

to

and

check

implemented the system.

(2)
for

Wal-Mart
dangerous

35 P.3d at 903-04.

had

an

apparently

conditions

and

had

These are the same

conditions, of course, as the court cited previously.

Plaintiff

contends that the post office, in contrast to the Wal-Mart store
in

Hembree,

had

conditions.

no

reasonable

But,

system

plaintiff

does

for

checking

dangerous

allege

evidence

not

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.

See

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).
V. Conclusion
There
element

is

for

a

lack

liability

of

evidence

that

the
10

to

post

support
office

the
had

essential
actual

or

constructive notice of a dangerous condition caused by its own
actions or that of others, or that a dangerous condition was
foreseeable
Therefore,

because

of

defendant’s

the

post

motion

for

office’s
summary

mode

of

judgment

operation.
shall

granted.
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

11

be