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DEVEAU v. UNITED STATES

September 16, 1993

JOHN DeVEAU and PATRICIA DeVEAU, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.


Hurd


The opinion of the court was delivered by: DAVID N. HURD

United States Magistrate Judge

 MEMORANDUM-DECISION and ORDER

 I. INTRODUCTION.

 The plaintiffs, John DeVeau and Patricia DeVeau, ("Plaintiffs"), filed suit pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., and 1346(b) alleging that the defendant, United States of America ("Defendant") was negligent. More specifically, plaintiffs claim that plaintiff John DeVeau ("plaintiff") sustained personal injuries because the defendant failed to "repair, inspect, maintain, monitor, or keep the said premises and its walking areas in a manner that would provide reasonable and adequate safety to plaintiff John DeVeau, and others, and by failure to warn the public of a dangerous condition of which defendant had knowledge." (Complaint - P 10). Plaintiffs seek damages for his personal injuries and her loss of consortium. The defendant, in its answer, denied the material allegations in the complaint, and alleged as an affirmative defense that the plaintiff was comparatively negligent.

 The court conducted a two day nonjury trial on May 3, and 4, 1993, in Watertown, New York. The following Memorandum-Decision and Order constitutes this court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil procedure.

 II. FACTS.

 The defendant, through its agency the U.S. Postal Service, occupied and was responsible for the maintenance of a postal facility at Ellisburg, New York. It was built in 1976, and consisted of a one story building with a parking lot and sidewalk in front. (Plaintiffs' Exhibits "1" and "3"). The main entrance, and the only entrance for the public, consisted of a door which opens outward. Upon going through the door from the outside, a patron enters a room which is shaped like an inverted L with a stand-up desk on the immediate right and mailboxes at the far end. (Plaintiffs' Exhibits "2", "3", and "4"). A patron may proceed to the right to the stand-up desk, go straight ahead to the mailboxes, or turn left and go through an interior door to another room where a counter is located to buy stamps etc., or to see the postmistress. The vinyl floor in the inverted L shaped room was covered with two rugs. The two rugs were positioned so as to cover each leg of the inverted L, but left a nine inch gap between the two rugs. (Plaintiffs' Exhibits "3" and "4"). This gap exposed the vinyl floor directly in front of the outside door. (Plaintiffs' Exhibit "4"). The two rugs had been in this position since at least 1978. There is no record of anyone slipping or falling in the area of this "vinyl gap" prior to the plaintiff's accident of August 17, 1988.

 The plaintiffs are husband and wife. Plaintiff was born on September 12, 1931, and presently has a life expectancy of seventeen years. Mrs. DeVeau was born on July 7, 1938. They live about three/fourths of a mile from the post office.

 At the time of the accident, the plaintiff worked for New York Air Brake in Watertown as a supervisor. He often got oil on his shoes while working. It was his custom to visit the post office almost every day after work between 5:00 P.M. and when the post office closed at 5:30 P.M. Following his visits, the post mistress would often have to clean up black oil marks left behind from his shoes. However, she never talked to him about this problem. She was also aware of other patrons tracking in other substances such as cow manure. The plaintiff had never slipped and fallen during the year and a half prior to the accident when he entered the post office on those routine visits, nor had he ever complained about the care and maintenance of the building.

 Plaintiff worked as usual on August 17, 1988. He was wearing work shoes that had a hard toe and rubber soles that were smooth. (Defendant's Exhibit "2"). During the course of that work day, he undoubtedly accumulated some hydraulic oil on the heels and soles of his shoes. It rained during the day, but it had stopped when he left work at approximately 4:30 P.M. However, the sidewalks and streets were still wet. He drove directly to the post office, and arrived at 5:25 P.M., parked, got out of his automobile, walked across the wet sidewalk, and entered the building. At that time, he had oil and/or water on the heels and/or soles of his shoes. Because it had been raining earlier in the day, the rugs and vinyl gap inside the door were damp.

 The postmistress was on vacation that day, and the relief clerk was the only one on duty. She knew it had been raining that day. No signs were posted warning patrons of the damp floor or the position of the rugs.

 The plaintiff opened the door, stepped in, and started to turn to his left in order to proceed to the interior door and the counter. As he did so, his first step was on the vinyl gap between the two rugs. As a result of moisture on his shoes or the moisture in the vinyl gap or both, he slipped and fell on his ...


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