Uke v. United States of America

Filing 35

MEMORANDUM AND ORDER (Written Opinion). LET JUDGMENT BE ENTERED ACCORDINGLY. Signed by The Hon. Paul A. Magnuson on 10/4/2018. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Patrick Uke,

Civ. No. 17-1316 (PAM/SER)
Plaintiff,

v.

MEMORANDUM AND ORDER

United States of America,
Defendant.

This matter was tried to the Court on September 18, 2018. At issue is Plaintiff’s
claim that the United States Postal Service (“USPS”) is liable under the Federal Tort
Claims Act (“FTCA”) for injuries Plaintiff suffered at a postal facility. For the following
reasons, the Court grants Plaintiff judgment on his claim.
BACKGROUND
On December 30, 2013, Plaintiff Patrick Uke walked from his law office to the
Powderhorn Post Office in Minneapolis, Minnesota. As he approached the door of the Post
Office, he slipped and fell, seriously injuring his ankle. He was transported by ambulance
to Hennepin County Medical Center, where he was diagnosed with a trimalleolar fracture
of his ankle. He has undergone two surgeries and alleges that he still experiences pain in
the ankle so that he cannot perform all the physical tasks he performed before his accident.
Uke brought an administrative claim against the USPS in November 2015. The
USPS denied the claim, and this lawsuit followed.

DISCUSSION
The FTCA operates to waive the federal government’s sovereign immunity for
certain tort claims, so that the United States is “liable to the same extent as a private party
for certain torts of federal employees acting within the scope of their employment.” United
States v. Orleans, 425 U.S. 807, 813 (1976). As relevant here, the FTCA waives sovereign
immunity for “personal injury . . . caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person, would be
liable to the claimant.” 28 U.S.C. § 1346(b)(1).
A.

Negligence
Under Minnesota law, a possessor of land is not liable to individuals who come on

the land and are injured by a known or obvious danger, “unless the possessor should
anticipate the harm despite such knowledge or obviousness.” Adee v. Evanson, 281
N.W.2d 177, 179 (Minn. 1979) (quoting Restatement (Second) of Torts § 343A(1)). “Thus,
a landowner has a continuing duty to protect an entrant ‘even for obvious dangers . . . if
harm to an [entrant] should be anticipated despite the obviousness of the danger.’”
Godbout v. City of Cloquet, No. C3-97-1345, 1998 WL 51472, at *1 (Minn. Ct. App. Feb.
10, 1998) (quoting Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995)).
The evidence at trial established that the USPS knew that the sidewalk on which
Uke slipped was hazardous in the winter. Water accumulated on the sidewalk under an
extension of the property’s roof, which had leaked for years. And despite the USPS’s
contention that the property’s landlord bears responsibility for the hazardous condition, the
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evidence establishes that snow removal was the USPS’s responsibility. (Ex. 16.) The
Court concludes that the USPS should have anticipated the harm given its knowledge that
ice was prone to build up on the sidewalk. Moreover, there was sufficient evidence
proffered to conclude that the ice was not open and obvious, because of the light snow that
fell throughout the day of Uke’s accident. “The test is not whether the injured party
actually saw the danger, but whether it was in fact visible.” Munoz v. Applebaum’s Food
Market, Inc., 196 N.W.2d 921, 922 (Minn. 1972). Uke has met his burden to establish the
USPS’s negligence here, and that this negligence caused his injury.
B.

Damages
There is no dispute that Uke’s past medical bills total $54,075.71. The parties

dispute only the extent of Uke’s damages for pain and suffering and future medical
expenses.
The parties presented conflicting evidence about the extent of Uke’s pain and
disability because of the accident. The question of his future impairment is made more
complex by the fact that, approximately a year after the accident, Uke was diagnosed with
ankylosing spondylitis (AKS), which his orthopedic surgeon described as a “genetic
condition that creates autofusion of the spine and a progressive forward-leaning posture.”
(Mueller Dep. at 13.) There is no evidence that Uke’s AKS diagnosis was in any way
related to his fall, nor that the AKS could have been caused by his fall. Thus, although
both Uke and Linda Graham, Uke’s lifecare expert, conflated the symptoms and problems
related to Uke’s ankle injury with the symptoms and problems related to Uke’s AKS, the

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two are distinct and the USPS is not responsible for any of Uke’s medical expenses or
physical issues caused by his AKS.
1.

Pain and suffering

There is no serious dispute that Uke’s injury was extremely painful, that it caused
him severe pain for many months, that he continues to suffer from at least intermittent pain
or discomfort, and that his pain or discomfort may be permanent. “There is no precise or
exact measuring stick for calculating general damages for pain and suffering.” Taken Alive
v. Litzau, 551 F.2d 196, 198 (8th Cir. 1977). Moreover, reference to other awards are “not
particularly helpful” and may even constitute an abuse of discretion. McCabe v. Parker,
608 F.3d 1068, 1080 (8th Cir. 2010) (quotation omitted). Rather, each case must be judged
on its own facts.
In the Court’s view, Uke is due compensation for the pain he has suffered and will
continue to suffer. The Court awards him $100,000 for past and future pain and suffering.
2.

Future medical expenses

Linda Graham testified that Uke will require extensive support services, including
outdoor services such as lawn-mowing, snow-shoveling, and raking. In addition, she
testified that Uke will require adaptive equipment such as a recliner chair, a shower bench,
and possibly a wheelchair or scooter. She opined that Uke requires a membership at a gym
and estimated his future healthcare costs to be between $1,000 and $3,000 per year. In
total, Ms. Graham testified that Uke’s future medical expenses, including adaptive
equipment, home services, medical care, medicine, and other necessities, are $212,895.

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But most of Ms. Graham’s opinions are not supported by the medical evidence. For
example, no doctor has recommended that Uke use a wheelchair, or that he requires a
special bed or recliner chair. No physician has limited his physical activities or found him
to be so disabled that he cannot perform routine maintenance tasks such as mowing the
lawn or raking leaves. (See Mueller Dep. at 44 (testifying that Uke does not need help
around the house); Coetzee Dep. at 21-22 (testifying that Uke should be able to mow grass,
rake leaves, and shovel snow).) And there is no medical evidence to support future
healthcare costs of between $1,000 and $3,000 per year. Indeed, there is no evidence that
Uke has seen any medical provider for his ankle since 2016, other than the independent
medical examination performed in anticipation of this trial.
The Court credits Uke’s statements that he sometimes requires a cane, and that
certain adaptive equipment such as shoes or a specialized bed have helped his pain and
allowed him to ambulate more normally. The value of such equipment, however, is far
lower than the amount Graham estimated. The evidence establishes that Uke’s future
medical costs will be no more than $15,000 in today’s dollars, and the Court therefore
awards Uke that amount.
CONCLUSION
Having found the USPS negligent and liable to Uke under the FTCA, IT IS
HEREBY ORDERED that Uke is entitled to judgment against the United States in the

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amount of $54,075.71 for past medical bills, $100,000 for pain and suffering, and $15,000
for future medical expenses, for a total of $169,075.71.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: October 4, 2018

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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