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July 8, 1997

HARRY BANKS, an infant by his Mother and Natural Guardian, ELLA BANKS and ELLA BANKS individually, Plaintiffs, against UNITED STATES OF AMERICA, Defendant.

The opinion of the court was delivered by: NEWMAN


 BERNARD NEWMAN, Senior Judge : *fn1"

 Ella and Harry Banks ("plaintiffs") bring this negligence action against the United States of America ("defendants") as a result of an accident occurring on United States Post Office property. Specifically, Harry Banks asserts that after he was invited onto post office property by a postal employee; that the employee negligently closed a gate which severed the tips of the ring and middle fingers of Harry Banks' right hand. Additionally, Ella Banks, Harry's mother, seeks recovery against defendant for the alleged current and future loss of services of plaintiff.

 Conversely, defendant maintains that no duty of care was violated, that the injuries were not proximately caused by a negligent act on its part; and that Harry had no permission to be on post office property. Moreover, defendant argues that should it be found to have acted negligently, plaintiffs' own negligence contributed to causing the injuries to Harry. Finally, defendant asserts that Harry was aware of and voluntarily assumed the risks of riding on the gate.

 The matter arises under the Federal Torts Claims Act and the court's jurisdiction is predicated upon 28 U.S.C. § 1346(b). Pursuant to the order of the court, the liability phase of this case was bifurcated as to any subsequent damages phase. See Order dated January 26, 1996 (Stanton, J.). Thus, the only issue presented to the court at this juncture is the liability of defendant for the claims alleged within the complaint. The case was tried to the court in a four day bench trial. In conformity with F.R.C.P. Rule 52(a), the following constitutes the court's findings of fact and conclusions of law with respect to liability.


 In its direct case, plaintiffs presented seven witnesses: Douglas Ingram, custodian for the United States Post Office's Newburgh Office during August 1993, Joseph Lee, police officer for the city of Newburg; Harry Banks, infant plaintiff in this action, Oscar Banks, Harry's brother *fn2" , Steven Burch, custodian for the United States Post Office's Newburgh Office during August 1993, James A. Cole, neighbor of the Banks family during the summer of 1993, and Dr. Joan Roessler, an expert regarding children's learning disabilities.

 Defendant presented seven witnesses: Frederick Sohr, safety specialist for the United States Post Office, Louis Banks, Harry's father, Ella Banks, co-plaintiff and mother of Harry, Laura Ciancio, Supervisor of Customer Service at the Newburg Post Office in 1993; Desiree Abbruscato, Postal Clerk at the Newburg Post Office; Gregory K. Tutelian, Postal Inspector for the United States Postal Service; Jacquelyn Walker, Supervisor of Customer Service at the Newburg Post Office.

 The parties moved 31 exhibits into evidence.


 Plaintiffs contend that on August 21, 1993, Harry Banks, along with his brother Oscar, were invited onto postal property by post office custodian Steven Burch to ride the gate while Burch was closing it. At the time, Harry was approximately 8 and one half years old and Oscar was seven and one half years old. Maintaining that inviting the children onto the property was Burch's usual course of conduct, plaintiffs claim that Harry and Oscar were allowed to climb up on the fence and ride it while Burch pushed it to a close. According to plaintiffs, at some point while Burch was pushing the gate closed, Harry's hand was caught under a roller and the tips of his right ring and middle fingers were cut off.

 Although plaintiffs concede that at other times different postal employees had told Harry that he was not permitted on postal property, plaintiffs suggest that such restrictions were negated by Burch and other employees who often invited Harry and Oscar to the parking area of the post-office where they would let them play and give them food. Plaintiffs also argue that because Harry is learning disabled, such mixed signals did not make him aware that he was not permitted to play on postal property.

 Plaintiffs conclude that because Burch allowed Harry to ride the gate at the time of the accident, the United States Postal Service negligently caused Harry's injury. Specifically they contend that Harry was not fully cognizant of the dangers he faced while playing on the fence and believed that he was permitted to ride on the gate while Burch closed it. Therefore, plaintiff states that Harry did not assume the risks of playing on the fence. Moreover, asserting that Burch invited Harry to ride the gate, plaintiffs reason that Harry was not comparatively negligent. Thus, plaintiffs conclude that defendant was guilty of negligence and liable to Harry for damages sustained, as well as, damages to Ella Banks for the loss of Harry's services.

 Defendant responds that Burch acted with reasonable care and was not negligent. In making this claim, defendant denies that Burch invited Harry and Oscar to ride the gate. In fact, defendant claims that Burch had warned the children to stay away from the gate and observed them walking away from the gate when he began to close the gate. According to defendant, Harry and Oscar climbed on the fence while Burch's back was turned and that is when Harry subsequently was hurt. Defendant points out that Harry had been repeatedly warned by postal employees that he was not permitted to play on postal property and that he was even punished by his parents for playing on the postal property. Alternatively, defendant opines that even if negligence is found, Harry contributed to his own injury. Finally, defendant argues that Ella Banks is precluded from recovering on her derivative claim because she failed to act reasonably in the care of Harry prior to the accident.


 On August 21, 1993, Harry Banks was 8 years, 7 months, and 3 weeks old. During the summer of 1993, Harry Banks lived with his parents and brother at 77 Chambers Street in Newburg New York. Across from his house, located at 217 Liberty Street, is a United States Post Office. The rear of the post office, which includes a loading dock area and a parking lot, faces the Banks' house on Chambers Street. The loading area is surrounded by a perimeter chain link fence with large openings secured by gates which roll closed. The fence measures 7 feet 5 inches in height and is opened and closed by sliding the gate along metal rollers which are affixed to metal posts.

 Prior to the accident, there is no disagreement that Harry Banks was often found on the post office property. There is a dispute of fact as to whether the post office, through its employees, invited Harry onto the property. While plaintiffs maintain that postal employee Steven Burch often invited Harry onto the premises and allowed him to ride the gate, defendant contends that postal employees told Harry on several instances that he was not allowed on postal property. In resolving this dispute of fact, the court finds that Harry was often invited onto postal property. This finding is supported by the testimony of postal employees, neighbors, and Harry himself. There is no doubt that several of the postal employees did order Harry to leave the area on a number of occasions, however, this does not change the fact that other workers permitted Harry to play on postal property - as allegedly was the situation at the time of the accident.

 Perhaps the most compelling testimony on this issue was proffered by Douglas Ingram, a custodian at the Post Office. Ingram stated that during the summer of 1993, he often saw Harry and other children playing on post office property. Harry and the other children were climbing on fences, rolling carts down slopes on the hill, and playing ball. In fact, Ingram told the court that on several occasions Harry climbed on the gate when Ingram was about to close it. Ingram explained that because of these occurrences he was on the lookout for children playing on the gate before he closed it. Additionally, Ingram saw Harry and his brother Oscar climbing on the gate in the presence of other postal employees. While Ingram explained to the court that he usually told Harry that he should not be playing on the postal property, there were times that Ingram said nothing. Of ...

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