Summary
granting summary judgment because plaintiff failed to show that defendant's notice of prior accidents of an unsafe condition notified defendant of an unsafe condition of the particular mat over which plaintiff allegedly fell
Summary of this case from Perrott v. U.S.Opinion
No. 99 C 3076
September 1, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff, Loretta Franke, brought this action against the Defendant, United States of America, pursuant to the Federal Torts Claim Act ("FTCA"), 28 U.S.C. § 2671, et seq., for personal injury damages allegedly caused by the Defendant's failure to use ordinary care in the maintenance of its premises. The Defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). For the reasons set forth in this memorandum opinion and order, the Defendant's motion for summary judgment is hereby granted.
BACKGROUND FACTS
On February 20, 1998, at approximately 2:00 p.m., Plaintiff entered the United States Post Office, located at McDonough Street, Joliet, Illinois ("Post Office") to buy stamps. Plaintiff testified that she walked 10 or 20 feet, turned left, and tripped on the turned up corner of a rug runner. Plaintiff injured her arm and was taken to the hospital. Plaintiff testified that she noticed neither the rug runner, nor its turned up corner, until after she fell. No one saw the Plaintiff fall. Plaintiff has never before tripped on a Post Office mat.
The relevant facts, which are mostly undisputed, are taken from both parties' submissions pursuant to General Rule 56.1 of the United States District Court for the Northern District of Illinois.
The Plaintiff did present the affidavit of Terry Hockmuth ("Hockmuth") an alleged witness to Plaintiff's fall. However, this court cannot consider the unsworn affidavit of Hockmuth because it does not comport with Federal Rule of Civil Procedure 56(e). See Steinle v. Warren, 765 F.2d 95, 100 (7th Cir. 1985) (refusing to consider unsworn affidavits).
The Defendant admits, only for purposes of this summary judgment motion, that a floor mat caused the Plaintiff to fall.
Richard Swalina ("Swalina") is the Manager of maintenance at the Post Office and is responsible for supervising the employees who maintain the customer lobby area where Plaintiff fell. Swalina generally works from 7:00 a.m. to 3:30 p.m. Anthony Roddy ("Roddy") is one of the maintenance custodians under Swalina's supervision.
The Plaintiff asserts that the Post Office does not check the mats in the lobby. The Post Office admits that it does not have a written policy requiring the lobby's floors to be checked for problems. However, Swalina testified that he instituted a policy requiring the custodians to check and clean the lobby about every two hours, and during inclement weather, to check the lobby and floors more often. In addition, Swalina testified that he walks through the lobby every hour to check for problems and has the mats vacuumed daily. Swalina testified that he does not document the name of the custodians assigned to check the lobby every two hours, but does document the name of the custodian assigned to clean the lobby at night. Roddy also testified that it is part of the custodian's two hour routine lobby check to see if anything is wrong with the rugs in order to prevent people from tripping.
Swalina testified that he never saw a rumpled mat or a mat with the corner turned up at the Post Office. Roddy testified that one time he tripped over a floor mat after he caused it to be either bunched up, or its corner to flip over. Roddy was unable to recall specifically when he caused this to happen, but said it was when he was laying the floor mats out due to bad weather.
There are reports of three prior incidents involving falls at this Post Office. The first incident occurred in 1993 when a postal customer allegedly fell on the rubber mat in the doorway of the Post Office and landed on her left knee. The incident report notes that it was raining outside, the floor mat was dry, and the customer's shoes were wet. It is unclear from the incident report whether the customer slipped on the mat or tripped on the mat. The second incident occurred in 1996 when a postal customer entered the Post Office and slipped on the rubber mat located in the doorway of the Post Office, falling onto his behind. It was raining at the time of the incident. The third and final incident occurred in 1997 when a postal customer allegedly tripped on a carpet located on the floor along the walkway and fell onto her face. It is unclear from the incident report whether that "carpet" was in fact a rug runner.
The mat over which Plaintiff fell, is a rug runner several feet wide and quite long with a rubber backing. At the time of the incident, the Post Office rented the mats from a company that picked up the dirty mats and replaced them with clean ones on a weekly basis. There is no way to know whether a particular mat is ever replaced in the same location from which it was removed the previous week. Therefore, there is no way to know whether the mat that allegedly caused Plaintiff to fall is the same mat that caused any prior falls.
Plaintiff is suing the United States for premises liability under the FTCA. The United States moves for summary judgment, claiming that the Plaintiff cannot establish a prima facie case because she is unable to prove that the United States had notice of the unsafe condition of the rug.
STANDARD OF REVIEW
A 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). A "material" fact is identified by the substantive law on which the claim at issue is predicated. Anderson, 477 U.S. at 248. Consequently, an entry of summary judgment against a non-moving party is proper when the non-movant fails to produce evidence to support an essential element of a claim on which the non-movant bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding a motion for summary judgment, the court views the evidence, and all reasonable inferences drawn from it, in the light most favorable to the non-moving party. Sanchez v. Henderson, 188 F.3d 740, 743 (7th Cir. 1999).
The moving party bears the initial burden of showing, based on "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any," that the non-moving party has failed to produce the evidence necessary to support an essential element of his or her claim. Celotex Corp., 477 U.S. at 323-25. Once the movant meets this burden, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial" which requires the court to deny the motion for summary judgment. Celotex Corp., 477 U.S. at 324. However, under Rule 56(e), the non-moving party may not overcome a motion for summary judgment by citing to "specific facts" contained in his or her pleadings; the non-moving party must go beyond the pleadings and cite to "specific facts" contained in affidavits, depositions, answers to interrogatories, or admissions on file. Id.
DISCUSSION
Actions brought under the FTCA are governed by the law of the state in which the negligent or wrongful act or omission allegedly occurred. See 28 U.S.C. § 1346(b); FDIC v. Meyer, 510 U.S. 471, 477-78 (1994) (interpreting the meaning of § 1346(b)). Accordingly, both parties agree that the law of Illinois is applicable to the case at bar.
Under Illinois law, the Post Office has a "duty to exercise ordinary care to maintain its property in a reasonably safe condition . . . and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." 745 ILCS 10/3-102(a). In order for Plaintiff to prevail on her premises liability claim, she must prove three elements: 1) she was owed a duty of care by the United States, 2) the United State's breached its duty proximately causing her injuries, and 3) the United States had actual or constructive notice of the unsafe condition in time to correct it. Stewart v. United States, 918 F. Supp. 224, 226 (N.D. Ill. 1996); Davis v. United States, No. 98 C 6251, 2000 WL 28272, at *2 (N.D. Ill. Jan. 6, 2000); Burman v. United States, No. 93 C 1553, 1994 WL 9646, at *1 (N.D. Ill. Jan. 12, 1994). The United State's request for summary judgment focuses on the third element, claiming that Plaintiff has failed to establish that the Post Office had actual or constructive notice of a defect in the rug runner which allegedly caused her to fall. A plaintiff establishes constructive notice by showing that a "condition has existed for such a length of time, or was so conspicuous, that authorities exercising reasonable care and diligence might have known about it." Stewart, 918 F. Supp. at 227.
In the case at bar, Plaintiff attempts to rely on three prior falls to establish that the Post Office had notice of an unsafe condition. However, Plaintiff has failed to established a nexus between the mat over which she allegedly fell and any of the mats allegedly involved in the prior falls. In fact, at the time of the accident the Post Office rented the mats from a company that picked up the dirty mats from the Post Office and replaced them with clean ones on a weekly basis. There is no way to know whether any particular mat that is picked up from a specific location in the Post Office is put back in that same location the following week.
There is also no evidence that any of the prior falls occurred at the same place inside the Post Office as Plaintiff's fall. On the contrary, two of the falls occurred in the doorway of the Post Office and the third occurred at an unknown place in the building. It is also unknown whether any of these prior falls were caused by a flipped over, or a bunched up rug runner.
Plaintiff cannot withstand summary judgment by merely speculating that the prior accidents at the Post Office were caused by the same mat that allegedly caused her to fall. "Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment." Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995). Plaintiff has failed to prove that the Post Office was notified by the prior accidents of an unsafe condition of the particular mat over which she allegedly fell.
Plaintiff also testified that she did not see either the rug runner, or its turned up corner, until after she fell. There were no witnesses that either saw Plaintiff fall, or saw the condition of the rug runner prior to Plaintiff's fall. Swalina, the maintenance manager, testified that the custodians routinely check and clean the lobby every two hours and he walks through the lobby every hour to check for problems. Roddy, one of the custodians, testified that it is part of the custodian's duties to check the rugs for problems in order to prevent people from tripping. Swalina testified that the rugs are vacuumed nightly and that he has never seen a flipped over or rumpled floor mat. Consequently, Plaintiff has failed to establish that the Post Office had actual or constructive notice of a problem with the floor mat in question on either the day that she fell or any other day.
Plaintiffs reliance on Roddy's testimony that he tripped over a rumpled mat, or its flipped over corner, is misplaced. Plaintiff has both embellished Roddy's testimony and taken it out of context. Roddy's testimony does not establish actual or constructive knowledge of the unsafe condition at issue in this case. At most, it establishes a general awareness of the potential for such problems with floor mats.
The Plaintiff's reliance on Grewe v. West Washington County Unit Dist. is also misplaced. 707 N.E.2d 739 (Ill.Ct.App. 1999). In Grewe, the plaintiff presented evidence showing that two other people slipped and fell in the same area of the public lobby in which plaintiff slipped and fell. Grewe, 707 N.E.2d at 743. Both of the prior falls occurred about an hour before plaintiffs fall. Id. In addition, the superintendent of the school in which the fall occurred was verbally notified that a slip and fall had occurred prior to plaintiffs slip and fall. Id. The appellate court reversed the district court's directed verdict. Id. at 746. The court found that the defendant had actual notice of at least one person slipping and falling prior to plaintiffs slip and fall, and therefore, "a jury could have found that defendant was negligent in creating the dangerous condition and/or in failing to properly inspect and warn about the dangerous condition." Id. at 743-44. The facts in the case at bar are not analogous to the facts in Grewe. In the case at bar, the prior falls occurred nine months to three years before Plaintiff's fall, the falls were not in the same area as Plaintiff's falls, and the Defendant was not verbally notified of a dangerous condition of the mat prior to Plaintiff's fall.
In sum, Plaintiff has offered no evidence that the floor mat over which she allegedly fell, or any other floor mat, was ever seen by anyone (including herself) in a bunched up or flipped over condition. Plaintiff has also failed to establish that the prior falls were either caused by a rumpled up or flipped over floor mat, or involved the same floor mat that allegedly caused her to fall. The Plaintiff has failed to cite to specific facts that could support a reasonable jury's finding of actual or constructive notice on the part of the United State's, and therefore cannot proceed past summary judgment. See Stewart v. United States, 918 F. Supp. 224, 227 (N.D. Ill. 1996) (granting summary judgment where Plaintiffs evidence did not establish that the United States had constructive notice of the allegedly dangerous condition of the mats before she fell).
CONCLUSION
For the reasons set forth above, the United States motion for summary judgment is hereby granted.(#12-1).