Two days later, on March 19, 1993, plaintiff consulted an attorney with respect to her fall at the Post Office. At no time after the fall did plaintiff take any prescription pain medication. She took Tylenol. Plaintiff's attorney referred plaintiff to Dr. Mark M. Kesten, who examined the plaintiff on March 25, 1993. Plaintiff's attorney also referred plaintiff to Dr. Harry Citronenbaum at Central Medical Rehabilitation Services P.C. Dr. Lock at Central Medical Rehabilitation Services P.C. examined the plaintiff on March 25, 1993, the same day she was examined by Dr. Kesten.
Lumbar and cervical electromyography ("EMG") tests were performed on plaintiff by Dr. St. Hill at Central Medical Rehabilitation Services P.C. on May 11, 1993. The lumbar EMG showed normal latencies and velocities. The cervical EMG showed normal latencies, velocities and F-waves, except the right median nerve had slightly increased latencies. MRIs were recommended, but were not performed. A cat-scan was scheduled, but was not performed. Follow-up x-rays were scheduled, but were not taken.
Plaintiff had further appointments with Dr. Kesten on the following dates: April 8, April 29, May 6 and May 13, 1993. Plaintiff did not see Dr. Kesten after May 13, 1993.
Plaintiff had further appointments with Central Medical Rehabilitation Services P.C. on the following dates: April 2, April 6, April 24, April 30, May 20 and June 3, 1993. Plaintiff did not go to Central Medical Rehabilitation Services P.C. for treatment after June 3, 1993. Plaintiff did not seek or receive any medical services or physical therapy with respect to her alleged injuries after June 3, 1993.
Plaintiff returned to work approximately four weeks after her fall and did not lose any regular wages as a result of her fall.
In all, four witnesses testified at trial. Plaintiff was the only witness on her side. Defendant called three postal workers, including Allen Stern, the then Branch Manager at the Kingsbridge station. Unfortunately, the recollections of all four were seriously flawed as to the specific events of the day in question. Plaintiff testified that "I just don't recall seeing the sign that day." (Tr. 22). She didn't remember either way whether the caution sign was present or absent, although the parties stipulated in the Joint Pretrial Order to its being present (para. 7). Further she testified that, by the time she left school with her colleague, just before arriving at the Post Office "it was pretty clear, it cleared up. It wasn't raining." (Tr. 17). This is contradicted by the stipulated fact in paragraph one of the Joint Pretrial Order, and the official Weather Bureau Report for that day, which is Government Exhibit B, which showed that it snowed and/or rained all day.
The three postal workers were unable to remember the day in question at all. However, all three of them, Cynthia Gonzalez (Tr. 5), Maryanne Wright (Tr. 64) and Mr. Stern (Tr. 142) testified that it was Standard Operating Procedure on rainy and snowy days to have the customer are floor mopped. Mr. Stern testified that it was customary to have it mopped every half hour on bad weather days. The Court accepted their testimony under Fed. R. Ev. 406 and found it credible.
There was no testimony from any Doctor.
Conclusions of Law
In a FTCA case, Government liability for negligence is determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). See Molzof v. United States, 502 U.S. 301, 112 S. Ct. 711, 714, 116 L. Ed. 2d 731 (1992); Hess, Administrator v. United States, 361 U.S. 314, 317-18, 4 L. Ed. 2d 305, 80 S. Ct. 341 (1960); Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988). Thus, New York law applies. In New York, negligence is conduct below that of a reasonably prudent person under similar circumstances judged at the time of the conduct at issue. Paulison v. Suffolk County, 775 F. Supp. 50, 53 (E.D.N.Y. 1991).
Plaintiff must prove by a preponderance of the evidence that: (1) the Government owed a duty to her; (2) the Government beached that duty by its negligent conduct; and (3) as a result of that beach, plaintiff suffered an injury. Paulison, 775 F. Supp. at 53; Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 441 N.Y.S.2d 644, 648 (1981).
The rule is that "the owner of a store must take reasonable care that his customers shall not be exposed to danger through conditions in the store or at the entrance which he invites the public to us." Miller v. Gimbel Bros., Inc., 262 N.Y. 107, 108-09, 186 N.E. 410 (1933). But the storeowner "cannot prevent some water and mud being brought into an entranceway on a rainy day." Schultz v. United States, 203 F. Supp. 941, 943 (E.D.N.Y. 1962) (quoting Miller, 262 N.Y. 107, 186 N.E. 410) and "he is not responsible for injuries caused thereby unless it is shown that the construction of the store is inherently dangerous or that he failed to use care to remedy conditions which had become dangerous . . . ." Schultz, 203 F. Supp. at 943. For our purposes, the Post Office is a store.
There is no contention by plaintiff that the Post Office was inherently dangerous, although admittedly the Government recognized a duty to warn postal customers of any slippery conditions of which the Government was aware, and to take reasonable precautions to cure any such known conditions. The plaintiff, however, has utterly failed in her obligation to prove, by a preponderance of the evidence, that the Government breached that duty.
The cases essentially are uniform which have considered the United States's liability under the FTCA in customers' slip-and-fall cases arising from injuries suffered when slipping on wet post office floors during or after a rainstorm. Even in cases where no sign was posted, no mats or runners were provided, and recommended mopping procedures were not followed, the courts nave repeatedly found that the Government did not breach a duty to postal customers because a proprietor's duty to warn does not extend to obvious dangers.
'Everybody knows that, when people are entering any building when it is raining, they will carry some moisture on their feet, which will render the floor near the door on the inside damp to some extent, and every one knows that a damp floor is likely to be a little more slippery than a dry floor.'
* * * *