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HARPER v. UNITED STATES

September 6, 1996

ISOLEEN HARPER, Plaintiff, against UNITED STATES OF AMERICA, Defendant.


The opinion of the court was delivered by: GLASSER

 GLASSER, United States District Judge:

 SUMMARY

 Plaintiff brings this action under the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2671-80) for injuries sustained as a result of a slip and fall on a wet floor inside a post office.

 The defendant moves the court for summary judgment on the ground that the slip and fall occurred while it was raining outside, and that, under New York law, the Government had no duty to correct the wet floor condition until after the rainfall stopped.

 BACKGROUND

 For the purpose of this motion the following material facts are assigned to be true *fn1"

 On March 7, 1992, at approximately 1 p.m., Plaintiff Isoleen Harper ("Harper") slipped and fell on a wet floor inside the U.S. Postal Service Brevoort Station in Brooklyn, New York. Def. 3(g) State. PP1-2. It was railing outside at the time Harper fell, and it had been doing so during the hours preceding the plaintiff's fall, and during the evening of the previous day. Pl.'s Aff. in Opp. 2(g); Def. 3(g) State. PP1-2. At the time of Harper's fall, no floor coverings were laid inside the post office, and no signs warning of a slippery floor were posted. Pl.'s Aff. in Opp. P2(h). Harper injured her right arm and shoulder in the fall and required surgery. Pl.'s Aff. in Opp. P2(a). She filed this action on March 8, 1994, alleging negligence by the Government in permitting the floor surface to remain wet and slippery and seeking damages in the sum of $ 500,000. The Government moves to dismiss the complaint on the ground that it had no duty to wipe the wetness from the post office lobby until the rain stopped.

 DISCUSSION

 I. The Standard for Granting Summary Judgment

 Summary judgment is appropriate "if the pleadings [and] depositions... together with the affidavits ... show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A "moving party is 'entitled to judgment as a matter of law' [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Therefore, in response to a summary judgment motion, the nonmoving party must come forward with facts, and not merely doubts as to the veracity of the moving party's allegations: "Rule 56(e) requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to the interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324.

 In considering a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. In doing so, "the district court must draw all reasonable inferences and resolve all ambiguities in favor of the nonmoving party and grant summary judgment only if no reasonable trier of fact could find in favor of the nonmoving party." Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995)(citing Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991)).

 II. The Federal Tort Claims Act

 The Federal Tort Claims Act removes the sovereign immunity of the United States from suits in tort, and, with certain exceptions, renders the Government liable in tort as a private individual would be under like circumstances. Richards v. United States, 369 U.S. 1, 6, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1961). Under the Federal Tort Claims Act, actions brought against the United States "for money damages ...for personal injury...caused by the negligent or wrongful act or omission of any employee of the Government ... [shall be determined] in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § ...


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