Marsh v. United States of America

Filing 40

Magistrate Judge Marianne B. Bowler: ORDER entered. FINDINGS OF FACT AND CONCLUSIONS OF LAW. The negligence claim lacks merit and plaintiff is not entitled to relief. A final judgment will therefore enter in favor of the government. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

BRADLEY MARSH,
Plaintiff,
v.

CIVIL ACTION. NO.
15-13061-MBB

UNITED STATES OF AMERICA,
Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
June 19, 2017
BOWLER, U.S.M.J.
This case arises out of a fall plaintiff Bradley Marsh
(“plaintiff”) suffered the morning of February 12, 2013 while
trying to mail a letter outside a United States post office in
Hanson, Massachusetts.

Plaintiff seeks recovery from the United

States (“the government”) under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346, 2671-2680, on the basis that the
government did not exercise reasonable care to prevent an
accumulation of snow and ice on a walkway at the post office.1
In response to the one-count complaint of negligence, the
government’s answer sets out that it sufficiently met its duty to
provide a reasonable standard of care in maintaining the

1

At the outset of the trial on November 28, 2016 and in
response to the government’s amended pretrial memorandum
asserting a jurisdictional argument based on discretionary
function, plaintiff stated that he is not asserting a negligent
hiring claim. Rather, this action is a pure negligence case.

walkways.
In addition to plaintiff, the following witnesses testified
at a bench trial before this court:

Auberon Moustakes

(“Moustakes”), an 18 year old high school student at the time;
Karen McGill (“McGill”), the officer in charge at the post office
in February 2013; and Michael W. McCue (“McCue”), the town
administrator in the Town of Hanson.
FACTUAL FINDINGS
The accident occurred at the Monponsett Post Office in
Hanson, Massachusetts.

The parties agree that the post office is

“located at 935 Monponsett Street” in Hanson and “controlled by
the United States Postal Service.”
2).

(Docket Entry ## 24, 31, ¶¶

They also agree that, “On or about February 12, 2013,” the

property located at this address “was owned and/or otherwise
controlled by United States of America” and that the “United
States of America was operating a Post Office” on the property.
(Docket Entry ## 24, 31, ¶¶ 2).
disputed.

The remaining facts are

This court finds the following facts.

The Monponsett Post Office is a rural post office that does
not provide delivery services.

It serves a small community and

the building itself resembles a small, one story house.

The post

office has post office boxes and provides retail services such as
providing postage and weighing packages.

Separate and apart from

Moustakes and Gordan Andrews (“Andrews”), who plowed the
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facility’s two parking lots, McGill was the only employee at the
facility.

As the officer in charge, she was responsible for

sorting mail, operating the retail counter, tracking and ordering
inventory as well as snow and ice removal.

More specifically,

she was responsible for clearing snow and ice from the walkway
where plaintiff fell at approximately 6:15 a.m. on Tuesday,
February 12, 2013.

McGill was trained in keeping the area clear

and, having worked at the Monponsett Post Office since 2000, was
familiar with operations at the facility.
The post office was open from 8:00 a.m. to 5:30 p.m. Monday
through Friday and from 9:00 a.m. to 12:30 p.m. on Saturdays.
The Hallifax Post Office, another post office in the area, was a
short distance away and had a mailbox which allowed customers to
drop off mail without leaving their cars.

Another post office

near where plaintiff works had a mailbox under an overhang and
protected from the elements.
In February 2013, the Monponsett Post Office had three
walkways and two parking lots.
lot.

One walkway led to a back parking

Each of the other two walkways allowed patrons to access a

large blue carrier collection box in front of the post office.
The two walkways formed a loop from the front door to the
collection box and to the side parking lot.
From February 8 to 9, 2013, there was a blizzard which left
more than 20 inches of snow on the ground outside the post
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office.

The blizzard was so severe that a state of emergency was

declared in the area and the post office was closed on Saturday,
February 9, 2013.

When McGill arrived at work at 8:00 a.m. on

Monday, February 11, 2013 the post office was without power.

It

had no heat, no lights, no electricity, no computer service, and
no landline telephone service.

The power outage remained

throughout the day on February 11, 2013.
Moustakes, an 18 year old high school student at the time,
shoveled and cleared snow at the post office during the winter of
2013.

Each time he cleared the ice and shoveled the snow, the

post office paid him $25.

He shoveled the paths on all of the

walkways to the post office twice on February 8, 2013 and five
separate times on February 10 and 11, 2013.

Each time he

undertook the task, he laid salt and sand on all of the walkways.
On February 11, 2013, he shoveled, sanded, and salted all of the
walkways before the post office opened.

He did not return to

shovel the walkways later in the day or evening.
McGill arrived for work at around 8:00 a.m. on February 11,
2013, parked in the back parking lot, entered the building, put
down her things, and opened the front door.
she then walked all of the walkways.

As was her practice,

The walkways were all level

to the ground, sanded, salted and safe to walk.

Moustakes had

done an “excellent job,” according to McGill, and she
convincingly testified about her excitement that she “did not
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have to shovel.”
Only a “very few” customers and “a lot less” than usual came
to the post office that day.

McGill spent most of the day

outside both to keep warm and to make sure the walkways were
safe.

She walked the walkways “many times” both to “keep busy”

and to keep the walkways safe.

The post office had a barrel of

sand and salt mixture with a scoop to distribute the mixture
along the walkways.

As was her standard procedure, McGill

repeatedly spread the sand and salt mixture along the walkways
throughout the day to keep the walkways refreshed.

When McGill

closed the post office for the day at 5:30 p.m., she testified
that the walkways were in “the same” condition.

She described

them as “clear,” “level to the ground,” covered with “a lot of
sand and salt,” and “safe to walk on.”
During the evening of February 11, there was no additional
precipitation.

At around 6:15 a.m. on February 12, plaintiff

drove to the post office, parked his car, and exited out into the
parking lot to mail a letter.

As the sun had not yet risen and

there were no lights due to the power outage, plaintiff struggled
to see the condition of the ground.

Plaintiff was not wearing

snow boots and felt that the ground was slippery.

As he

continued to walk on a shoveled, cleared, and well-salted walkway
toward a large blue, carrier collection box, he fell on his right
side on the walkway.

MRI results show he suffered tears to his
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right rotator cuff and biceps.

He did not report the fall until

two weeks later on February 25, when he returned to the post
office and informed the postmistress of the fall.
CONCLUSIONS OF LAW
By enacting the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346 and 2671 et seq., Congress expressly “waived the
government’s sovereign immunity with respect to private tort
actions.”

Roman-Cancel v. United States, 613 F.3d 37, 41 (1st

Cir. 2010); Roman v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000)
(FTCA waives “the sovereign immunity of the United States with
respect to tort claims”); 28 U.S.C. § 2674.

The Postal

Reorganization Act, 39 U.S.C. §§ 101 et seq., also instructs that
the FTCA “shall apply to tort claims arising out of activities of
the Postal Service.”

39 U.S.C. § 409(c).

The FTCA therefore

governs the liability of the government in this case.
In determining liability, the FTCA mandates application of
“the law of the place where the act or omission occurred.”

28

U.S.C. § 1346(b)(1); Calderon-Ortega v. U.S., 753 F.3d 250, 252
(1st Cir. 2014).

Massachusetts negligence law therefore applies.

In order to impose liability for negligence, “there must
first be a legal duty owed by the defendant to the plaintiff, and
a breach of that duty proximately resulting in the injury.”
Santos v. Coleta, 987 N.E.2d 1187, 1192 (Mass. 2013).

Dos

With

respect to the duty of a property owner for hazards arising from

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snow and ice, the property owner “owes to lawful visitors . . . a
duty to ‘act as a reasonable person under all of the
circumstances including the likelihood of injury to others, the
probable seriousness of such injuries, and the burden of reducing
or avoiding the risk,’” as well as “the amount of foot traffic to
be anticipated on the property.”

Papadopoulos v. Target Corp.,

930 N.E.2d 142, 154 (Mass. 2010) (quoting Mounsey v. Ellard 297
N.E.2d 43, 52 (Mass. 1973)).

To establish negligence, a

plaintiff must show that a defendant either placed the snow or
ice hazard where the accident occurred, knew of the existence of
the snow or ice hazard, or should have known about the hazard
because it was present “for such a length of time.”

Oliveri v.

Massachusetts Bay Transportation Authority, 292 N.E.2d 863, 864865 (Mass. 1973).

The reasonableness of a given length of time

largely “depends on the opportunity for discovery open to the
defendant’s employees by reason of their number, their physical
proximity to the condition in question, and, in general, the
likelihood that they would become aware of the condition in the
normal performance of their duties.”

Id.

The government more than sufficiently satisfied its duty to
lawful visitors to act as a reasonable person under the
circumstances.

McGill maintained the walkways in a reasonably

safe condition under the circumstances.

When she left the post

office at 5:30 p.m. on February 11, the walkway at issue was
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cleared of ice and was not slippery.

Given the very few patrons

throughout the day, it was reasonably anticipated that foot
traffic would be very light between the time McGill closed the
post office at 5:30 p.m. on February 11 and reopened the facility
at 8:00 a.m. the next morning.

The likelihood of a slip and fall

injury on the walkways was relatively remote because the paths
were clear, sanded, and not slippery as of 5:30 p.m. on February
11 and the weather forecast was clear.

McGill, who personally

inspected the walkway at issue, had no knowledge of a slippery or
unsafe condition on the walkway.

Because the walkways were clear

and in good condition when McGill left at 5:30 p.m., there was no
reason for her to contact Moustakes to clear them and very little
risk that they would not remain clear through the night.

In

fact, when McGill arrived the next morning, the walkways had
remained in the same, good condition.
The government met the required standard of care owed to
plaintiff.

McGill and Moustakes both shoveled and spread sand

and salt multiple times both during the storm and in the days
between the storm’s end and plaintiff’s fall, including
repeatedly on the day before plaintiff fell, just as “an added
precaution,” as stated by McGill.

McGill spent much of that day

walking the walkways and testified that they were level and safe
when she arrived that morning, when she left that night, and when
she returned the following morning.
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It was reasonably

anticipated that there would be little foot traffic during the
hours the post office was closed.

Because there was no

additional precipitation forecast between the time McGill left on
February 11 and when plaintiff fell the next morning, there was
no foreseeable reason why the walkways would not remain in the
same safe condition and thus only a very small likelihood of
injury.
Furthermore, even if conditions on the walkways had changed
during the night while the office was closed, the government is
not required to keep its premises completely dry and clear, but
only reasonably clear and safe.

See Athas v. United States 904

F.2d 79, 83 (1st Cir. 1990) (because of natural weather
conditions, post office was not required to keep grounds
completely dry).

“In this climate . . . a number of conditions

might exist which within a very short time could cause the
formation of ice . . . without fault of the owner and without
reasonable opportunity on his part to remove it or warn against
it or even to ascertain its presence.”

Barry v. Beverly

Enterprises-Massachusetts, Inc., 626 N.E.2d 26, 29 (Mass. 1994).
There is insufficient evidence that the government either
knew of unsafe conditions or should have known because a
reasonable length of time had passed.

It would be unreasonable

to expect the Monponsett Post Office, an office with a single
employee, few customers, and limited services, to maintain
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perfect conditions at all hours of the night following a
blizzard.

McGill’s repeated efforts shoveling, sanding, salting,

and monitoring the walkways during business hours satisfied the
reasonable level of care owed to plaintiff.

In sum, the

government did not breach any duty owed to plaintiff that
proximately resulted in the injury he claims he suffered on the
morning of February 12.
Because this court finds that the government was not
negligent in its duty, it is not necessary to address whether
Moustakes was an employee or an independant contractor.
Similarly, this court need not address the government’s
comparative negligence defense.
CONCLUSION
In accordance with the foregoing discussion, the negligence
claim lacks merit and plaintiff is not entitled to relief.

A

final judgment will therefore enter in favor of the government.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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