Opinion
CIVIL ACTION NO. 03-627, SECTION "N"
February 27, 2004
ORDER AND REASONS
Before the Court is a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, filed by United States. For the reasons that follow, the motion is GRANTED.
I. BACKGROUND
Plaintiff, Shirley Centanni, brings this action under the Federal Tort Claims Act ("FTCA"), seeking damages for injuries sustained when she fell outside the Post Office located on 4th Street in Gretna, Louisiana. On March 19, 2002, Ms. Centanni parked her vehicle in a rear parking lot and walked along the sidewalk towards 4th Street. As she neared 4th Street, Ms. Centanni encountered a woman in her path, depositing mail in the collection boxes located on the sidewalk. Because the woman was blocking her path, Ms. Centanni decided to leave the sidewalk and take a "short-cut" between a live oak tree and the building. For years, the Postal Service has attempted to discourage such short-cuts with "keep off grass" signs, and has periodically erected posts and a chain fence to close off the passage by the live oak tree. However, it has become commonplace for customers to step over and around the chains, and some have gone so far as to break the chains and damage the posts. In attempting to traverse the area, Ms. Centanni allegedly caught her right foot on one of the chains that angled down from a cement post and fell on the tree roots.
On June 18, 2002, Ms. Centanni filed an administrative claim with the Postal Service, which was denied for a lack of negligence on September 13, 2002. On February 28, 2003, Plaintiff filed suit the FTCA, alleging that the United States Postal Service had been negligent in that it had failed to keep and maintain a safe premises; failed to observe all relevant regulations and laws for the upkeep and maintenance of public facilities; and failed to inspect, correct, and/or warn about a dangerous and defective condition.
II. LAW AND ANALYSIS
A. Summary Judgment Standard:
The government presents its motion as one to dismiss pursuant to Rule 12(b)(1) or, alternatively, for summary judgment pursuant to Rule 56. Considering that both sides have submitted materials outside the pleadings, the motion will "be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(b).
"Summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Kee v. City of Rowlett, Texas, 247 F.3d 206, 210 (5th Cir.), (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R, Civ. P. 56(c))), cert. denied, 122 S.Ct. 210 (2001). "The moving party bears the burden of showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 210. If the moving party meets this burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party" Id. (internal quotations omitted). `The substantive law determines which facts are material." Id. at 211.
B. Federal Tort Claims Act (FTCA);
The United States is immune from suit, except to the extent it has waived its sovereign immunity. FDIC v. Meyers, 510 U.S. 471, 477 (1994). The FTCA is a limited waiver of this sovereign immunity, allowing suits "for damages `caused by the negligent or wrongful act or omission of any employee of the Government. . . .'" Aretz v. United States, 604 F.2d 417, 426 (5th Cir. 1979) (quoting 28 U.S.C. § 1346(b)). For the United States to be subject to suit under the FTCA, the injury must have been caused "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). Here, the alleged acts and omissions occurred in Louisiana. Thus, the question for the Court is whether, under the circumstances presented here, a private person would be liable under Louisiana's law of negligence.
The factual basis for this action against the United States is the presence of a broken chain fence on the path of a "short cut" to the entrance of the Gretna Post Office. The plaintiff has alleged that her injuries were caused by the negligence of the Post Office in the failure to maintain the area and to warn about the alleged dangerous condition. However, the Complaint does not allege that specific individuals were negligent in any specific manner in relation to the broken chain. Thus, it appears that the substance of Ms. Centanni's claim is one of premises liability, which fails to state a claim under the FTCA. See Perkins v. United States, 1999 WL 148442, p. 2 (E.D. La.) (Sear, J.) ("the FTCA does not permit suits for general premises liability to the extent that such theories resemble strict liability as opposed to a `more focused approach that requires the court to [consider] . . . the actor whose negligence might be imputed to the government under state law.'"), quoting Berkman v. United States, 957 F.2d 108, 113 (4th Cir. 1992).
Even assuming the allegations, on their face, are sufficient to establish subject matter jurisdiction and to state a claim for negligence, the United States advances summary judgment evidence tending to show that there was no negligence by the defendant in connection with the broken chain fence.
C. Negligence Under Louisiana Law:
To prevail in a negligence action under Louisiana law, a plaintiff must prove that: "1) the conduct in question was the cause-in-fact of the resulting harm; 2) defendant owed a duty of care to plaintiff; 3) the requisite duty was breached by the defendant; 4) the risk of harm was within the scope of protection afforded by the duty breached." Peterson v. Gibraltar Savings Loan, 733 So.2d 1198, 1203-04 (La. 1999).
Where, as here, the alleged negligence concerns an alleged defect in a premises, the determination of whether the custodian owed a duty of care turns upon whether the condition was "unreasonably dangerous." Williams v. Leonard Chabert Medical Center, 744 So.2d 206, 209 (La.App. 1st Cir. 1999), writ denied, 754 So.2d 974 (La. 2000). See also Rigdon v. United States, 2003 WL 1618569 (E.D. La.). The "absence of an unreasonably dangerous condition . . . implies the absence of a duty." Williams, 744 So.2d at 209. The mere "fact that a pedestrian falls does not elevate the condition of the walkway to an unreasonably dangerous defect." Id. at 211. Rather, the determination of "whether a thing presents an unreasonable risk of harm involves numerous considerations," which "cannot be applied mechanically." Id. "In addition to balancing the likelihood and magnitude of harm against the utility of the thing, the trier of fact should consider a broad range of social, economic, and moral factors including the cost to defendant of avoiding the risk and the social utility of plaintiffs conduct at the time of the accident." Id. `The lack of prior accidents is an important factor to be considered in evaluating the risk of harm." Id. at 210. Another factor is the "degree to which a danger may be observed by a potential victim." Id. at 211.
Additionally, "[i]n a trip and fall case, the duty is not solely with the landowner. A pedestrian has a duty to see that which should be seen and is bound to observe his course to see if his pathway is clear." Id., citing Carr v. City of Covington, 477 So.2d 1202, 1204 (La.App. 1 Cir. 1985), writ denied, 481 So.2d 631 (La. 1986). "The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous." Id., citing Wallace v. Slidell Memorial Hospital, 509 So.2d 69, 72 (La.App. 1 Cir. 1987). "A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as it was to the landowner." Id., citing Barnes v. New Hampshire Insurance Company, 573 So.2d 628, 630 (La.App. 2 Cir. 1991).
In the instant case, photographs of the area where the plaintiff fell were attached as exhibits to the defendant's Motion and to the plaintiffs Opposition. It is apparent from the photographs that there is a post, from which two chains angle down to the ground, and that the area is covered with tree roots. Moreover, what is obvious in the photographs was also obvious to Ms. Centanni on the day of the accident.
Here, it is undisputed that the accident in question occurred around 10:15 a.m. in broad daylight. Plaintiff does not dispute that she was familiar with the existence of the chains and the tree roots, having walked through the area on at least two prior occasions. In fact, in her deposition, Ms. Centanni admits she was aware that the chains had been down for several months. Plaintiff does not dispute that she was carrying a package at the time of her fall, nor does Plaintiff dispute that her only explanation for taking the "short cut" was that she was in a hurry. It is further undisputed that prior to Plaintiff's fall, there were no reports of anyone falling in the area, and the Postal Service had never received a complaint from the public with regard to the chains, posts or tree roots, or how the area was maintained. Had Plaintiff waited for the woman standing in her path to move, she could have continued safely along the sidewalk. In view of all of these factors, no reasonable fact-finder could find from the record evidence that the chain (or the tree roots, for that matter) constituted an unreasonably dangerous condition. Thus, the Post Master had no duty to remedy the situation or to provide any further warning.
III. CONCLUSION
Accordingly, IT IS ORDERED that the Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, filed by United States, is GRANTED.