Harper v. United States Postal Service et al

Filing 65

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT UNITED STATES OF AMERICA'S 51 MOTION FOR SUMMARY JUDGMENT. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 5/3/19. (lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DEBBIE HARPER,
Plaintiff,
v.

Civil Action No. 5:17CV12
(STAMP)

UNITED STATES POSTAL SERVICE
and UNITED STATES OF AMERICA,
Defendants.

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT UNITED STATES OF AMERICA’S
MOTION FOR SUMMARY JUDGMENT
I.

Background

This is a Federal Tort Claims Act (“FTCA”) case arising out of
a fall at the United States Post Office in Chester, West Virginia
(“the Post Office”).

The plaintiff, Debbie Harper (“Harper”),

filed this action under the FTCA against the United States of
America and the United States Postal Service (“Postal Service”).
ECF No. 1.

Plaintiff and defendant Hiler Buffalo, LLC, by their

respective counsel, filed a joint motion to consolidate Harper v.
Hiler Buffalo, LLC, Civil Action No. 5:17CV156, with the abovestyled action, Harper v. United States Postal Service, et al.,
Civil Action No. 5:17CV12, pursuant to Rule 42 of the Federal Rules
of Civil Procedure.

This Court entered an order granting the

parties’ joint motion to consolidate.

ECF No. 20.

At this time, following this Court’s order granting the Postal
Service’s motion to dismiss (ECF No. 7) and order of dismissal
following the parties’ compromise and settlement in the related

civil action against defendant Hiler Buffalo, LLC (“Hiler Buffalo”)
(ECF No. 18 in Civil Action 5:17CV156), only the plaintiff’s claims
against defendant United States of America remain.
Now pending before the Court is defendant United States of
America’s motion for summary judgment pursuant to Federal Rule of
Civil Procedure Rule 56 (ECF No. 51).

Plaintiff filed a response

to defendant’s motion for summary judgment (ECF No. 63) and
defendant filed its reply to plaintiff’s response (ECF No. 64).
Defendant’s motion for summary judgment is now fully briefed and
ripe for decision.
For the reasons that follow, defendant United States of
America’s motion for summary judgment (ECF No. 51) is granted.
II.

Facts

Plaintiff’s injury occurred inside the United States Post
Office in Chester, West Virginia, which was owned and operated by
Hiler Buffalo and leased to defendant United States of America to
conduct business of providing postal services.

Plaintiff alleges

she was walking up the interior steps when she fell and suffered
physical injury as a result of crashing through a glass wall.
No. 1 at 2.

ECF

The glass wall was located at the top of the stairs

adjacent to the door at the entrance of the Post Office lobby.
No. 52-1 at 45.

ECF

Harper cannot explain how she fell or recall the

details of the incident, but alleges in the complaint that “she was
flung through the glass wall due to the unsafe condition of the
interior steps handrail.”

ECF No. 52 at 2; ECF No. 1 at 2.

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III.

Contentions of the Parties

Defendant United States of America filed a motion for summary
judgment (ECF No. 51) and memorandum in support (ECF No. 52) and
asserts that plaintiff offers nothing but her own unsupported
speculation to explain how she was injured or how the actions or
omissions of any federal government actor caused her injury.
No. 52 at 2-3.

ECF

Further, defendant argues that plaintiff has not

and cannot establish that the United States of America had any duty
to repair or replace the handrail or the glass panel at the Post
Office.

Id. at 4.

has

identified

not

Therefore, the defendant contends, plaintiff
and

cannot

establish

any

genuine

dispute, except by relying on unfounded conjecture.

factual

Id. at 6.

Ultimately, defendant asserts that plaintiff has not and cannot
establish

various

essential

elements

necessary

to

support

a

negligence claim against the United States of America, particularly
under the narrowly tailored FTCA exception to the general rule that
the United States cannot be sued and, therefore, any disputed facts
are fundamentally immaterial.

Id. at 5.

Accordingly, defendant

United States requests that this Court grant summary judgment in
its favor.
Plaintiff filed a response in opposition to defendant’s motion
(ECF No. 63).

In applying the factors used to determine whether a

defendant in a premises liability case met his or her burden of
reasonable care under the circumstances to all non-trespassing
entrants, as cited in Dillon v. United States, No. 5:12-CV-09314,

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2015 WL 2145116 (S.D. W. Va. May 7, 2015) (citing Syl. pt. 6,
Mallet v. Pickens, 522 S.E.2d 436 (W. Va. 1999)), plaintiff
contends that defendant United States of America, breached its duty
of reasonable care under the circumstances.

Id. at 1.

Plaintiff

contends that this Court should deny defendant’s motion for summary
judgment and “permit the trier of fact to determine at trial the
applicable standard of care and whether the defendant USA has met
its burden of reasonable care to business invitees such as the
plaintiff.”

ECF No. 63 at 6.

Defendant United States filed a reply to plaintiff’s response
in opposition to its motion for summary judgment (ECF No. 64) and
asserts

that

plaintiff

cannot

establish

essential

elements

necessary to support a viable negligence claim. Defendant contends
that plaintiff has “abandoned her original theory that a faulty
handrail flung her up a stairway and propelled her into a glass
panel” and asserts that plaintiff’s “newly formulated theory that
the United States of America had an independent duty to replace the
glass panel with safety glass is not justiciable pursuant to the
FTCA.”

ECF No. 64 at 1, 3.

Further, defendant contends that

“Harper never administratively alleged that the United States of
America had any independent obligation to replace the glass panel
with safety glass,” and “[b]ecause Harper did not properly present
this allegation in the required administrative claim, this court
lacks subject matter jurisdiction to address this theory.”
at 4.

Id.

Moreover, defendant asserts that “[e]ven if Harper had

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properly presented her allegation in the required administrative
claim, the FTCA discretionary function exception bars Harper’s
claim that the United States had a duty to replace the glass panel
with safety glass.”

Id. at 5.

Lastly, defendant maintains that

Harper cannot support her alleged negligence claim against the
United States and renews its request for summary judgment in its
favor.
IV.

Applicable Law

Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c).

The party seeking summary judgment bears

the initial burden of showing the absence of any genuine issues of
material fact.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

“The burden then shifts to the nonmoving party to come

forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for

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summary judgment may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.”

Anderson, 477 U.S. at

256. “The inquiry performed is the threshold inquiry of determining
whether there is the need for a trial — whether, in other words,
there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in
favor of either party.”

Id. at 250; see also Charbonnages de

France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (“Summary
judgment ‘should be granted only in those cases where it is
perfectly clear that no issue of fact is involved and inquiry into
the facts is not desirable to clarify the application of the law.’”
(citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th
Cir. 1950))).
In Celotex, the Supreme Court stated that “the plain language
of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322.

In reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).

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V.
Following
America’s

its

fully

review

briefed

Discussion
of

the

motion

defendant

for

summary

United

States

judgment

and

of
the

memoranda and exhibits submitted by the parties, and for the
reasons set forth below, this Court finds that plaintiff cannot
prevail on her claim against the United States because she did not
properly pursue her allegation regarding the glass panel through an
administrative claim and, further, cannot establish essential
elements necessary to support her negligence claim against the
United States.
As an initial matter, this Court notes that plaintiff has
apparently abandoned her theory regarding the faulty handrail and,
instead,

alleges

that

the

United

States

had

an

independent

obligation to replace the glass panel with safety glass.

ECF

No. 63.
First, this Court finds that although Harper did file an
administrative claim to the United States Postal Service, Harper
never alleged that the United States of America had an independent
obligation or duty to replace the glass panel with safety glass.
See ECF No. 64-1 at 4.

Instead, consistent with her complaint in

this case, Harper alleged that a handrail banister flung her up a
stairway and propelled her into the glass panel.

Id.

Plaintiff

never presented her theory that the United States of America had a
duty to replace the glass panel with safety glass to the United
States

Postal

Service

for

administrative

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adjudication.

Id.

Therefore, pursuant to the FTCA and jurisdictional procedural
prerequisites, this Court lacks subject matter jurisdiction to
address Harper’s claim regarding the glass panel as it was not
administratively presented to the relevant federal agency.

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U.S.C. § 2401(b); 28 U.S.C. § 2675(a); see also Henderson v. United
States, 785 F.2d 121, 123 (4th Cir. 1986).
However, even if plaintiff has not abandoned her original
theory regarding the faulty handrail as alleged in her complaint,
this Court finds that plaintiff’s claim still fails as she cannot
establish the essential elements necessary to establish a viable
negligence claim against the defendant United States of America.
Upon

review,

this

Court

can

identify

no

federal

law,

applicable industry standard, or Postal Service policy or protocol
which would affirmatively require the defendant United States,
through the Post Office, to retroactively replace the existing
glass at issue with safety glass.

Additionally, this Court notes

that defendant United States leases space in the building to
operate the Post Office from Hiler Buffalo as the owner of the
building.

Thus, this Court finds that the defendant United States

owed no duty to plaintiff to replace the existing glass which
caused plaintiff’s injury with safety glass.
Further, this Court notes that the moving party has the burden
of establishing that there is no genuine issue as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

This

burden can be met by showing that the nonmoving party has failed to

8

prove an essential element of the nonmoving party’s case for which
the nonmoving party will bear the burden of proof at trial.
at 322.

Id.

If the moving party meets this burden, according to the

United States Supreme Court, “there can be ‘no genuine issue as to
any material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.”

Id. at 323.

Here, Harper cannot explain how she fell or discernibly
articulate how any federal government actor purportedly harmed her
and cannot establish essential elements necessary to support a
negligence claim against the United States of America.

Harper’s

own architectural expert reviewed deposition testimony from United
States

Postal

Service

employee

Sandra

Temple

(“Temple”)

and

discredited Harper’s description of how she fell and concluded that
it was more likely that Temple was correct and that Harper had
already walked through the door into the customer service lobby
where she staggered, tripped over her own feet, and fell backward
into the glass panel.

ECF No. 52 at 3.

Further, Harper concedes

that she has no idea how she fell and has no evidence that
defendant knew that anything was wrong with the handrail.

Id.

Accordingly, this Court finds that plaintiff cannot establish
essential elements necessary to support a negligence claim against
the defendant.

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VI.
For

the

reasons

set

Conclusion
forth

above,

the

United

States

of

America’s motion for summary judgment (ECF No. 51) is GRANTED.
It is further ORDERED that this civil action be DISMISSED and
STRICKEN from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

May 3, 2019

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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