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NISSEN v. U.S.
March 12, 2002
ALLAN NISSEN, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: David R. Homer, United States Magistrate Judge.
MEMORANDUM-DECISION AND ORDER
On April 1, 2000, plaintiff Allan Nissen ("Nissen") suffered a fracture
to his left patella when he fell in the public area of the United States
Post Office at Boiceville, New York.*fn1 Contending that his fall was
caused by the actions of a Postal Service employee, Nissen commenced this
action seeking monetary damages under the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 2671 et seq.*fn2 A bench trial was held on March
7, 2002. In accordance with Fed.R.Civ.P. 52, what follows constitutes
the Court's findings of fact and conclusions of law. For the reasons
stated below, judgment is granted to the United States.
On the morning of April 1, 2000, a Saturday, Nissen, then sixty-seven,
entered the Post Office in Boiceville, where he was a frequent customer,
to have a letter weighed for overseas delivery. The parties dispute
whether this occurred at approximately 8:30 a.m. or 10:30 a.m., but the
clear weight of the credible evidence establishes that the time was
approximately 8:30 a.m. As Nissen entered the public area of the Post
Office, he passed Joseph B. Stein, another Postal customer, as Stein
departed the counter area. Stein had just completed purchasing stamps at
the lone counter from Postal Service clerk Donna M. Calrow. Stein had
noted that Calrow
had a cold and that she had coughed "a couple times" while serving
Stein. Calrow had in fact missed work from Monday through Wednesday of
that week because of a cold. As they passed each other, Stein told
Nissen in reference to Calrow, "Watch out — she's going to get us
all sick." Stein then exited the Post Office.
Nissen, who is 6'1" tall, continued to the counter where he encountered
Calrow, who stands 5'1". The two faced each other over the counter and
were separated by approximately two feet. No one else was present in the
area. Although disputed by the parties, the clear weight of the credible
evidence establishes that Calrow then involuntarily coughed toward
Nissen, emitting sputum and without turning her head or covering her
mouth. As Nissen ducked away from the cough, his feet became entangled
and he fell to the floor landing on his left knee. Nissen laughed, said
that he had tripped over his own feet, completed his transaction and
walked out of the Post Office.
Medical treatment later that day revealed that the fall caused a
fracture of Nissen's left patella. Nissen's treatment required him to
wear a soft cast on his left leg for approximately six weeks and to walk
with crutches or a cane for several weeks. His normal activities were
also restricted. Nissen has enjoyed a near complete recovery, although
he continues to suffer periodic discomfort in his left knee and is unable
to engage in physical activities to the same extent as before the fall.
Nissen makes no claim for any economic loss but seeks compensatory
damages for the pain and suffering he contends resulted from the injury.
Nissen's sole claim asserts that the United States is liable for his
injury under the FTCA due to the negligence of Calrow, its employee, in
failing to cover her mouth or turn her head away from Nissen when she
coughed.*fn3 Under the FTCA, the United States may be found liable "only
if its actions would render it liable under relevant state law." Shade
v. Housing Auth. of City of New Haven, 251 F.3d 307, 314 (2d Cir. 2001).
The relevant state law here is that of New York. "Under New York law,
the elements of a negligence claim are: (i) a duty owed to the plaintiff
by the defendant; (ii) breach of that duty; and (iii) injury
substantially caused by that breach." Lombard v. Booz-Allen & Hamilton,
Inc., 280 F.3d 209, 214 (2d Cir. 2002) (citing Merino v. New York City
Transit Auth., 639 N.Y.S.2d 784, 787 (1st Dep't 1996) and Nathan W.
Drage, P.C. v. First Concord Sec., Ltd., 707 N.Y.S.2d 782, 787
Under New York law, a defendant in these circumstances owes a duty to
exercise reasonable care under the circumstances. See Michalski v. Home
Depot, Inc., 225 F.3d 113, 117 (2d Cir. 2000). Nissen contends that when
Calrow coughed, the duty to exercise reasonable care required that she
first cover her mouth and turn her head to avoid coughing on Nissen. The
United States contends that no such duty existed. Neither party has
cited any case, and independent research has revealed none, which
addresses the duty of an individual to protect others from the
foreseeable consequences of a cough. However, for two reasons, Nissen has
failed to demonstrate that a duty existed
for Calrow to cover her mouth or turn her head before coughing.
First, there was no evidence presented that Calrow's act of coughing
was volitional. The act of coughing may be either intentional, as when
clearing one's throat, or unintentional, as when suddenly stimulated by
an internal condition. Although the evidence established that Calrow was
suffering a cold and was coughing on the morning of April 1, 2000, there
is insufficient evidence to conclude that Calrow was sufficiently in
control of her coughing to be able to turn her head or cover her mouth
before she coughed as asserted by Nissen. In the absence of evidence of
volition, Calrow owed no duty to Nissen to turn her head or cover her
mouth before coughing. Second, the duty of Calrow and the United States
was limited "to reasonably foreseeable accidents." Robinson v.
Government of Malaysia, 269 F.3d 133, 145 (2d Cir. 2001) (citing Basso
v. Miller, 386 N.Y.S.2d 564, 568 (1976)). There is no evidence here that
Calrow could have foreseen that Nissen or anyone else would be caused to
fall as a result of Calrow's coughing. For this reason as well, Calrow
owed no duty to Nissen to turn her head or cover her mouth before
For the reasons stated above, it is hereby
ORDERED that judgment is granted to defendant United States ...
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