Krey v. Brennan et al

Filing 44

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
:
v.

:

Civil Action No. DKC 15-3800

:
MEGAN BRENNAN, Postmaster
General, United States Postal
Service, et al.

:
:

MEMORANDUM OPINION
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
(the

“United

States”)

(ECF

No.

33),

and

(2)

the

motion

for

summary judgment filed by Defendants 6900 Wisconsin Avenue LLC
and WPC Management LLC (the “Landlord Defendants”) (ECF No. 36).
The

issues

have

been

briefed,

and

hearing being deemed necessary.

the

court

now

rules,

Local Rule 105.6.

no

For the

following reasons, both motions will be granted.
I.

Background1
The Landlord Defendants own the building located at 6900

Wisconsin Avenue in Bethesda, Maryland, which they lease to the
United
1

States.

(ECF

No.

36-2,

at

2).

The

United

States

Unless otherwise noted, the facts outlined here are
undisputed and construed in the light most favorable to
Plaintiff.

operates a branch of the United States Postal Service (“USPS”)
out of this location (the “Bethesda Post Office”).
December

20,

2012,

Plaintiff

Karl

Heinz

Krey

(Id.).

On

(“Plaintiff”)

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
broken hip.

(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
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.”
at 108).

(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
day

pursuant

provision.

Handbook

the

postmaster’s

decision

under

this

POM

(ECF No. 33-3, at 19).

During
generally

to

wet

weather

follows
on

Handbook”)

Floors,
published

Maintenance.

conditions,

procedures
Care,
by

Bethesda

outlined

and

the

the

in

Maintenance

USPS

Office

Office

the

Maintenance

(the

“Maintenance

of

Management

The Maintenance Handbook states:

In order to avoid serious injuries
caused by slips and falls on wet
floors, use the following guidelines:
2

Post

and

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
rope.
m. During rainy or snowy weather,
place
safety
matting
in
employee/customer entrances, such as
lobbies and vestibules.
n. Repeatedly mop
has been tracked in.

up

water

that

o.
When
mopping
floors, complete work
section at a time.

or
scrubbing
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).
employee

at

the

After the service windows close, the last

Bethesda

Post

Office

condition of the lobby at around 6:30 p.m.
28).

usually

checks

the

(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.
In

his

deposition,

(ECF No. 33-3, at 17-18, 20).

Plaintiff’s

expert,

Scott

Moore,

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

3

afternoon.

(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).

Nevertheless,

Bethesda Post Office employees did not place additional matting
or caution signs that night.

(ECF No. 33-2, at 21).

By the

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).
floor,

he

fracture.

As Plaintiff was taking a step on to the linoleum

fell

onto

(Id.).

his

right

December

negligence

against

causing

a

right-hip

In Plaintiff’s deposition, he described the

floor as being “like polished ice.”
On

side,

15,
the

2015,

(Id.).

Plaintiff

Postmaster

filed

General

of

Wisconsin Avenue LLC, and WPC Management LLC.

a

complaint
the

USPS,

(ECF No. 1).

for
6900
On

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.
43).

The Landlord Defendants filed their motion for summary

judgment on January 6, 2017 (ECF No. 36), and Plaintiff did not
respond in opposition.

4

II.

The United States’ Motion To Dismiss

A.

Standard of Review
The

United

States

first

argues

that

sovereign

presents a jurisdictional bar to Plaintiff’s claim.
33-1,

at

20).

Generally,

“questions

of

immunity
(ECF No.

subject

matter

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.
Co.,

166

F.3d

642,

647

(4th

Cir.

See Evans v. B.F. Perkins
1999).

In

a

Fed.R.Civ.P.

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.
B.

Analysis
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.
¶¶ 22-26).

(ECF No. 1

The United States is generally immune from suits by
5

private individuals, but the Federal Tort Claims Act (“FTCA”)
provides

a

limited

waiver

of

that

sovereign

respect to certain types of tort actions.
1346(b), 2674.

immunity

with

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
employment.”
United

Id. § 1346(b).

States

under

the

The potential liability of the

FTCA

is

limited

“by

a

number

of

exceptions.”

Holbrook v. United States, 673 F.3d 341, 345 (4th

Cir. 2012).

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
United

States

and

its

desire

to

protect

certain

government

activities from exposure to suit by private individuals.’”

Id.

(quoting

Rio

United

States

v.

S.A.

Empresa

de

Viacao

Aerea

Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)).

Under

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
or

regulation,”

or

(2)

“the

exercise

or

performance

or

the

failure to exercise or perform a discretionary function or duty
on part of a federal agency or an employee of the Government,
6

whether or not the discretion involved be abused.”
2680(a).

Plaintiff

bears

the

burden

of

28 U.S.C. §

showing

discretionary function exception does not apply.

that

the

See Indem.

Ins. Co. v. United States, 569 F.3d 175, 180 (4th Cir. 2009).
“If

the

discretionary

function

exception

does

apply,

the

district court must dismiss the affected claims for lack of
subject matter jurisdiction.”

Id.

Determining whether an act is discretionary under the FTCA
involves

a

two-step

process.

First,

conduct

by

a

federal

employee cannot fall within the discretionary function exception
unless

it

“involves

an

element

of

judgment

or

choice.”

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
determine

whether

that

judgment

is

of

the

kind

that

the

discretionary function exception was designed to shield,’ that
is,

decisions

policy.’”

‘grounded

in

social,

economic,

and

political

Smith v. Wash. Metro Area Transit Auth., 290 F.3d

201, 208 (4th Cir. 2002) (quoting Berkovitz, 486 U.S. at 537).
7

In

considering

this

step,

the

court

does

not

focus

on

“the

agent’s subjective intent in exercising the discretion, but on
the

nature

of

the

actions

taken

susceptible to policy analysis.”
U.S. 315, 325 (1991).

and

on

whether

they

are

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,
and

ask

whether

that

decision

is

one

which

we

would

inherently to be grounded in considerations of policy.”
United States, 986 F.2d 716, 721 (4th Cir. 1993).

expect
Baum v.

“Where . . . a

regulation authorizes or requires employee discretion, ‘it must
be presumed that the agent’s acts are grounded in policy when
exercising

that

discretion.’”

Holbrook,

673

F.3d

at

345

(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.

Plaintiff

does not dispute that the decision to stay open twenty-four
hours is discretionary.

Rather, he counters that the United
8

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
decisions

with

respect

to

facilities

.

.

.

fall

within

the

overarching policies . . . that gives officers discretion,” the
decision made under the overarching policy is the conduct at
issue.

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
by

local

law

enforcement

agencies,

a

decision

committed

to

discretion by statute, encompassed “several additional decisions
. . . under the umbrella of its initial decision . . . [that]
were

necessarily

informed

by

the

same

expressed in the statutes.”

Id. at 130.

the

place

Navy’s

decision

not

to

a

policy

considerations

The court found that

warning

sign

next

to

a

particular part of the facility was too narrow to be the conduct
at issue.

Id. at 131.

Exposing the government to liability for
9

such decisions would make the threat of tort liability so strong
as to shape the Navy’s discretionary decision whether or not to
open,

“which

is

exactly

exception seeks to avoid.”

what

the

discretionary

function

Id.

Courts of Appeals in two other circuits have reviewed facts
nearly

identical

to

those

presented

here

and

held

that

the

conduct at issue was the postmaster’s decision to stay open
twenty-four

hours.

See

Hogan

v.

U.S.

Postmaster

Gen.,

492

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]
have

to

be

suggested.”

adhered
(Id.

to
at

after
13).

hours[,]
By

the

as
same

the

Hogan

logic,

court

however,

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
film.”
States

(See ECF No. 40-4, at 7).
could

not

maintain

the

Quite clearly, the United

standards

in

the

Maintenance

Handbook while exercising discretion to leave the lobby open and
10

unstaffed.

To hold the government liable for failing to do so

here would allow “[t]he threat of tort liability [to] become a
tool

to

shape

[the]

policy,

which

is

exactly

what

discretionary function exception seeks to avoid.”
F.3d at 131.

the

Wood, 845

The conduct at issue is therefore the postmaster’s

decision to leave the lobby open for twenty-four hours.
With

respect

to

the

first

prong

of

the

discretionary

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.

As noted

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
Service.”

(ECF No. 33-6, at 108).

Although the POM mentions

safety provisions, “nothing about [the POM] suggests that it
mandates

the

specific

procedures

for

wet

floor

maintenance

contained in the Postal Service Maintenance Handbook.”
492

F.App’x

at

36.2

Therefore,

the

first

prong

Hogan,
of

the

discretionary function test is satisfied.

2

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
108).
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,
11

With

respect

to

the

second

prong

of

the

discretionary

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.

See

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.

It

inherently

or

“involves

economic judgment.’”

the

‘exercise

of

political,

See Smith, 290 F.3d at 209.

social,

The second

prong of the test is satisfied, and the discretionary function
exception

to

the

FTCA

applies.

Therefore,

the

court

lacks

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
Jurisdiction
and
Laws,
U.S.
Postal
Inspection
Serv.,
https://postalinspectors.uspis.gov/aboutus/laws.aspx
(last
visited June 26, 2017) (enumerating the types of enforcement
actions
under
the
Inspection
Service’s
purview).
The
Maintenance Handbook is produced by a separate USPS entity, the
Office of Maintenance Management.
(ECF No. 40-4, at 2).
The
Inspection Service therefore does not appear to have any bearing
on custodial decisions like the ones at issue in this case.
3

Because the court lacks subject matter jurisdiction over
Plaintiff’s claim, the United States’ substantive tort arguments
are not considered in this opinion.
12

III. The Landlord Defendants’ Motion For Summary Judgment
A.

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
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
prevail

on

a

motion

for

summary

judgment,

the

moving

250
To

party

generally bears the burden of showing that there is no genuine
dispute as to any material fact.
248-50.

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.”
inquiry,

a

court

must

Id. at 249.

view

the

facts

In undertaking this
and

the

reasonable

inferences drawn therefrom “in the light most favorable to the
party

opposing

the

motion,”

Matsushita

Elec.

Indus.

Co.

v.

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
fact

through

mere

speculation

or

compilation

of

inferences.”

Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation
omitted).
13

B.

Analysis
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

duty.

(1999).

Valentine

v.

On

Target,

Inc.,

353

Md.

544,

549

The Landlord Defendants assert that summary judgment is

warranted in their favor because they were under no duty as
lessors

of

the

property

dangerous conditions.
Appeals

of

Maryland

to

protect

Plaintiff

(ECF No. 36, at 1-2).4
has

long

held

that

“a

from

alleged

The Court of

landlord

is

not

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.”

4

See

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
original jurisdiction.”
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.
14

Matthews v. Amberwood Assocs. Ltd. P’ship, 351 Md. 544, 556-57
(1998) (citing
Plaintiff

Marshall v. Price, 162 Md. 687, 689 (1932)).

failed

to

offer

any

opposition

to

the

Landlord

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.
at

2).

protect

Therefore,
Plaintiff

the

from

Landlord
injury,

(See ECF No. 36-2,

Defendants

and

their

had

motion

no
for

duty

to

summary

judgment will be granted.
IV.

Conclusion
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.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

15