Starry v. United States of America

Filing 21

ORDER DENYING MSJ 12 & directing parties to meet & confer in consult w/ courtroom deputy to develop appropriate schedule for further proceedings & submit jt prop pretrial & trial schedule to ct by 6/26/17 specifically id'ng anticipated length of trial or if unable to agree to submit individual proposed schedules. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/12/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES STARRY, JR.,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant

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CIVIL ACTION NO. 1:16-CV-532
(Chief Judge Conner)

ORDER
AND NOW, this 12th day of June, 2017, upon consideration of the motion
(Doc. 12) for summary judgment filed by defendant United States of America, and
the parties’ respective briefs in support of and opposition to said motion, (Docs. 14,
17, 18), wherein the parties dispute whether plaintiff James Starry, Jr. (“Starry”)
has produced sufficient evidence to proceed to trial on his negligence claim
pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, concerning his slip and
fall at a United States Post Office in Lemoyne, Pennsylvania on June 4, 2015, (Doc.
13 ¶¶ 1-3; Doc. 16 ¶¶ 1-3), and the court observing that, through summary
adjudication, we may dispose of those claims that do not present a “genuine dispute
as to any material fact,”1 FED. R. CIV. P. 56(a), and that the burden of proof is on the
non-moving party to come forth with “affirmative evidence, beyond the allegations

1

Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT 56.1. A
party opposing a motion for summary judgment must file a separate statement of
material facts, responding to the numbered paragraphs set forth in the moving
party’s statement and identifying genuine issues to be tried. Id. Starry identifies
material disputes of fact in his Rule 56.1 statement. (Doc. 16 ¶¶ 2-5).

of the pleadings,” in support of its right to relief, Pappas v. City of Lebanon, 331 F.
Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986), and further observing: first, that the court must apply the law of the
place where a contested act or omission occurred when considering a cause of
action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b); second, that under
Pennsylvania law, “[t]he mere occurrence of an accident does not establish
negligent conduct,” Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998); and third, that
“[i]n any case sounding in negligence, a plaintiff must demonstrate: (1) a duty of
care; (2) the breach of the duty; (3) a causal connection between the conduct and the
resulting injury; and (4) actual loss or damage resulting to the plaintiff,” Farabaugh
v. Pa. Turnpike Comm’n, 911 A.2d 1264, 1272-73 (Pa. 2006), and it appearing that the
parties dispute the second element, concerning whether the government, as the
landowner sub judice, breached its duty of care to Starry, the invitee on the
premises, by either having a hand in the creation of the harmful condition that
caused Starry to fall, or having actual or constructive notice of the condition, (Doc.
14 at 5-8; Doc. 17 at 8-13); see Farabaugh, 911 A.2d at 1272 n.10; Estate of Swift v.
Ne. Hosp. of Phila., 690 A.2d 719, 723 (Pa. Super. Ct. 1997), and that the government
claims it did not create the hazardous condition of water on the floor of the
entranceway and Starry cannot prove that Post Office staff knew or should have
known about the water, (Doc. 14 at 6-8), and Starry rejoins that the government
created the hazardous condition by not placing floor mats at the entranceway or
had actual notice of the hazard because the Postmaster of the Lemoyne Post Office,
Christopher Hans, regularly put signs warning of water accumulation in the
2

entranceway when it rained, (Doc. 17 at 8-13), and the court noting that a trier of
fact may find that a landowner had actual notice of a condition if it is one that the
owner knows frequently occurred, see Myers v. Penn Traffic Co., 606 A.2d 926, 929
(Pa. Super. Ct. 1992) (citing Moultrey v. Great A & P Tea Co., 422 A.2d 593, 596 (Pa.
Super. Ct. 1980)), and the court finding that Starry has produced sufficient evidence
to meet his burden under Rule 56, to wit, that: (1) it rained the day of Starry’s fall,
(see Doc. 17-2); (2) the government knew that the entranceway accumulated water
when it rained and had a practice of placing warning signs at the entranceway
when it rained, (see Doc. 17 at 8-9 (citing Doc. 17-3, Hans Dep. 32:21-33:11, Aug. 19,
2016)); and (3) the government did not have a mat or notice signs in the
entranceway at the time of the accident, (id. at 8-9 (citing Hans Dep. 9:5-25, 10:111:12, 11:16-12:1, 31:16-32:1)), and the court further finding that a reasonable trier of
fact could infer that the government had adequate notice of this potentially
hazardous condition,2 and the court concluding that there are genuine and material
disputes of fact that must be resolved at trial, it is hereby ORDERED that:

2

The government cites several cases in which courts in the Third Circuit
granted summary judgment in negligence suits concerning a slip and fall. See
Howard v. United States, 488 F. App’x 576 (3d Cir. 2012); Fiore v. Holt, 435 F. App’x
63 (3d Cir. 2011); Tameru v. W-Franklin, L.P., 350 F. App’x 737 (3d Cir. 2009). The
court notes that these unpublished opinions are not binding on the court, and the
court is unpersuaded by their ratio decidendi. None of the proffered cases involve
evidence of a pervasive, hazardous condition of which a landowner was aware.
3

1.

The motion (Doc. 12) for summary judgment is DENIED.

2.

The parties are directed to meet and confer, in consultation with the
undersigned’s courtroom deputy, with the goal of developing an
appropriate schedule for further proceedings. On or before Monday,
June 26, 2017, the parties shall submit to the court a joint proposed
pretrial and trial schedule, specifically identifying the anticipated
length of trial, or, in the event the parties are unable to agree, shall
submit individual proposed schedules for the court’s consideration.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania