Opinion
Case No. 4:09-cv-036.
October 5, 2011
Summary : The Plaintiff sued the Defendant for negligence pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et. seq. The Court found that the Defendant operated its premises in a negligent manner which proximately caused the Plaintiff's injury. The Court further found that the Plaintiff was entitled to damages of $186,936.82.
ORDER
I. BACKGROUND
This is a personal injury action for injuries sustained by the plaintiff, Jacki Harasym, at the United States Post Office building in Minot, North Dakota, on April 21, 2008. On that date, Harasym was entering the main doors of the Post Office on a windy day when the door that she was walking through struck her right foot. Harasym alleges that she sustained a contusion injury to the soft tissues and bone of her right foot which then mushroomed into a more serious, chronic condition known as Reflex Sympathetic Dystrophy (RSD). Harasym seeks damages pursuant to the Federal Tort Claims Act for negligence by the United States Postal Service and its employees in the management and maintenance of the public entryway. See 28 U.S.C. § 2671 et. seq.
Every claimant must present an administrative claim to the appropriate federal agency before filing suit. 28 U.S.C. § 2675(a).
On June 27, 2008, Harasym submitted an administrative claim in the amount of $850,000. See Defendant's Exhibit No. 100. On December 15, 2008, the administrative claim was denied and, after reconsideration, the claim was again denied by a letter dated June 25, 2009. Defendant's Exhibit No. 101. This civil action was commenced by the filing of a complaint in federal court on July 10, 2009. See Docket No. 1.
II. FINDINGS OF FACT
The plaintiff, Jacki Harasym, is 46 years old and was born on May 7, 1965. She graduated from Minot High School in 1983 and went on to obtain a degree in elementary education from Minot State University in 1988. Thereafter, she pursued and obtained a master's degree in elementary education. Harasym taught grades K-8 in the Minot Public School District from 1988 — 2008. In that capacity she worked as a Title I teacher which required her to spend most of the day on her feet while working with students in the classroom. Harasym had an annual contract with the Minot Public School District. In addition, she worked as a part-time clothes folder at Scheels Sporting Goods store in Minot and as a framer for several local galleries.
On April 21, 2008, Jacki Harasym and her husband, Rick Harasym, went to the Post Office in Minot to mail an envelope. The Harasyms arrived at the Post Office between 4:30-5:00 p.m. Jacki Harasym described the day as being sunny and very windy.
Graph
Harasym said she and her husband entered the Post Office in the main entrance which is a double-door entry that has two glass doors which swing out to the north over a sidewalk. The entrance to the building and the double doors are depicted in several photographs introduced into evidence at trial. See Plaintiff's Exhibit Nos. 1, 2, and 66. The doors are controlled, in part, by a hydraulic door opener/closer installed at the top of each door, which connect the doors to the building. The purpose of the door closer is to dampen or delay the movement of the door and to ensure the door fully closes.
As Jacki Harasym approached the Post Office on April 28, 2008, her husband opened the right door (west door) because customers were coming out of the building. Harasym stepped to the left to allow persons to exit the building. It is undisputed that an unidentified gentleman was holding the left door (east door) open at the same time for persons entering and exiting the building. Harasym then entered the building through the double door with her left foot stepping onto the left side entrance. She was prepared to lift her right foot into the building when it was suddenly struck by the door on the left side. Harasym immediately fell into the entryway of the building and was in pain. Rick Harasym attempted to assist her. He assisted her to the car and then went back into the Post Office building to get help. A woman known as "Cindy" (Cynthia Weigel) came out to see Jacki Harasym. Weigel looked at Jacki Harasym's foot and allegedly told her to go to the emergency room. Weigel also took photographs of Jacki Harasym's foot and the entry doors to the building. See Defendant's Exhibit No's. 104-106.
Jacki Harasym and her husband traveled a short distance to the Trinity Medical Center Emergency Room in Minot. Upon arriving at the emergency room, x-rays were taken of Jacki Harasym's foot; she was provided with crutches and pain medications (Vicodin); she was told to elevate the foot and avoid any weight-bearing; and was told to follow-up with her regular treating physician in 2-3 days. Harasym said that evening her right foot was swollen and very painful. See Plaintiff's Exhibit No. 16.
Jacki Harasym went to see her physician (Dr. Todd Fife) several days later but she was unable to work during that time. During her first visit with Dr. Fife, her foot was placed in a "cam" or a hard-shelled, protective boot which extended from her foot to her knee. Harasym later returned to work as a teacher but was required to sit and have the foot elevated throughout the day. Harasym did have several follow-up appointments with Dr. Fife who ultimately referred her to a local podiatrist, Dr. Tyson Williams and a pain specialist, Dr. Manuel Colon. See Plaintiff's Exhibit No's. 21-22.
The following is a summary of the accident and Harasym's physical condition as reflected in a diary she submitted with her administrative claim:
Foot Injury
April 21, 2008:
Was entering the Minot Post Office when my foot was slammed in the left door. The door's slowing mechanism was not working and the wind caught the door slamming my foot between the frame and door. The impact knocked me to the floor. Upon inspection of my foot we saw a lump coming from the arch area of my foot, arising about an inch high. I could not walk. My husband helped me to the car and returned to the post office where a supervisor named Cindy was notified. Cindy came to the car, took a picture of my foot and told us to go to the emergency room. She said she would join us there for more information. In the ER my foot was looked at, X-rayed, and wrapped and I was given crutches. I was sent home with pain pills and told to see a Dr in 3 days. Received message from Cindy stating she had the information needed to submit claim to the Post Office.
April 22, 2008 Remained in bed in severe pain. Unable to work. Kept foot elevated. Tried to apply ice but just the mere touch sent searing pain through my foot. Unable to place under a blanket or sheet. Phone post office and was informed the door would e fixed. ER nurse (Patti) states that they have treated (with stitches) cuts to the back of the heal from that door before.
April 23, 2008 Remained in bed in severe pain. Foot elevated. Unable to move foot. Very swollen. Will see Dr. Fife next day.
April 24, 2008 Appointment with Dr. Fife. He ordered a foot boot for foot, prescribed vicaden for pain and said to stay off foot. Pain almost unbearable. Foot very swollen. Contend with a cramping sensation in the arch area. foot spasms frequently sending pain up my leg.
April 30, 2008 Remain in severe pain. Foot is now very discolored, swollen and painful. Unable to walk. Of ten nauseous with the pain. MRI ordered for May 1. Rick in Post Office. Door still broken. Rick is told it is being fixed.
May 5, 2008 Return to Dr. Fife. Foot still in cam walker. Still unable to walk of foot and still in sever pain. Foot still remains swollen. Unable to bear weight. Dr. Fife informs me that I have a severe condition. He labeled it a disability and stated it was a severe trauma to the foot. Follow-up visit scheduled for May 19.
My foot is still very painful. I contend with nights of waking up with arch cramps and spasms. My husband holds me as I cry and refrain from screaming.
May 8, 2008. My Father Gary Gemar went into Post Office. Door still broken and slams shut. He inquired at windowed where he was informed door was to be fixed "tomorrow."
May 11, 2008 Rick Harasym (my husband) enters Post Office. Door still slams shut . . .
Foot still very swollen . . . very painful. A constant ache with cramp spasms in the arch. Pain is severe. Still on vicaden.
May 19, 2008 Office visit with Dr. Fife. Foot still very painful. Swelling down some. Toes tingle most days and are foot is numb on the undersides. Still unable to walk. Still on crutches. Unable to perform most household duties. Given Referral to a foot specialist. Also, given a perception for muscle relaxants to take at bedtime to help me sleep as the cramps and spasms wake me up. Appointment scheduled for May 28 with Dr. William's. Very painful cramping and spasms remain a way of life for me. Unable to care for my family . . . perform household duties . . . exercise, play racquetball or softball. Unable to perform even simple tasks like carry a cup of coffee to the table.
Daughter is graduating from High School. Need to hire help for this celebration as am unable to do most things.
May 28, 2008 Still unable to walk on foot. Foot cramps and spasms. Very painful. Dr. William's states physical therapy for 4 weeks and repeat appointment with him on July 2. Told to remain off foot. Given anti-inflammatory medication as MRI indicates severe damage. Inflammation to tendons. Bone contusion. Ligament tear and nerve compression.
June 2, 2008 First physical therapy appointment. They explained the injury as being the bone, tendons and ligaments that control the whole foot. Showed me how to start moving it. Decided against ultrasound heat therapy as still too swollen and painful. Will do therapy for a month 2 days a week. Goal is to start putting some pressure on foot. To remain in boot and on crutches but with crutches, apply pressure.
Evening was terrible. Very sore and painful. On pain meds again. Spasmed most the night.
June 3. Rainy and cool today. Foot achy to the point of staying on my bed. Finally took pain meds to leave the house at 7:15 PM. Some relief but still achy to the point of making me nauseated.
Activities I am unable to perform that I used to: perform simple household duties . . . carry laundry, a bag of groceries, vacuum, clean, carry my book bag . . .
Unable to Play (all things I did before)
racquetball golf
softball
work out on treadmill and elliptical
run
hike
ride my bike
When I was injured I was training for running events this summer. Was up to an hour of workouts per day. Unable to do any of this and don't know that I will ever have the strength in my arch to ever run again.
June 9, 2008
Informed by hospital that my account has been placed in liability. Insurance will request a refund of the amounts they have paid. Hospital will expect payment when I receive money from Post Office. Point of contact at hospital: Kathy Beeter in account services.
Foot still painful. Some additional movement back in ankle area. Still performing exercises presented to me by physical therapist. More spasms and cramping sensation with these exercises. Trying to balance the exercises with caution as a full cramp sends me to my knees with pain. Still on crutches and in cam boot. Today marks 7 weeks after injury. Still unable to walk on foot. Still need help and care at home.
June 10.
Pysio painful today. They did more stretching with my foot but foot still painful to the touch. Pretty much 30 minutes of torture, though I know they are doing what they need to do. Told to go home and rest after.
June 11. Foot very sore and painful from Pysio. Still moving it like told. Still can not walk on foot. Foot still twisted with most weight on the outside of my foot. The goal is to get the foot back flat so can start walking in my boot.
June 12. Pysio . . . Foot very stiff. Some regression but the weather is cold and rainy. We were not able to do what was planned to more stretching. Still need to stay off foot in cam walker.
Hired help today. Can not do most things around the house.
June 13, Questionnaire came from Blue Cross Blue Shield. Once sent in they will request refund of moneys paid.
June 15. Rainy and cold today. Had activity outside I was to be at. Made it only a few minutes as this kind of weather is torturous. By evening foot so achy and painful that I was crying. Pain meds did not help. By bedtime, nauseated from constant ache.
June 16. Today marks 8 weeks. Still can't walk. Pressure on foot still painful but getting better. Concerned about the pain remaining. Physio today was painful. Slight pressure applied to the arch area. Still unable to place foot flat on floor and unable to walk. Evening very painful. Foot swollen. Took Vicaden for pain.
June 17. Foot very swollen and painful again. Tried a combination of Tylenol and Acediminiphin. Didn't help so on Vicden for pain.
June 18. Foot still remain very swollen from Physio. Very painful. On Vicden.
June 19. Foot painful but swelling down. Painful but tolerable. Vicaden once.
June 20. Physio appointment. We discussed the result of applying slight pressure to arch. Informed that I would be in Physio in July also.
Plan to seek referral to Mayo Clinic in Minnesota.
Future:
Who can tell . . .
Surgery for scar tissue or tendonidis could be well over $60,000. Once Blue Cross pulls out they will never cover this foot again. It will be my responsibility for the rest of my life. If I live to be 85 that is 42 years. Will I need 3 surgeries, or 4 . . . in my lifetime? At this point I don't even know that I will ever walk normally again.
Total amount sought for current and future expenses: $850,000
The diary incorrectly noted the date of the accident as April 21, 2007. The plaintiff testified that all diary entries should have been 2008 entries. The Court has changed the entries to reflect the correct dates.
Plaintiff's Exhibit No. 59, Attachment A, Claim for Damage, Injury, or Death (errors in original).
When Jacki Harasym returned to school as a teacher in the fall of 2008, she remained on crutches and continued to use crutches for the next six (6) months. During her recovery following the accident, Harasym tried a variety of pain medications, steroid injections, Lidoderm patches, and gave consideration to the installation of a spinal stimulator. At the present time, Harasym uses both pain medications and Lidoderm patches to control the pain and discomfort. Harasym has continued to follow-up with her treating specialists every six (6) months.
With respect to the condition of her right foot, Harasym continues to experience pain on a daily basis. She described her right foot as being persistently cold, tingly, aching, throbbing, and discolored at times. She is able to control the pain with her current pain medication regimen. Harasym has tried a variety of other pain medications but many of those medications left her in a "zombie-like condition" so they were discontinued. The medical expenses that have been incurred to date for the care and treatment of Harasym's right foot are as follows:
MEDICAL EXPENSE SUMMARY JACKI HARASYM D.O.B.: D.O.A.: 04-21-08 FACILITY AMOUNT Trinity Hospital (4-21-08 to 3-16-09) ................................ $ 10,584.50 Trinity Clinic (4-21-08 to 8-16-10) .................................. $ 4,333.00 MeritCare Hospital (9-18-08) ......................................... $ 67.00 MeritCare Clinic (9-18-08) ........................................... $ 219.00 KeyCare Medical (4-24-08 to 7-22-08) ................................. $ 465.80 Prescriptions ........................................................ $ 5,270.87 TOTAL ............................... $ 20,940.07 Plaintiff's Exhibit No. 27.As previously noted, Harasym returned to work as a teacher during the 2008 school year. However, she had difficulty being on her feet throughout the work day, and did not feel that she could adequately perform her work as a Title I teacher for the Minot Public School District. In late 2008, a Title I position with the North Dakota Department of Public Instruction became available. The position was entitled "Title I Assistant Director" and the job required Harasym to commute from Minot to Bismarck. Harasym was offered the position as "Title I Assistant Director" and began work in that capacity in January 2009. Harasym loved teaching but simply felt that she could no longer work in that capacity as a result of the injury to her right foot. She has experienced a slight decrease in her annual earnings as compared to her annual income while employed as a teacher. A summary of her W-2 earnings is set forth below:
JACKI HARASYM W-2 SUMMARY YEAR EMPLOYER AMOUNT TOTAL 2004 Minot Public School $48,593.00 District #1 (Box 3) $50,623.00 (TAX-00005) Leavitt, Inc. $194.00 (TAX-00006) Gallery 18 $1,836.00 (TAX-00007) 2005 Minot Public School $49,929.90 District #1 (Box 3) $51,057.41 (TAX-00073) Gallery 18 $1,127.51 (TAX-00073) 2006 Minot Public School $51,106.42 District #1 (Box 3) $52,772.83 (TAX-00024) Gallery 18 $1,391.26 (TAX-00023) Scheels All Sports, Inc. $275.15 (TAX-00026) 2007 Minot Public School $50,567.00 District #1 (Box 3) $52,646.67 (TAX-00042) Gallery 18 $1,395.00 (TAX-00072) Scheels All Sports, Inc. $684.67 (TAX-00072) 2008 Minot Public School $53,851.32 District #1 (Box 3) $54,874.09 (TAX-00069) Gallery 18 $800.63 (TAX-00070) Scheels All Sports, Inc. $222.14 (TAX-00070) 2009 Minot Public School $3,342.66 District (Box 3) (TAX- $44,961.42 00068) Sate of North Dakota $41,618.76 (Box 3) (TAX-00068) 2010 State of North Dakota $46,953.92 $46,953.92 (Box 3) (TAX-00067) Plaintiff's Exhibit No. 28.Harasym noted that she now works twelve (12) months per year as compared to the teaching position she previously held which was a nine-month or 184-day contract period.
Before the accident on April 21, 2008, Harasym was a physically active person. She regularly participated in activities such as walking, hiking, running, racquetball, softball, and golf. Since the accident, Harasym has been unable to take part in most of those activities, although she attempts to walk on a daily basis. She has essentially resigned herself to taking part in more sedentary activities. It is undisputed that she is no longer able to be as physically active as she once was. Nevertheless, Harasym has been described by herself and others as a vibrant and "high energy" person.
The evidence reveals that Rick Harasym accompanied his wife to the Post Office on April 21, 2008. He opened the door for his wife as they entered the building. Rick Harasym said he never saw the left door (east door) strike his wife, but he did see her drop to the floor and scream that she had been struck by the door. Harasym said after he assisted his wife back into their car, he went into the Post Office to look for help and came in touch with Cynthia Weigel, an employee of the United States Postal Service. Harasym said Cynthia Weigel brought a camera with her and, as they were leaving the building, Weigel said, "normally these doors are locked on windy days." Harasym said Cynthia Weigel took photos of the double entry doors as well as photos of his wife's right foot. See Defendant's Exhibit No's. 104-108. Harasym spoke to Weigel approximately 2-3 days after the accident. He was informed by Weigel to contact a gentleman referred to as "Kevin." Harasym said he spoke with "Kevin" who told him that "he would take care of us" and that "he would be taking care of the doors to repair them." No one has been able to identify the person known as "Kevin."
Rick Harasym went to the Post Office building several days after the accident to inspect the entry doors and he observed that no changes had been made. Harasym returned on several other occasions to check the entry doors but again found that nothing had changed. On those occasions when Harasym returned to the Post Office he opened the front entry doors and they would slam shut quickly after being released. Jacki Harasym's father also observed the same conditions in May 2008 when he visited the Post office. See Plaintiff's Exhibit No. 59. Harasym said he noticed there was virtually no resistance or delay in the closure of the front entry doors. He said it was not until approximately three days after his wife submitted an administrative claim for damages (June 27, 2008) that the entry doors closures were "repaired" and the doors would then close slowly after being opened.
Gail Schmidkunz testified at the trial on September 27, 2010. Schmidkunz is a colleague of Jacki Harasym and is a middle school teacher in Minot, North Dakota. Schmidkunz is familiar with the Post Office building in Minot. Shortly after the accident occurred on April 21, 2008, Schmidkunz said he was at the Post Office and exited the door on the right side (west door as he exited the building). Schmidkunz said the door closed rather quickly on his foot, and the door came over the top of his foot as he was walking out. Schmidkunz said if he had not been wearing boots at the time it is likely he would have been injured.
Daniel Saunders is currently employed as the manager of maintenance for the United States Postal Service in Minot. He has held that position since November 2007. Saunders is the supervisor of Les Becktold who was the maintenance mechanic at the Post Office on April 21, 2008. Saunders had no personal knowledge of the events surrounding the accident.
Saunders is familiar with the door closures on the double entry doors which lead into the Post Office building. He acknowledged the door closures are designed to slow the closing of the door and pull it completely shut at the end of the cycle. He compared the door closures to that of screen doors frequently found on residential homes. Saunders understood that the door closure on the left side, or the east side of the front entrance, was replaced shortly after the accident on April 21, 2008. However, Saunders acknowledged that no records exist which reveal whether the left door closure was ever replaced.
Saunders testified that a number of inspections are conducted of the Post Office building. Specifically, there are semi-annual inspections of the front entry doors. Saunders said the entry doors to the building were inspected on March 20, 2008, and the inspection included a check of the door closures. See Defendant's Exhibit No. 113. The records reveal that an additional inspection was conducted on April 14, 2008. On that date the records reveal the maintenance staff again checked the door closures. Id. Although the records from the United States Postal Service reveal that semi-annual inspections of the building and doors were conducted, Saunders acknowledged that there are no records which indicate whether any maintenance was performed or adjustments made to the door closures at the time of the inspections. He said there is a screw adjustment to the door closures which can increase or decrease the tension. However, no records exist which would reveal whether or when any adjustments were made to the closures on the front entrance doors.
Saunders said there are no policies or procedures in existence at the Post Office which address the subject of whether the front entry doors are to be locked and/or signed in some manner on windy days. The front double-door entry to the Post Office building is open 24-hours a day. Saunders said he has never closed either of the doors on windy days.
On the day of the accident (April 21, 2008), Saunders was informed of the Harasym incident shortly after 5:00 p.m. Saunders said he and Cynthia Weigel inspected the front entry doors and it appeared that the doors were operating in a normal fashion. Saunders said the wind was directly out of the west that day, and the winds were blowing at 20-30 miles per hour and were gusty at times. The weather records from April 21, 2008, reveal that at 4:54 p.m. the winds were directly out of the west at a speed of 20.7 — 27.6 miles per hour. See Defendant's Exhibit No. 114. Saunders acknowledged that westerly winds would blow directly into the left front entry door (east door) of the building where Harasym entered and would tend to force the door open.
Cynthia Weigel is a supervisor of customer service for the United States Postal Service in Minot. Weigel generally handles customer complaints as well as accident or incident reports. Weigel has worked at the Post Office since 1985. She said they never had any complaints about the front entry doors.
Weigel acknowledged that after she was contacted by Rick Harasym on the day of the accident, she obtained a camera and took pictures of the front entry doors and Jacki Harasym's injured right foot. See Defendant's Exhibit No's. 104-108. Weigel recalled that the wind was blowing from the west but she observed that the entry doors were operating properly. Weigel said the Postal Service has no policy with respect to the closure of either front entry door on windy days and, to the best of her knowledge, that has never been done. Weigel denied that she had told the Harasyms that one of the front doors is generally locked on windy days. Weigel also denied that she told the Harasyms to go to an emergency room to have Jacki Harasym's foot checked.
The testimony of Leslie Becktold was presented at trial via a written deposition. See Plaintiff's Exhibit No. 64. Becktold previously worked for the United States Postal Service in Minot for 32 years. He retired in July of 2009 and currently resides in Arizona.
Becktold said he learned of the injury sustained by Jacki Harasym several days after it occurred when he was called into the office of Postmaster JoAnn Barstad. Becktold said Barstad requested that he check the front entry doors to determine whether they were operating properly. Becktold checked the front entry doors but he did not notice "much of a problem." He made some adjustments to the door closures but felt the doors were "working pretty good." Becktold said a few days later Postmaster Barstad requested that he replace the door closure, which he did. It is undisputed that there are no records in existence which reveal whether the door closure on the left door (east door) was ever replaced. This was the door area in which Harasym had entered when she was injured on April 21, 2008.
Becktold was also questioned about any problems that may have existed with the front entry doors on windy days. The following colloquy reveals his recollection:
Q. Do you recall having any problems with one of the front doors when it was a windy day? A. All doors are a problem on a windy day. Q. What kind — what problem do you have? A. If the wind comes out of the north there, they're hard to open and hard to close, or easy to close I should say. Q. Because the wind would kind of force the door in or resist it being pushed out? A. Yes. Q. Okay were there any complaints that you had received or heard about from customers about the front doors on windy days? A. Not that I recall. Q. Had anybody told you that there was a particular problem with one of the front doors and it closing differently than the other ones on windy days? A. Not that I recall at all. Q. Were there occasions where one of the front doors had to be locked so it couldn't be used because of the wind? A. We would hang a sign on them sometimes. Q. What would the sign say? A. Use next door or, you know, use other door. Q. And by that did you mean the right door or the left door when you looked into the building from the outside or were you referring to go to a different location and use a different door? A. No. Same location, just right or left-hand door. It depends on which way the wind was blowing. Q. Okay. So you would like lock out half of — one half of the doors? A. Yes. BY MR. LILLEHAUG: Q. So if we're looking at — if you could take a look at Exhibit 11. A. Yes. Q. Those are what we have been calling the front doors, right? A. Yes. Q. So on some days you might lock out the door on the left and put up a sign saying use the door on the right? A. Yes. Q. And on other days you might lock out the door on the right and say use the door on the left? A. Yes. Q. Who made the decision whether or not to lock out one of those doors on windy days? A. It was a call thing. Usually our maintenance people in the mornings if it was windy out there, they'll get a sign and throw it on there. Q. What about if it were later in the day, who would usually make that call or that decision? A. I guess nobody would make the call. It just depended on, you know, if it was real windy. Q. So if somebody noticed it or something is what you are saying? A. Right, if somebody noticed it was windy enough and say you should put a sign on there. And it could be anybody. It could be the window clerks. It could have been one of the custodians. Q. How often would you say that happened in any given month? A. Boy, that's hard to say too. I don't know. Q. Would it happen at least once a month? A. I think the wind in North Dakota blows every day but — Q. Yeah. A. Yeah, at least I'm sure once a month maybe, you know, that it would get windy enough to — Q. And what was the concern, that the wind would push the door shut too fast or too hard? A. It was either that was a problem or else it would catch you and throw you right out the front door. Q. Okay. When you were trying to exit? A. Right. See Plaintiff's Exhibit No. 64 (Deposition of Leslie Becktold), pp. 14-17.The plaintiff called Don Peterson as an expert witness. Peterson is a forensic engineer from Brainerd, Minnesota. He has a bachelor of science degree in mechanical engineering from the University of North Dakota, and a master's degree from the University of Minnesota. Peterson is board certified as a forensic science examiner.
Peterson conducted several forensic tests on the door closures located on the front entry doors of the Post Office building. There were two door closures that were removed and examined by Peterson. One of the door closures was described as a "brown closure" which Peterson understood was located on the left door of the building (east door). The other door closure was described as a "gray closure" which Peterson understood was located on the right door of the building (west door). With respect to the brown door closure, Peterson said the closing device operated in a "very sporadic and inconsistent manner." He said the closing tension of the brown door closure appeared to be "very abnormal." Specifically, Peterson opined that (1) the brown door closure which he determined had been on the left door (east door), had erratic and unpredictable closing speed; (2) there was some internal leakage that was obvious from a visual inspection of the door closure; (3) the brown door closure operated much faster than the gray door closure; and (4) the internal damping function of the door closure did not work properly.
Rick Harasym testified that he observed it was the brown door closure that was located on the left door (east door) of the front entry doors on the date of the accident. The defendant and its witnesses contend that it was the gray door closure that was located on the left door. Suffice it to say that the evidence as to which door closure was located on the left door (east door) on April 21, 2008, is unclear and conflicting.
JoAnn Barstad is a retired postmaster in Minot and worked in that position since 1987. Barstad said the Post Office had never received any complaints nor been notified of any injuries to customers entering or exiting the building before April 21, 2008. Barstad was unaware of any occasions in which one of the front entry double-doors would have been locked on windy days. She did not believe that anyone had keys for the front entry doors other than herself.
On September 29, 2011, the defendant called Dr. Mariusz Ziejewski as an expert witness. Dr. Ziejewski is a professor in the College of Engineering at North Dakota Sate University in Fargo, North Dakota. He is also an Adjunct Professor in the Department of Neuroscience at the University of North Dakota School of Medicine. Dr. Ziejewski was retained to determine the performance characteristics of the door closure involved in the incident at the Post Office in Minot on April 21, 2008. The opinions formulated by Dr. Ziejewski are based on his analysis of the door closures, case specific laboratory testing, and calculations using scientific and engineering methodologies generally accepted in the engineering field.
Dr. Ziejewski performed six (6) tests with the subject door closure and an exemplar closure. Dr. Ziejewski concluded that the general characteristics of both closures were similar and both closures exhibited an initial push (compression) with subsequent pull (tension) characteristics.
Dr. Ziejewski expressed the following opinions to a reasonable degree of engineering certainty:
1) The general characteristics for both tested closures were similar;
2) Both the subject and exemplar closures exhibited similar characteristics;
3) The subject door closure exhibited a greater pull force (tension);
4) The maximum magnitude of the push force (compression) for the subject door closure was approximately 13.5 pounds and for the exemplar door closure it was approximately 12.2 pounds;
5) The maximum magnitude of the pull force (tension) for the subject door closure device was approximately 13.1 pounds and for the exemplar door closure it was approximately 7.2 pounds.
The audiovisual deposition of Dr. Tyson Williams was offered into evidence at trial. See Plaintiff's Exhibit No. 65. Dr. Williams is a podiatrist at the Trinity Medical Center in Minot, North Dakota. He is licensed by the State of North Dakota to practice podiatry and is board certified by the American Board of Podiatric Surgery in foot surgery and reconstructive foot and ankle surgery. Dr. Williams has been treating Jacki Harasym for the injury that she sustained to her right foot on April 21, 2008.
Dr. Williams opined to a reasonable degree of medical certainty that Jacki Harasym suffered an injury to her foot as a result of it being crushed or struck by the front entry door of the Post Office on April 21, 2008. Dr. Williams opined that in his professional opinion Harasym suffers from a condition commonly referred to as Reflex Sympathetic Dystrophy (RSD) which is the most significant problem that she is experiencing that causes chronic pain. Dr. Williams opined that is a permanent condition.See Plaintiff's Exhibit No. 65, pp. 11-12.
Dr. Williams said that RSD is also referred to as Complex Regional Pain Syndrome. He said that RSD seems to affect the extremities the most and the lower extremity is very prone to such injury. Dr. Williams said the initial trauma was a soft-tissue injury involving several tendons. However, Harasym also experienced nerve symptoms such as numbness and tingling and had noticeable temperature changes and discoloration in her foot which are common characteristics associated with RSD. In addition, Harasym experienced heightened or disproportionate pain to the injury involved which is another indicator of the RSD syndrome. Dr. Williams said the pain associated with the RSD is generally a permanent condition.
Dr. Williams was questioned during his deposition concerning future treatment and he stated as follows:
Q. Now, in terms of ongoing treatment in the form of physical therapy, would that be something that would likely need to occur in the future? A. Yes. I — I think that she's going to have to, either on her own or go to formal physical therapy, make sure that she maintains as much motion as she can in the affected limb. But some of that she might be able to do so on her own, some of it she might have to do formally. But it needs to be monitored so she can have her best results long term. Q. What does the future hold for her with respect to this condition? A. Well, for most people with — with chronic RSD, it is living with pain. And she's going to have to find a way to live with this pain. There are some treatments for it, including something that she's explored, and I think I even mentioned to her, exploring the spinal stimulator. And that goes in and stimulates these sympathetic nerves and helps some people diminish that pain. It never — it doesn't take away the condition, but it can help you function with less pain and maybe do more things. So that might be something that can help her in the future. That's not my expertise. Q. Yeah. And you mentioned some of these treatment and that you generally refer people to other pain physicians — A. Mm — hmm. Q. — for treatment of this condition. A. Correct. Q. Is that Dr. Colon here at Minot that has been doing that with Jacki? A. I think he was — yeah, he was the one I first referred her to was Dr. Colon. Q. And then you also referred her to Dr. Ghazi at MeritCare in Fargo for a second opinion? A. Correct. Q. And then you followed up with her even after that to keep current on her status? A. Correct. I try to keep — keep in touch with her. I felt like a lot of the things that I was doing wasn't nearly as important as the pain — pain doctors at that point. But I just felt like kind of the middle person to make sure I coordinated her care and make sure that she'd get better. So there wasn't as much from my standpoint that I could do to heal her original injury because that had been taken care of for the most part. And her tissues had healed but her RSD had continued. So I felt responsible to make sure she got the best care she could, and even though it wasn't through me, I just — I tried to make sure she was seen at the correct places. Q. And the ongoing problems that she's having with this condition are tied back to that initial injury in the post office door? A. Yes. Plaintiff's Exhibit No. 65 (Deposition of Dr. Tyson Williams), pp. 23-25.Dr. Williams acknowledged that he has no expertise in the implementation of a spinal stimulator which is one of many treatment modalities available in addressing the condition of RSD. In essence, Dr. Williams' opinions as to future medical care and treatment are that Jacki Harasym is going to need physical therapy to ensure that she maintains adequate motion in the affected limb, and that the physical therapy can be conducted on her own or in a formal session with a therapist. There was scant medical evidence submitted relative to future medical care and treatment.
The defendant had an independent medical examination (IME) conducted by Dr. Frederick T. Strobl. See Defendant's Exhibit No. 117. Dr. Strobl is a board certified neurologist associated with the Minneapolis Clinic of Neurology in Minneapolis, Minnesota. Dr. Strobl conducted an IME of Jacki Harasym at the Minneapolis Clinic of Neurology on June 21, 2010. Dr. Strobl's videotape trial deposition was taken on May 3, 2011. Dr. Strobl has been conducting independent medical examinations and chart reviews since 1984, and has conducted in excess of 200 IME's annually. The opinions of Dr. Strobl are set forth in his videotape deposition as follows:
Q. Doctor, I'd like to ask you two opinions in this case. The first one is: In your opinion does the plaintiff have the diagnosis of RSD or the condition or other similar syndromes? A. No, with reasonable medical certainty I'd be forced to conclude based on the data that I've seen up to this point that she does not. Q. In your opinion is her condition permanent? A. I do not believe she has a permanent condition. Q. And again what is the basis for those opinions? A. Well, there's no objective evidence in this patient supporting a diagnosis that she has a permanent injury of any type. Again there was redness on the side but there's no other support data, and in of itself there's already an explanation that would be sufficient for that. But even if we assume that she had a little bit of the redness and so on I don't think you could still reach the diagnosis of an RSD. Q. Are the opinions that you've stated here today based upon a reasonable degree of medical certainty? A. Yes. See Defendant's Exhibit No. 117, pp. 27-28.II. CONCLUSIONS OF LAW
Actionable negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge that duty, and a resulting injury proximately caused by the breach of the duty. Botner v. Bismarck Parks and Recreation Dist., 210 N.D. 95 (8, 782 N.W.2d 662). Negligence actions are generally not appropriate for summary judgment because they involve issues of fact. Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts. Doan v. City of Bismarck, 2001 N.D. 152, (7, 632 N.W.2d 815).
It is well-established under North Dakota law that a landowner owes a general duty to entrants to maintain their property in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Botner v. Bismarck Parks, 2010 ND 95, ¶ 9, 782 N.W.2d 662 (quoting Groleau v. Bjornson Oil Co., 2004 ND 55, ¶ 6, 676 N.W.2d 763). "If a landowner permits dangerous conditions to exist on the premises the landowner must take reasonable measures to prevent injury to those whose presence on the property reasonably can be foreseen."Saltsman v. Sharp, 2011 ND 172, ¶ 11 (quoting Fast v. State, 2004 ND 111, ¶ 8, 680 N.W.2d 265). As a general rule, the owner or occupant of property must act as a reasonable person in maintaining the premises in a reasonable and safe condition.Schmidt v. Gateway Cmty. Fellowship, 2010 ND 69, ¶ 8, 781 N.W.2d 200 (citing O'Leary v. Coenen, 251 N.W.2d 746, 748-52 (N.D. 1977)).
The duty to inspect, repair, or warn is summarized in the North Dakota Jury Instructions — Civil, C-17.10, as follows:
Duty of Possessor to Lawful Entrant — Injury Caused by Condition of Premises
A possessor of land owes a duty to a lawful entrant upon the premises to use reasonable care to [inspect and repair the premises] [or] [warn the entrant] in order to protect the entrant from an unreasonable risk of harm caused by the condition of the premises while the entrant is on the premises.
In determining reasonable care of the possessor, the following facts may be considered:
1) The purpose for which the entrant entered the premises;
2) The circumstances under which the entrant entered the premises;
3) The use to which the premises is put or expected to be put;
4) The foreseeability or possibility of harm;
5) The reasonableness of the inspection, repair, or warning; and
6) The opportunity and ease of repair or correction or the giving of the warning.
The North Dakota Supreme Court has applied the Restatement (Second) of Torts §§ 343 and 343A in premises liability cases.See Groleau, 676 N.W.2d at 769. The Restatement (Second) of Torts, § 343 is entitled "Dangerous Conditions Known to or Discoverable by Possessor" and provides as follows:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The Restatement (Second) of Torts § 343A further provides:
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.
The threshold issue to be resolved is whether the United States Postal Service, the owner or occupant of the property, i.e., the Post Office Building in Minot, acted as a reasonable person in maintaining the premises in a reasonable and safe condition in light of the circumstances that existed on April 21, 2008.
The greater weight of the evidence has shown that it was very windy on April 21, 2008, the day the accident occurred at the Post Office building in Minot, North Dakota. The wind was blowing directly out of the west. The weather records reveal that around the time of the accident the wind speed was 20.7 — 27.6 miles per hour. See Defendant's Exhibit No. 114. Every witness who testified at trial said it was a very windy afternoon and the winds were strong and gusty at times. The strong westerly winds were blowing directly into the left front entry door (east door) of the building where Jacki Harasym entered on April 21, 2008.
The greater weight of the evidence has shown there are no policies or procedures in existence at the Post Office which address the subject of whether the glass, front entry doors to the building are to be locked and/or signed in some manner on windy days. According to several employees of the United States Postal Service in Minot (Daniel Saunders, Cynthia Weigel, and Postmaster JoAnn Barstad), the double-entry doors are never closed or locked on windy days, and they have never had any complaints concerning the entry doors. However, conflicting testimony was presented from Leslie Becktold who worked as a maintenance employee at the Post Office in Minot for 32 years before he retired in July of 2009. Becktold said that on some windy days he would lock out one of the front entry doors and put up a sign informing customers to use the other door. See Plaintiff's Exhibit No. 64 (Deposition of Becktold), pp. 15-16. Becktold said the decision to do so was a judgment call made by Post Office employees. Id. at p. 16. He estimated one of the doors was locked out "at least I'm sure once a month." Id. at p. 17. Becktold said the reason one of the doors would be locked and a sign put up was there would be a concern that the wind would catch one of the doors or "it would catch you and throw you right out the front door." Id.
Leslie Becktold has no reason to fabricate a story as to how the maintenance staff at the Post Office dealt with the front entry doors on windy days. The Court finds the testimony of Leslie Becktold to be honest, straight-forward, credible, and reasonable. The owner or occupant of a building owes a general duty to entrants to maintain the premises in a reasonably safe condition in view of all of the circumstances. Common sense tells one that extremely windy and gusty conditions could potentially result in property damage to the glass entry doors at the Post Office or cause injury to persons, and the burden of avoiding any such risk is minimal at best.
The greater weight of the evidence reveals that the United States Postal Service in Minot had, at least once a month on windy days for many years, taken reasonable measures to lock out one of the front double-entry doors and post a sign on the door informing customers in an effort to avoid or minimize any risk of property damage or injury to persons entering or exiting the building. A reasonable owner or occupant of a public building would generally take such minimal precautions on windy and gusty days and the Postal Service did so in the past.
The greater weight of the evidence revealed that on April 21, 2008, the door closures on the double-door entry doors to the Post Office may not have been functioning properly which, in some manner, likely contributed to the accident. Both parties called expert witnesses who conducted a number of forensic tests to determine the performance characteristics of the door closures. The Court finds that neither expert witness provided opinions which shed any great light or insight into whether the door closures were operating properly and as expected on April 21, 2008, particularly in light of the windy conditions that existed. Suffice it to say the opinions were directly conflicting and of minimal assistance.
With respect to the operation of the door closures, there was also conflicting testimony from fact witnesses as to the condition of the door closures before, during, and after the accident on April 21, 2008. The Postal Service employees who testified at trial said the front entry doors and door closures were working properly at all times. To the contrary, Rick Harasym, Gail Schmidkunz, and Jacki Harasym's father (as noted in a diary entry — see Plaintiff's Exhibit No. 59) each confirmed that the door closures did not appear to be operating properly because when they checked the doors after the accident, it was found that the front entry doors would slam shut when opened and there was little, if any, resistance or delay in the closure of the entry doors. The Court finds the testimony from the plaintiff's fact witnesses to be consistent, credible, and supported by the greater weight of the evidence.
The greater weight of the evidence supports a finding that on April 21, 2008, the front entry door closures, particularly the door closure on the left door (east door), were not functioning as expected due, in part, to the weather conditions. The windy/gusty conditions likely created a swirling effect in and around the entry doors when both doors were opened which in turn created an unsafe condition at times. Leslie Becktold said "at least I'm sure once a month" windy conditions existed around the front entry doors to the Post Office. On those occasions someone on the Postal Service maintenance staff would lock out one of the doors depending upon the direction of the wind, and post a sign on the doors informing customers to use the other door. The Court finds that common sense, combined with the testimony of Leslie Becktold, supports a finding that the reason such steps were taken was a legitimate concern that the wind may push a door open too quickly or close one of the doors far too fast. A building owner is obligated to take reasonable measures to prevent injury to those whose presence on the property can be foreseen. Locking out one of the front, glass double-entry doors and posting a sign on the door on windy and gusty days is a reasonable measure that requires little effort and no cost. More important, it is a safety measure the Postal Service maintenance staff had taken at least once a month in years past.
Rick Harasym testified that on April 21, 2008 (the day of the accident), he spoke with an employee of the Postal Service (Cynthia Weigel) who told him that "normally these doors are locked on windy days." Although Weigel denies making such a statement, the greater weight of the evidence shows that the maintenance staff at the Post Office had taken such safety measures in the past, and it would have been reasonable to take such measures on April 21, 2008. An owner or occupant of a building owes a general duty to entrants to maintain the property in a reasonable and safe condition in view of all of the circumstances. The Court concludes that on April 21, 2008, the United States Postal Service failed to take reasonable measures which it had admittedly taken in the past, to prevent property damage or injury to others in view of all of the circumstances. The result of the failure to discharge that duty proximately resulted in an injury to Jacki Harasym.
The greater weight of the evidence has shown that Jacki Harasym suffered a contusion injury to the soft tissues and bone of her right foot in the door-closing incident on April 21, 2008. Unfortunately, the minor injury mushroomed into a more serious and chronic condition. The greater weight of the evidence has established that the door-closing incident at the Post Office is a proximate cause of the injuries that Harasym has sustained.
In a civil action for damages for personal injury arising out of tort, damages may be awarded for economic and non-economic losses. See N.D.C.C. § 32-03.2-04. "Economic damages" include damages arising from medical expenses and medical care, rehabilitation services, loss of earnings and earning capacity, loss of income, loss of employment or employment opportunities, and other monetary losses. Id. The term "non-economic damages" are damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, fear of loss, and other non-pecuniary damages. Id. Such compensation is measured by the reasonableness of the award in the light of all of the circumstances of the case. The trier of fact is required to make separate findings to specify 1) the amount of past economic damages; (2) the amount of future economic damages; and 3) the amount of non-economic damages. See N.D.C.C. § 32-03.2-05.
The greater weight of the evidence reveals that Jacki Harasym has sustained the following damages as a proximate result of her injuries:
Past Economic Damages — $36,936.82
a. Past medical expenses — $20,940.07 (Plaintiff's Exhibit No. 27)
b. Past wage losses — $15,996.75 (Plaintiff's Exhibit No. 28)Future Economic Damages — $50,000.00
It is well-established under North Dakota law that future damages must be proved with reasonable certainty and cannot be awarded on the basis of speculative possibilities or conjecture.Teegarden v. Dahl, 138 N.W.2d 668 (N.D. 1965). In order for a plaintiff to recover for future medical services there must be "substantial evidence to establish with reasonable medical certainty that such future medical services are necessary." South v. National R.R. Passenger Corp., 290 N.W.2d 819 (842) (N.D. 1980). Damages based on the mere possibility of future medical treatment are not permissible. Holecekv. Janke, 171 N.W.2d 94 (N.D. 1969);Olmstead v. Miller, 383 N.W.2d 817, 822 (N.D. 1986).
There was scant evidence presented, based upon a reasonable degree of medical certainty, as to the length of time Jacki Harasym would continue to need to be seen by a medical specialistor the cost of such professional services. There was also scant evidence presented, based upon a reasonable degree of medical certainty, as to the specific medication regimen that Jacki Harasym will need to remain on or the length of time that it will be necessary for her to remain on such medications. The plaintiff's treating podiatrist, Dr. Tyson Williams, offered no specific evidence on this subject matter other than his belief that Harasym would need physical therapy — either on her own or formal physical therapy sessions. Nevertheless, one can surmise or draw reasonable inferences from past medical expenses incurred what the reasonable costs of future services may be.
There was evidence presented concerning the possibility that Jacki Harasym may need to explore the implantation of a spinal stimulator to control her pain in the future. However, neither Dr. Tyson Williams nor any other medical expert witness or treating physician, opined that a spinal stimulator was medically necessary or needed in the future, based upon a reasonable degree of medical certainty. As noted, future damages cannot be awarded on the basis of speculative possibilities devoid of medical testimony.
With respect to future wage losses, prior to this injury Jacki Harasym was an elementary school teacher in the Minot Public School District and worked part-time at several other local Minot businesses. On average for the years 2004-2008 she earned $51,774.98 per year.
After the accident Harasym returned to the Minot Public School District for the 2008 school year but could not continue working as an elementary teacher because of the pain in her right foot and the need for her to be on her feet all day. She did secure a job with the North Dakota Department of Public Instruction which began in January of 2009 but resulted in a slight reduction in her annual compensation. Her earnings for 2009-2010 amounted to $45,957.67 which equates to an average earnings loss of $5,817.00 per year. Based on a careful review of the past wage losses (Plaintiff's Exhibit No. 28) and Harasym's very favorable job performance and evaluations with the Department of Public Instruction (Defendant's Exhibit No's. 110-111), it is reasonable to assume or infer that her wage losses will lessen over time and there will be opportunities for increased responsibilities and earnings with the DPI which will equal or possibly outweigh the disparity in income which has existed to date. Nevertheless, Jacki Harasym has suffered wage losses in the past and will continue to experience some wage losses in the future.
Non-Economic Damages — $100,000.00
The great unknown in any personal injury action are the non-economic damages sustained by an injured person. No fact finder, whether a judge or a jury, can reasonably assess the monetary value of such damages. The greater weight of the evidence has shown that the foot injury has had a significant impact on Jacki Harasym's life. She was essentially required to give up her position as an elementary school teacher in the Minot Public School District because she was unable to work on her feet all day. Fortunately, she secured a good job in the Title I field with the North Dakota Department of Public Instruction which requires less standing and is more of a sedentary position. The Court would note that it is unlikely Harasym would give up a long and rewarding career as an elementary school teacher in Minot, and then take a non-teaching position out-of-town that required her to leave her family and commute from Minot to Bismarck each week for many months, if the injury she sustained to her foot was not serious.
Harasym was a physically active person before this injury but has now been forced to limit her recreational activities. The undisputed evidence reveals that Harasym experiences chronic pain and discomfort in her right foot which is only relieved with the regular wearing of a Lidoderm patch and the use of pain medications. Although pain limits her physical activities, she regularly walks, does low impact weight lifting, and undertakes her best efforts to try to keep the joint moving in order to avoid atrophy and weakness. Non-economic damages are recoverable under North Dakota law and, in considering the reasonableness of any such award, the fact finder needs to consider whether the element of damage is temporary or permanent and whether in the future it can or will be averted or alleviated. In the exercise of its discretion, the Court finds that the non-economic damages amount to $100,000. The total judgment is in the amount of $186,936.82.
Prejudgment interest is not recoverable in an action brought under the Federal Tort Claims Act. See 28 U.S.C. § 2674.