Porter v. USA

Filing 47

ORDER: For the reasons stated within this order, the court finds and rules in favor of the defendant. So Ordered by Judge Landya B. McCafferty.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Peter Porter
v.

Civil No. 14-cv-166-LM
Opinion No. 2015 DNH 234

United States of America

O R D E R
On July 9, 2010, Peter Porter was injured at the United
States Post Office in Claremont, New Hampshire, when a loading
dock ramp unexpectedly struck him in the back.

Porter has

brought suit against the United States of America, alleging a
claim of negligence under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 2671 et seq.
The court held a three-day bench trial in November 2015.
After considering the trial testimony and the record evidence,
the court concludes that the government was not negligent in
maintaining the ramps.

The court further concludes that, even

if the government were negligent, Porter was also negligent in
failing to exercise due care, and that Porter’s negligence
exceeded any negligence on the part of the government.

The

court’s findings of fact and rulings of law are set forth below.
See Fed. R. Civ. P. 52(a).

Findings of Fact
The court found Porter to be a credible witness.

His

testimony about the accident, how it occurred, and his injuries
thereafter was consistent and believable.

As a result, the

court’s findings of fact are drawn almost exclusively from
Porter’s testimony, except where necessary for background
information or to clarify certain facts.
Peter Porter began working for Mowers News Service
(“Mowers”) as a delivery driver in April 2010.

Mowers is a

contractor that delivers mail between postal facilities in
northern New Hampshire and Vermont.

Mowers assigned Porter to

three delivery routes, each of which involved stops at several
postal facilities.

As was customary at Mowers, Porter was

trained by experienced Mowers drivers.
trained Porter for each route.

A different driver

Porter had been working for

Mowers for approximately three months when, on July 9, 2010, he
was struck by a loading dock ramp while delivering mail to the
Claremont, New Hampshire, Post Office.
A.

Claremont Post Office
The loading dock at the Claremont Post Office is a large,

concrete platform that is approximately 32 or 33 inches high.
The loading dock is used by delivery drivers, who back their

2

delivery trucks to the front of the dock and load and unload
postal containers from it.

Two yellow bumpers, as far apart as

the width of a typical delivery truck and taller than the
loading dock, sit on the ground just in front of the dock.

The

bumpers are designed to prevent the delivery truck from backing
into the loading dock during a delivery.

When a truck is backed

up to the bumpers during a delivery, there is somewhere between
one and two feet between the loading dock and the back of the
truck.1
The loading dock has a built-in hydraulic lift designed to
be raised or lowered to meet the level of whatever truck is
being loaded or unloaded.

The lift has handrails on both the

right and left sides.
Two ramps are attached to the front of the lift.

Each ramp

is about three feet long and three feet wide and weighs between
80 and 100 pounds.

The ramps are upright when not in use and

lowered into position during loading.

The ramps are designed to

be raised and lowered independently, but they are attached to

1Although

there was testimony concerning the distance
between the loading dock and the edge of the bumpers, there was
no credible testimony as to the exact measurement. The court’s
finding that a truck backed up to the bumpers would leave
approximately one to two feet between the dock and the back of
the truck is based on pictures of the loading dock, entered as
exhibits, and testimony at trial.
3

the same axle.

In other words, when working properly, a driver

can lower one of the ramps without the other ramp moving.
The ramps are used to form a bridge between the lift and
the truck so that drivers can move postal containers off the
truck and onto the dock, and vice versa.

The ramps can be

raised and lowered to rest against the bed of the delivery truck
by using “snap chains,” which are metal chains attached to the
lift handrails on one end and the ramps on the other end.

The

snap chains can be slotted into hooks on the handrails, which
lock the ramps in place.

Even without being locked in place,

however, the ramps are not designed to fall over absent a driver
making an effort to lower them.

While in the upright position,

the ramps rest at a slight angle toward the lift and away from
the front of the dock, so that the ramps will not fall forward
on their own.
B.

Porter’s Training for the Claremont Post Office
George Sunn, an experienced Mowers driver, trained Porter

on the delivery procedure for the Claremont Post Office.

The

training consisted of Porter observing Sunn go through the
normal delivery procedures for one delivery.
his training as “monkey see, monkey do.”

Porter described

Based on his

observation of Sunn, Porter created a checklist.

4

During the training, Sunn backed up the truck to the yellow
bumpers in front of the loading dock.

Sunn next got out of the

truck, went around to the back, and opened the door.

Sunn

showed Porter how to raise and lower the loading dock lift, how
to raise and lower the ramps by using the snap chains, and how
to transfer postal containers to and from his delivery truck
using the lowered ramps as a bridge.

Sunn did not explicitly

tell Porter that the ramps should be lowered using the snap
chains while standing behind the ramps on the lift.

Nor did

Sunn explicitly tell Porter not to lower the ramps while
standing in front of them.
During Porter’s experience making deliveries for Mowers
prior to July 9, 2010, he observed drivers use different
techniques for raising and lowering the ramps at the various
postal facilities.

Some, like Sunn, raised and lowered the

ramps using the snap chains.

Other drivers would stand on the

lift and kick the ramps to knock them over, or ram a postal
container into both ramps to knock them over at the same time.
The latter techniques were used most often by Porter and other
drivers at facilities where the snap chains were broken.

Under

those circumstances, Porter and other drivers would raise the
ramps at the end of the delivery by standing on the ground and
pushing the ramps back into the upright position.
5

At no point during Porter’s training or experience as a
Mowers driver did he observe anyone attempt to lower one or both
of the ramps at any facility while standing in front of one of
the ramps or while standing on the ground.

During Porter’s

training and experience as a Mowers driver, Porter observed
every other driver lower the ramps, in some manner, while
standing behind the ramps on the lift.

No witness testified

that he or she had ever seen or heard of any delivery driver
lowering a ramp from the ground.
C.

Issues with the Ramps at the Claremont Post Office
For the most part, deliveries at the Claremont Post Office,

of which there were about six to eight a day, occurred without
incident, and the ramps at the post office worked as intended.
About three or four times a year, however, drivers would
complain to a post office employee that the ramps were “rough,”
in that they could not be raised or lowered easily.

The

roughness was generally caused either by cold weather or by
gravel or debris getting stuck in the axle.

The roughness of

the ramps was usually resolved by a driver applying WD-40 to the
ramp axles.

A can of WD-40 was left on the loading dock for

that purpose.

6

The Claremont Post Office used the United States Postal
Service maintenance department in Manchester, New Hampshire to
maintain its equipment.

From at least the fall of 2009 through

July 9, 2010, no one at the Claremont Post Office made a
maintenance call regarding the ramps.
On July 8, 2010, Sunn reported to Kristin Kiernan, the
Postmaster at the Claremont Post Office, that the ramps were
rough going down and could not be completely lowered.2

Sunn

applied WD-40 to the ramp axle, and he was then able to raise
and lower the ramps without difficulty.

After Sunn resolved the

issue, Kiernan did not receive any other complaints on July 8
concerning difficulties raising or lowering the ramps.
Porter offered the testimony of a former Claremont Post
Office employee, Jerome Goggin, to support his argument that the
Claremont Post Office had notice on July 8 of other problems
with the ramps.

Goggin testified that on the morning of July 8,

he noticed that both ramps were resting in the lowered position.
Goggin testified that he raised each ramp, but neither would

2Although

Kiernan did not testify as to who raised the
complaint concerning the ramps on July 8, Sunn testified that he
brought the issue to Kiernan’s attention. Sunn’s testimony is
supported by a “Motor Vehicle Accident Information Collection
Form” (“Accident Information Collection Form”), Plaintiff’s
Exhibit 20, which was completed on July 9, 2010, following
Porter’s accident. The form states that Sunn told Kiernan about
an issue with the ramps on July 8.
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stay in the upright position.

He testified that he then

reported the issue to Kiernan, and she was unable to get the
ramps to remain in the upright position.

Goggin also testified

that he did not know how or whether the issue with the ramps was
resolved.
The court does not credit Goggin’s testimony about the
ramps falling forward on July 8.

First, Goggin’s version of the

problem with the ramps is contradicted by the other evidence in
the record, including Kiernan’s and Sunn’s testimony, as well as
the Accident Information Collection Form completed the day of
Porter’s accident.

If Goggin’s version of events were true, and

the ramps could not remain upright, deliveries to the Claremont
Post Office would have come to a halt on July 8, as drivers
would have been unable to back their trucks up to the dock.
There was no evidence in the record to that effect.
there was evidence to the contrary.

Indeed,

As discussed below, Porter

testified that the ramps were in working order during his first
delivery on July 9.

A second reason the court does not credit

Goggin’s testimony about the condition of the ramps on July 8 is
his admitted animus toward Kiernan, with whom he had an
acrimonious workplace relationship.

The court finds that

Goggin’s animus toward Kiernan caused him to embellish his
testimony and exaggerate his role on July 8.
8

D.

Porter’s Accident
At about 4:45 a.m. on July 9, 2010, Porter arrived at the

Claremont Post Office.

As he had done approximately thirty

times before, Porter followed his usual procedure.

He backed

his truck up to the yellow bumpers in front of the loading dock,
and then got out and raised the back door of his truck.

Porter

next climbed the stairs to the loading dock, got onto the lift,
raised it to a height about even with his truck, and lowered the
ramps onto his truck bed from behind the ramps using the snap
chains.

He then used the ramps as a bridge to his truck, and

transferred the postal container from his truck onto the loading
dock and into the post office.

When he finished making his

delivery, he returned to the lift, lowered it to its original
height, pulled up the ramps by the snap chains, pulled the door
to the back of his truck down, and proceeded to the next postal
facility on his route.
Later on the morning of July 9, at approximately 6:45 a.m.,
Porter made a second delivery at the Claremont Post Office.

As

with his earlier delivery, Porter backed his truck up to the
yellow bumpers in front of the loading dock, got out, and raised
the back door of the truck.

Unlike Porter’s first trip to the

Claremont Post Office that morning, there was a postal container
on the loading dock.

Porter pushed the postal container onto
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the lift and raised the lift to a height approximately equal to
his truck.

As with his prior deliveries to the Claremont Post

Office, Porter was aware that the ramps were not secured in
place.
Porter was planning to push both ramps down onto his truck
bed using the postal container.

Just before he did so, however,

he noticed that his truck door was not fully opened, and was not
high enough for the postal container to fit underneath.

Porter

stepped off the back of the lift onto the ground, and stood
between the back of his truck and the loading dock.

Porter then

raised his truck’s back door to the top.
Rather than return to his position on the lift and lower
the ramps from behind, as he had always done in the past, Porter
chose to lower the ramps from the front where he was standing on
the ground.

Standing in front of the left ramp (as you face the

ramps from the ground), Porter put his left hand between the two
ramps, and pulled the right ramp down.

When he did, the left

ramp also came down, striking him on the back.
Porter immediately went inside the post office and reported
the problem with the ramps and his injury.

Kiernan, who arrived

around fifteen minutes after the accident, asked Porter to
demonstrate how the accident happened.

She also asked Porter to

lift up the back of his shirt, and she took a photograph of a
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small red contusion on his lower back, which was the only mark
she saw.
Porter continued to make deliveries for Mowers for a few
weeks after the accident.

Because of pain and discomfort in his

back and neck, Porter stopped working in late July 2010.

Since

that time, he has undergone surgeries on both his cervical and
lumbar spine, and sought treatment for pain in his neck and
back.

The testimony at trial, including that of Porter and his

physician, Dr. Joseph Michael Phillips, credibly established
that the accident at the Claremont Post Office caused the neck
and back pain Porter has suffered since July 9, 2010.
Legal Standards
The FTCA vests district courts with exclusive jurisdiction
to hear
civil actions on claims against the United States, for
money damages . . . 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 . . . under circumstances where the United
States, if a private person, would be liable to the
claimant in accordance with the law of the place where
the act or omission occurred.
28 U.S.C. § 1346(b)(1).

Here, because the acts or omissions

giving rise to Porter’s claim occurred in New Hampshire, the
substantive law of New Hampshire governs this lawsuit.

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González-Rucci v. United States I.N.S., 539 F.3d 66, 69 (1st
Cir. 2008).
To prove negligence under New Hampshire law, a plaintiff
“must demonstrate that the defendant had a duty to the
plaintiff, that she breached that duty, and that the breach
proximately caused injury to the plaintiff.”
Brianas, 166 N.H. 369, 371 (2014).

England v.

Duty in a negligence case

depends on “what risks, if any, are reasonably foreseeable under
the particular circumstances.”

Macie v. Helms, 156 N.H. 222,

224 (2007).
“[A]s a general proposition, business owners have a duty to
protect and/or warn their customers, employees, and business
invitees against known and reasonably foreseeable dangers on the
premises.”

Werst v. Wal-Mart Stores, Inc., No. 09-cv-392-SM,

2011 WL 4711900, at *3 (D.N.H. Oct. 4, 2011).

In Rallis v.

Demoulas Super Markets, Inc., the New Hampshire Supreme Court
defined this duty as follows:
[P]remises owners are governed by the test of
reasonable care under all the circumstances in the
maintenance and operation of their premises. A
premises owner owes a duty to entrants to use ordinary
care to keep the premises in a reasonably safe
condition, to warn entrants of dangerous conditions[,]
and to take reasonable precautions to protect them
against foreseeable dangers arising out of the
arrangements or use of the premises. Accordingly,
under New Hampshire law, a premises owner is subject
to liability for harm caused to entrants on the
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premises if the harm results either from: (1) the
owner’s failure to carry out his activities with
reasonable care; or (2) the owner’s failure to remedy
or give warning of a dangerous condition of which he
knows or in the exercise of reasonable care should
know.
159 N.H. 95, 99 (2009) (citing Restatement (Second) of Torts §§
341A, 343 (1965) (further citations omitted)).

A dangerous

condition is one that “involves an unreasonable risk of harm.”
Restatement (Second) of Torts § 342(a).

“A landowner does not

have a duty to warn or instruct of a dangerous condition on the
premises if it is open and obvious.”

McCarthy v. Weathervane

Seafoods, No. 10-cv-395-JD, 2011 WL 2174036, at *2 (D.N.H. June
1, 2011) (internal citation omitted); see also Allen v. Dover
Co-Recreational Softball League, 148 N.H. 407, 422 (2002).
In its answer to Porter’s complaint, the government
asserted a defense of comparative negligence.

Under New

Hampshire law, if the plaintiff is more at fault for his
injuries than the defendant, his claim is barred.
Stat. Ann. § 507:7-d.

N.H. Rev.

A comparative default defense “‘is

triggered by a plaintiff’s negligence,’ which ‘involves a breach
of the duty to care for oneself.’”

Boucher v. CVS/Pharmacy,

Inc., 822 F. Supp. 2d 98, 104 (D.N.H. 2011) (quoting Broughton
v. Proulx, 152 N.H. 549, 558 (2005)).

“To determine whether

. . . a duty of care has been breached, an examination of what

13

reasonable prudence would demand under similar circumstances is
required.”

White v. Asplundh Tree Expert Co., 151 N.H. 544, 547

(2005).
Rulings of Law
Based on the legal standards applicable to Porter’s claim
under the FTCA, the court concludes, in the first instance, that
the government was not negligent.

However, to the extent there

was any negligence on the government’s part, Porter’s own
negligence clearly exceeded that of the government.

A detailed

summary follows.
A.

The Government’s Negligence
Porter’s claim is based on the second theory of liability

identified in Rallis – the government’s failure to remedy or
give warning of a dangerous condition of which it knows or in
the exercise of reasonable care should know.3

3The

The court

first theory of liability in Rallis, the owner’s
failure to carry out his activities with reasonable care, does
not apply to this case, as Porter was not injured by Claremont
Post Office employees’ activities. See, e.g., Restatement
(Second) of Torts 341A cmt. d (discussing examples of liability
for failure to carry out activities with reasonable care, such
as where a plaintiff is injured by careless workers during the
course of their work, or where a defendant landowner injures a
plaintiff by driving too fast on his private road).
14

concludes that the government was not negligent under that
theory.
The evidence shows that the Claremont Post Office did not
have knowledge of any issue concerning the ramps moving down
together, rather than independently, prior to July 9, 2010.
Although the Claremont Post Office received three or four
complaints a year that the ramps were rough going up or down,
there were no complaints, prior to Porter’s injury, concerning
the failure of the ramps to move independently.4
Although Sunn reported an issue with the ramps to Kiernan
on July 8, 2010, the day before Porter’s accident, Sunn’s report
was that the ramps were not raising or lowering easily.

After

Sunn applied WD-40 to the ramps, he was able to raise and lower
them without difficulty, and Kiernan testified that she did not
receive any further reports concerning problems with the ramps
for the rest of that day.

And, the ramps worked as intended

during Porter’s first delivery at the Claremont Post Office on
July 9, 2010.
There is no evidence that prior to Porter’s accident anyone
at the Claremont Post Office knew, or should have known, that

4To

the extent that Goggin’s complaint concerned the ramps
moving together rather than independently, that complaint is not
credible for the reasons already explained.
15

the ramps were moving together rather than independently.
Without some evidence of the government’s actual or constructive
knowledge of the allegedly dangerous condition on its premises,
the government cannot be liable for having failed to remedy or
warn the drivers of the condition.
Moreover, even if the government knew or should have known
that the ramps might not move independently prior to Porter’s
accident, there is no evidence the ramps’ failure to move
independently represented a dangerous condition.

Testimony from

several witnesses establishes that: (i) Porter had never seen
anyone attempt to lower a loading dock ramp from anywhere other
than above and behind the ramps; (ii) Earl Bushor, the owner of
Mowers, had never seen or heard of one of his drivers ever
attempting to lower a loading dock ramp from the ground; and
(iii) no one at the Claremont Post Office had ever seen anyone
attempt to lower the ramps from the ground.

Further, there is

no evidence in the record that anyone could be hurt by the ramps
not moving independently unless the driver did what Porter did:
attempt to lower the ramps while standing on the ground.
In sum, the evidence establishes that the delivery drivers
lowered the ramps from behind while standing on the lift, and
that no Claremont Post Office employee ever contemplated that a
driver would attempt to lower the ramps from the ground while
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standing in front of them.

The fact that the ramps moved

together rather than independently on July 9, 2010, created a
risk only to Porter, who, by lowering the ramps from the ground,
did something not reasonably foreseeable.
Therefore, even if the government knew or should have known
that the ramps were moving together rather than independently
prior to Porter’s accident, the government could not have
foreseen that a delivery driver would attempt to lower the ramps
as Porter did on July 9, 2010.

Thus, the condition of the ramps

on July 9, 2010, was not a dangerous condition reasonably
foreseeable to the government.
Accordingly, the court concludes that the government did
not fail in its duty to protect Porter against known and
reasonably foreseeable dangers on the premises.

Therefore, the

government was not negligent.
B.

Porter’s Comparative Negligence
Even if the government were negligent for failing to ensure

that the ramps moved independently, Porter would not be entitled
to judgment because his negligence was greater than any
negligence on the part of the government.

As described above,

during his second delivery to the Claremont Post Office on July
9, 2010, Porter attempted to lower the right ramp, while

17

standing on the ground in front of the left ramp, and by
grabbing the right ramp and yanking it down.

Porter knew at the

time he grabbed the right ramp that neither ramp was locked in
place.
At that point, Porter had made thirty deliveries to the
Claremont Post Office and many deliveries to other postal
facilities on his routes.

During those deliveries, he (i) had

never attempted to lower a loading dock ramp in such a manner,
(ii) had never seen anyone else lower a loading dock ramp in
such a manner, and (iii) had never been told that lowering a
loading dock ramp in such a manner was appropriate.
Porter takes the position that he was not negligent for two
reasons.

Porter first argues that because no one ever told him

the exact proper procedure for lowering the ramps, he is not at
fault for having lowered the ramps as he did.

Porter next

argues that had the ramps been working properly, they would have
moved independently of one another and would not have fallen on
him.

Neither of those facts, however, absolves Porter of fault

for the accident.

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1.

Explicit Directions About Lowering the Ramps

Although no one at Mowers or the Claremont Post Office
explicitly told Porter not to operate the ramps while standing
in front of them, it is clear that Porter knew – from both his
training and his experience at Mowers - that the proper
procedure for lowering the ramps at a postal facility was to
stand above and behind them on the lift.

While Porter testified

that drivers at the various facilities lowered the ramps in
several ways – using the snap chains, kicking down the ramps, or
pushing the ramps down with a postal container – he also
testified that he had never seen another driver attempt to lower
a ramp from the front while standing on the ground.
With respect to Porter’s training at the Claremont Post
Office, Porter watched Sunn make a single delivery.

During that

delivery, Sunn lowered the ramps while standing on the lift
using the snap chains.
see, monkey do.”

Porter described his training as “monkey

Had Porter followed the procedure he witnessed

during his training, he would have lowered the ramps at the
Claremont Post Office while standing on the lift.
Notwithstanding his minimal training, it should have been
obvious to Porter that lowering a ramp from the ground would
place him in harm’s way.

Every other witness familiar with the

Claremont Post Office loading dock testified that no driver ever
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lowered the ramps from the ground.

The court finds that no

other driver lowered the ramps in that manner because the danger
to any driver of using such a procedure was open and obvious.
The danger was open and obvious for several reasons.
First, the ramps themselves are metal and each weighs between 80
and 100 pounds.

Thus, a reasonable driver would not place

himself underneath them as Porter did.

Second, Porter knew at

the time he grabbed the right ramp that neither ramp was locked
or otherwise secured in place.

Thus, Porter knew at the time he

put his hand between the ramps to pull one down that the other
was relying solely on gravity to keep it from falling forward
onto him.

Third, and finally, although there was just enough

room for Porter’s body to fit, there was very little space
between the dock and Porter’s truck.

Porter knew or should have

known that it was dangerous to place himself in the small space
between the dock and the back of his truck while lowering the
ramps.5
In sum, Porter is correct that neither Mowers nor the
Claremont Post Office explicitly told him that he should not
lower the ramps from the ground.

5Even

However, that omission did not

Porter himself admitted surprise that he did not
suffer a head injury as a result of his precarious location when
the ramp fell on him.
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obviate Porter’s duty to use common sense and avoid obvious
dangers.6
2.

Ramps not Moving Independently

Porter asserts that he was not negligent because the ramps
moved together rather than independently.

It is true that the

ramps appear to have moved together rather than independently at
the time of Porter’s accident.

That fact, however, does not

excuse Porter’s decisions to stand below and in front of two 80
to 100 pound ramps, which he knew were not secured in place, and
to pull one of them down toward him.
lower the ramps from the ground.

Nothing required Porter to

Indeed, Porter’s only

justification for doing so was that the ramps were “right
there.”7
In sum, Porter did not exercise reasonable care when he
decided to lower the ramps from the front while standing on the

6Necessarily,

Sunn and the other Mowers drivers who trained
Porter would not point out every improper procedure for making a
delivery. Under Porter’s theory, however, he would be absolved
of fault for doing anything during a delivery unless he was
explicitly warned not to do so.
7Arguably,

lowering the ramps one at a time from the ground
would have taken Porter more time than simply returning to the
lift and knocking both ramps over at the same time with the
postal container, as he had originally intended. Moreover,
Porter’s method for lowering the ramps did not eliminate his
need to go back up on the dock to move the postal container onto
his truck.
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ground.

Moreover, even were the court to find negligence on the

government’s part (for failing to “fix” the ramps or to warn
Porter), the court would find that Porter’s negligence in
failing to act with reasonable care exceeded any negligence on
the government’s part.
Conclusion
For the foregoing reasons, the court finds and rules in
favor of the defendant.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
December 22, 2015
cc:

Robert J. Rabuck, Esq.
Christine Rousseau, Esq.

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