damage to Plaintiff's car was estimated at $ 2,976.49. (Pl. Aff. at 5; Def. 3(g) P 8.)
Plaintiff subsequently filed a Claim for Damage, Injury, or Death with the Postal Service. (Pl. Aff. at 4-5; Def. 3(g) P 8; Mindlin Aff. Ex. A (Claim for Damage, Injury, or Death).) Plaintiff claims that his car was vandalized during the time it was parked on Defendants' property. (Pl. Aff. at 5; Def. 3(g) P 8.) On March 4, 1993, the Postal Service denied Plaintiff's claim, stating it was not obligated to pay because there was no proof the damage was caused by the negligent or wrongful act or omission of one of its employees. (Def. 3(g) P 14.) Plaintiff subsequently filed the present action in federal district court under the FTCA, claiming that the Defendants are liable for the damages to his car. (Pl. Aff. at 6.)
A. Summary Judgment Standards
Pursuant to Fed.R.Civ.P. 56(c), summary judgment may be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A court must view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "However, where the nonmoving party bears the burden of proof as to a particular issue, the moving party may satisfy his burden under Rule 56 by demonstrating an absence of evidence to support an essential element of the nonmoving party's claim." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). "Where the moving party has attempted to demonstrate that the nonmoving party's evidence is insufficient as a matter of law to establish his claim, the burden shifts to the nonmoving party to come forward with persuasive evidence that his claim is not 'implausible.' The question then becomes, is there sufficient evidence to reasonably expect that a jury could return a verdict in favor of the nonmoving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988).
B. Governing Law
Plaintiff sues under the FTCA, 28 U.S.C. § 1346. "With respect to tort claims as to which the United States has waived its sovereign immunity, the FTCA requires the court to apply the substantive law of the place where the event occurred." Castro v. U.S., 34 F.3d 106, 110 (2d Cir. 1994); 28 U.S.C. § 1346(b). Thus, New York substantive law applies to Plaintiff's claim.
C. Plaintiff's Claim
The parties briefing this motion focus primarily on the presence or absence of a bailment, and whether Plaintiff can marshal enough evidence to survive a motion for summary judgment as to negligence. Whether a bailment exists, however, is irrelevant for the purposes of this motion, because even presuming the existence of a bailment, Plaintiff's claim cannot survive. Hence, for the purposes of this motion only, the Court will assume the presence of a bailment.
Once a bailment has been established, and loss or damage to stored goods proven, the law places a burden on the bailee to "come forward and explain the circumstances of the loss or damage to the bailed goods upon pain of being held liable for negligence. If the [bailee] does provide an explanation for the loss or damage, the plaintiff then must prove that the [bailee] was at fault if he is to recover." I.C.C. Metals, Inc. v. Municipal Warehouse Co., 50 N.Y.2d 657, 431 N.Y.S.2d 372, 378, 409 N.E.2d 849 (N.Y. 1980) (citations omitted); see also Singer Co. v. Stott & Davis Motor Express, Inc., 79 A.D.2d 227, 436 N.Y.S.2d 508, 510-11 (N.Y. App. Div. 4th Dep't 1981). Here, the parties do not dispute the circumstances causing the damage to Plaintiff's vehicle: someone, whether a trespasser or someone lawfully upon the property of the Defendants, placed potatoes into Plaintiff's tailpipe. This explanation for the damage satisfies Defendants' burden. I.C.C. Metals, 431 N.Y.S.2d at 377.
Because Defendants have met their burden of explaining what happened to Plaintiff's car, the onus rests upon the Plaintiff to prove that the damage to his car resulted from Defendants' negligence. Id. at 378. As evidence of negligence, the Plaintiff offers only the following theory on use (or nonuse) of surveillance cameras around the postal service facility:
The Postal Service was negligent because if the person who was manning the desk in the main control room was doing their job, they would have seen the persons responsible for the vandalism done to my automobile. Then, the person would have called the Postal police or other local Authorities to apprehend the perpetrators. Once the Postal Service assumed the duties ( ie ), [sic] the installation of surveillance cameras to monitor and protect postal and private vehicles parked in designated areas occupied by postal and other vehicles, that duty must be performed in a non negligent [sic] manner.
(Pl.'s Aff. Opp. Mot. Summ. J. at 1.)
This theory, however, fails to meet the affirmative burden of proof that rests upon the Plaintiff to "demonstrate that the damage to [the bailed property] was due to the failure of defendant to exercise ordinary and reasonable care to safeguard [the property] . . . ." Feuer Hide and Skin Co. v. Kilmer, 81 A.D.2d 948, 439 N.Y.S.2d 704, 705 (N.Y. Sup.Ct. 1981); see also Voorhis v. Consolidated Rail Corp., 60 N.Y.2d 878, 470 N.Y.S.2d 364, 458 N.E.2d 823 ("The burden of proof, and the burden of going forward, once a theft has been established, rests upon plaintiff bailor . . . ."). Proof that the damage occurred by vandalism, without more, does not suffice to establish the absence of reasonable care. See Feuer Hide and Skin, 439 N.Y.S.2d at 705. Accordingly, because Plaintiff has made no showing that Defendants failed to exercise ordinary and reasonable care in protecting his automobile,
other than the mere fact of the vandalism and the presence of surveillance cameras on the Defendants' property, he cannot survive this motion for summary judgment. On these facts, evidence of the mere presence of surveillance cameras would not allow a reasonable jury to find negligence on the part of the Defendants.
Furthermore, negligence on the part of the Defendants appears almost precluded on the basis of the factual record. Because of the surreptitious nature of the vandalism complained of here (someone sneaking up behind a car and inserting four potatoes into Plaintiff's tailpipes), and the fact that someone could -- depending on the location of the security cameras in relation to Plaintiff's parked car and, indeed, to its tail pipes -- elude detection while vandalizing the vehicle, the Court cannot presume negligence, as the Plaintiff would have us do. See Pl. Aff. in Opposition of Sep. 29, 1994 ("The Postal Service was negligent because if the person who was manning the desk in the main control room was doing their job, they would have seen the persons responsible for the vandalism done to my automobile.") Plaintiff's allegation is not self-proving, and the mere statement that the VMF "had surveillance cameras mounted throughout the facility" fails to carry the Plaintiff's burden. Accordingly, Defendants' motion for summary judgment is granted.
For the reasons stated above, Defendants' motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment in favor of the Defendants and close the case.
DATED: New York, New York
December 1, 1995
DEBORAH A. BATTS