Krey v. Brennan et al
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 6/28/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KARL HEINZ KREY
Civil Action No. DKC 15-3800
MEGAN BRENNAN, Postmaster
General, United States Postal
Service, et al.
Presently pending and ready for resolution in this tort
action are (1) the motion to dismiss or, in the alternative, for
summary judgment filed by Defendant the United States of America
summary judgment filed by Defendants 6900 Wisconsin Avenue LLC
and WPC Management LLC (the “Landlord Defendants”) (ECF No. 36).
hearing being deemed necessary.
Local Rule 105.6.
following reasons, both motions will be granted.
The Landlord Defendants own the building located at 6900
Wisconsin Avenue in Bethesda, Maryland, which they lease to the
Unless otherwise noted, the facts outlined here are
undisputed and construed in the light most favorable to
operates a branch of the United States Postal Service (“USPS”)
out of this location (the “Bethesda Post Office”).
entered the lobby of the Bethesda Post Office at around 8:00
p.m. and slipped on a wet area of the floor, which resulted in a
(ECF No. 33-2, at 29).
Employees at the Bethesda Post Office serve customers from
9:00 a.m. to 5:00 p.m. on weekdays.
(ECF No. 33-3, at 19).
According to the Postal Operations Manual (“POM”), “[a]t the
postmaster’s discretion, lobbies may remain open 24 hours a day
equipment, provided that customer safety and security provisions
are deemed adequate by the Inspection Service.”
(ECF No. 33-6,
While the Bethesda Post Office service windows close
at 5:00 p.m., the lobby area remains open twenty-four hours per
(ECF No. 33-3, at 19).
The Maintenance Handbook states:
In order to avoid serious injuries
caused by slips and falls on wet
floors, use the following guidelines:
k. Use Wet Floor signs freely and
place them in high visibility areas to
alert employees and/or customers.
l. When possible, close off the
area by barricading it with safety
m. During rainy or snowy weather,
employee/customer entrances, such as
lobbies and vestibules.
n. Repeatedly mop
has been tracked in.
floors, complete work
section at a time.
in one small
p. After scrubbing or wet mopping
the floor, check it for a slippery
film. If a film is present, rescrub or
mop the floor using a neutralizer to
remove the film.
(ECF No. 40-4, at 7).
After the service windows close, the last
condition of the lobby at around 6:30 p.m.
(ECF No. 33-3, at
If the floor is wet, or if it is raining or snowing
outside, that employee will place additional matting and yellow
caution signs in the customer access area to warn customers of
potentially slippery conditions.
(ECF No. 33-3, at 17-18, 20).
testified that rain was in the forecast for the evening hours of
December 20, and that there had been rain in the area during the
(ECF No. 40-2, at 14).
Mr. Moore concluded that it
would have been reasonable to assume that someone would track
water into lobby that evening.
(Id. at 25).
Bethesda Post Office employees did not place additional matting
or caution signs that night.
(ECF No. 33-2, at 21).
time Plaintiff entered the Bethesda Post Office at around 8:00
p.m., the rain outside had caused a wet floor in the lobby.
(Id. at 29).
As Plaintiff was taking a step on to the linoleum
In Plaintiff’s deposition, he described the
floor as being “like polished ice.”
Wisconsin Avenue LLC, and WPC Management LLC.
(ECF No. 1).
April 12, 2016, the parties filed a consent motion to substitute
the United States for the Postmaster General, which was granted.
(ECF Nos. 18; 19).
After discovery, the United States filed the
pending motion to dismiss, or in the alternative for summary
judgment, on December 23.
(ECF No. 33).
Plaintiff responded to
the United States’ motion (ECF No. 40), and it replied (ECF No.
The Landlord Defendants filed their motion for summary
judgment on January 6, 2017 (ECF No. 36), and Plaintiff did not
respond in opposition.
The United States’ Motion To Dismiss
Standard of Review
presents a jurisdictional bar to Plaintiff’s claim.
jurisdiction must be decided first, because they concern the
court’s very power to hear the case.”
Owens-Illinois, Inc. v.
Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999).
The party bringing
suit in federal court bears the burden of proving that subject
matter jurisdiction properly exists.
See Evans v. B.F. Perkins
12(b)(1) motion, the court may consider evidence outside the
pleadings to help determine whether it has jurisdiction over the
case before it.
Richmond, Fredericksburg & Potomac R.R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Evans,
166 F.3d at 647.
The court should grant a Rule 12(b)(1) motion
“only if the material jurisdictional facts are not in dispute
and the moving party is entitled to prevail as a matter of law.”
Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768.
Plaintiff alleges that the United States was negligent in
failing to place additional matting on the lobby floor or to
post warning signs on the evening of the accident.
(ECF No. 1
The United States is generally immune from suits by
private individuals, but the Federal Tort Claims Act (“FTCA”)
respect to certain types of tort actions.
See 28 U.S.C. §§
Under the FTCA, the United States is liable 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 under the scope of his office or
Id. § 1346(b).
The potential liability of the
Holbrook v. United States, 673 F.3d 341, 345 (4th
One such exception is for discretionary functions.
See 28 U.S.C. § 2680(a).
“The discretionary function exception ‘marks the boundary
between Congress’ willingness to impose tort liability upon the
activities from exposure to suit by private individuals.’”
Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)).
the exception, the United States may not be held liable for any
claim based upon (1) “an act or omission of an employee of the
Government, exercising due care, in the execution of a statute
failure to exercise or perform a discretionary function or duty
on part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.”
28 U.S.C. §
discretionary function exception does not apply.
Ins. Co. v. United States, 569 F.3d 175, 180 (4th Cir. 2009).
district court must dismiss the affected claims for lack of
subject matter jurisdiction.”
Determining whether an act is discretionary under the FTCA
employee cannot fall within the discretionary function exception
Holbrook, 673 F.3d at 345 (citing Berkovitz v. United States,
486 U.S. 531, 536 (1988)).
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 ‘the employee has no rightful option but to
adhere to the directive.’”
Indem. Ins. Co., 569 F.3d at 180
(quoting Berkovitz, 486 U.S. at 536).
Second, “even if ‘the
challenged conduct involves an element of judgment, a court must
discretionary function exception was designed to shield,’ that
Smith v. Wash. Metro Area Transit Auth., 290 F.3d
201, 208 (4th Cir. 2002) (quoting Berkovitz, 486 U.S. at 537).
agent’s subjective intent in exercising the discretion, but on
susceptible to policy analysis.”
U.S. 315, 325 (1991).
United States v. Gaubert, 499
In other words, analysis under the second
prong of the discretionary function exception is not a factintensive exercise, as the court will only “look to the nature
of the challenged decision in an objective, or general sense,
inherently to be grounded in considerations of policy.”
United States, 986 F.2d 716, 721 (4th Cir. 1993).
“Where . . . a
regulation authorizes or requires employee discretion, ‘it must
be presumed that the agent’s acts are grounded in policy when
(quoting Gaubert, 499 U.S. at 324).
The United States argues that it is immune from liability
because the postmaster’s decision to keep the lobby open twentyfour hours is a discretionary function.
(ECF No. 33-1, at 12).
It maintains that the POM specifically grants the postmaster
discretion and that there is no other statute, regulation, or
policy on point that would limit the “judgment or choice” at the
first step of the discretionary function inquiry.
does not dispute that the decision to stay open twenty-four
hours is discretionary.
Rather, he counters that the United
States focuses on the wrong conduct.
The proper conduct at
issue, he contends, is the United States’ failure to mitigate
possible danger by putting out floor mats and warning signs as
prescribed in the Maintenance Handbook.
(ECF No. 40, at 11).
“Before a court can apply the two-part test to determine
whether the discretionary function exception applies, the court
must first identify the ‘conduct at issue.’”
Bell v. United
States, 238 F.3d 419 (6th Cir. 2000) (unpublished table opinion).
In a similar case, the United States Court of Appeals for the
Fourth Circuit held that, where the United States’ “maintenance
overarching policies . . . that gives officers discretion,” the
decision made under the overarching policy is the conduct at
Wood v. United States, 845 F.3d 123, 131 (4th Cir. 2017).
In Wood, the Fourth Circuit found that the Navy’s “first-order
decision” of whether and how to allow the use of its facilities
discretion by statute, encompassed “several additional decisions
. . . under the umbrella of its initial decision . . . [that]
expressed in the statutes.”
Id. at 130.
The court found that
particular part of the facility was too narrow to be the conduct
Id. at 131.
Exposing the government to liability for
such decisions would make the threat of tort liability so strong
as to shape the Navy’s discretionary decision whether or not to
exception seeks to avoid.”
Courts of Appeals in two other circuits have reviewed facts
conduct at issue was the postmaster’s decision to stay open
F.App’x 33, 36 (11th Cir. 2012); Bell, 238 F.3d 419, 2000 WL
170932, at *4.
Plaintiff’s attempts to distinguish this case
from Hogan and Bell on minor factual differences (see ECF No.
40, at 12-17) are unpersuasive.
Primarily, Plaintiff argues
that Hogan and Bell were wrongly decided and that it “simply
does not make sense that the mandates found in the [Maintenance]
Handbook should be utilized during business hours but do [not]
Plaintiff’s proposal would also compel the government to follow
the Maintenance Handbook’s requirements that it “[r]epeatedly
mop up water that has been tracked in” or for failing, “[a]fter
scrubbing or wet mopping the floor, [to] check it for slippery
(See ECF No. 40-4, at 7).
Quite clearly, the United
Handbook while exercising discretion to leave the lobby open and
To hold the government liable for failing to do so
here would allow “[t]he threat of tort liability [to] become a
discretionary function exception seeks to avoid.”
F.3d at 131.
The conduct at issue is therefore the postmaster’s
decision to leave the lobby open for twenty-four hours.
function exception, then, the postmaster’s decision to keep the
lobby open twenty-four hours clearly “involves an element of
judgment or choice.”
Holbrook, 673 F.3d at 345.
above, the POM states, “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
(ECF No. 33-6, at 108).
Although the POM mentions
safety provisions, “nothing about [the POM] suggests that it
contained in the Postal Service Maintenance Handbook.”
discretionary function test is satisfied.
The postmaster’s discretion is limited only by the
requirement that “customer safety and security provisions are
deemed adequate by the Inspection Service.”
(ECF No. 33-6, at
The Inspection Service is “the federal law enforcement,
crime prevention, and security arm of the Postal Service” tasked
with “protect[ing] the U.S. Postal Service and its employees,
function exception, the postmaster’s decision to keep the lobby
open twenty-four hours is “susceptible to policy analysis.”
Gaubert, 499 U.S. at 325.
The decision to leave the lobby open
is an operational decision that requires an evaluation of the
costs to the government and the benefit to the community.
See Smith, 290 F.3d at 209.
prong of the test is satisfied, and the discretionary function
subject matter jurisdiction, and the United States’ motion to
dismiss will be granted.3
infrastructure, and customers; enforc[ing] the laws that defend
the nation’s mail system from illegal or dangerous use; and
ensur[ing] public trust in the mail.”
See Mission Statement,
U.S. Postal Inspection Serv., https://postalinspectors.uspis.gov
/aboutus/mission.aspx (last visited June 26, 2017); see also
visited June 26, 2017) (enumerating the types of enforcement
Maintenance Handbook is produced by a separate USPS entity, the
Office of Maintenance Management.
(ECF No. 40-4, at 2).
Inspection Service therefore does not appear to have any bearing
on custodial decisions like the ones at issue in this case.
Because the court lacks subject matter jurisdiction over
Plaintiff’s claim, the United States’ substantive tort arguments
are not considered in this opinion.
III. The Landlord Defendants’ Motion For Summary Judgment
Standard of Review
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
generally bears the burden of showing that there is no genuine
dispute as to any material fact.
Liberty Lobby, 477 U.S. at
A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”
Id. at 249.
In undertaking this
inferences drawn therefrom “in the light most favorable to the
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also
EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir.
2005), but a “party cannot create a genuine dispute of material
Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation
To prove negligence under Maryland law, a plaintiff must
show that: (1) the defendant was under a duty to protect the
plaintiff from injury; (2) the defendant breached that duty; (3)
the plaintiff suffered actual injury or loss; and (4) the loss
or injury proximately resulted from the defendant’s breach of
The Landlord Defendants assert that summary judgment is
warranted in their favor because they were under no duty as
(ECF No. 36, at 1-2).4
The Court of
ordinarily liable to a tenant or guest of a tenant for injuries
from a hazardous condition in the leased premises that comes
into existence after the tenant has taken possession.”
The Landlord Defendants do not challenge subject matter
jurisdiction in this case.
Because Plaintiff and the Landlord
Defendants are all residents of Maryland, jurisdiction over
these Defendants appears to be supplemental to Plaintiff’s claim
against the United States under the FTCA. A federal court “may
decline to exercise supplemental jurisdiction . . . if . . . the
district court has dismissed all claims over which it has
28 U.S.C. § 1367(c)(3).
Even when a
court grants a motion to dismiss for failure to state a federal
claim, however, “the court generally retains discretion to
exercise supplemental jurisdiction, pursuant to 28 U.S.C. §
1367, over pendent state-law claims.” Arbaugh v. Y&H Corp., 546
U.S. 500, 514 (2006).
Because the substantive claims in the
Landlord Defendants’ motion can be easily resolved without
consideration of novel or complex issues of Maryland law, the
Landlord Defendants’ motion will be considered.
Matthews v. Amberwood Assocs. Ltd. P’ship, 351 Md. 544, 556-57
Marshall v. Price, 162 Md. 687, 689 (1932)).
Defendants’ motion, and it is undisputed that the United States
had leased and taken possession of the Bethesda Post Office
property at the time of Plaintiff’s injury.
(See ECF No. 36-2,
judgment will be granted.
For the foregoing reasons, the motion to dismiss filed by
Defendant the United States of America will be granted, and the
motion for summary judgment filed by Defendants 6900 Wisconsin
Avenue LLC and WPC Management LLC will be granted.
order will follow.
DEBORAH K. CHASANOW
United States District Judge
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