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
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