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RAIMOND v. U.S.

United States District Court, W.D. New York


September 21, 2004.

JOSEPH V. RAIMOND and GAIL A. RAIMOND, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge

MEMORANDUM and ORDER*fn1

Plaintiffs filed this personal injury/Federal Tort Claims Act ("FTCA")*fn2 action on August 29, 2002. Plaintiffs allege that Joseph V. Raimond ("Raimond") slipped-and-fell at Veteran's Administration Hospital (the "Hospital"). The United States was substituted as defendant in place of the Hospital and of the Department of Veteran's Affairs. The United States filed a motion for summary judgment on January 12, 2004. This matter was argued and submitted on September 3, 2004.*fn3 For the reasons set forth below, the United States' motion for summary judgment will be granted in part and denied in part. Rule 56 (c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).*fn4

With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party."*fn5 Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law." Anderson, at 248.

  Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought."*fn6 Indeed, summary judgment is granted "begrudingly in negligence cases, which by their very nature tend to raise factual questions."*fn7 Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the nonmoving party are insufficient to defeat a well-grounded motion for summary judgment.*fn8

  Raimond fell on snow/ice on the roadway adjacent to the Hospital's outpatient clinic entrance located at 3495 Bailey Avenue, Buffalo, N.Y. on December 25, 2001 at approximately 2:30 p.m. when he was taking his father home from the Hospital. Gail A. Raimond asserts a claim for loss of consortium resulting from her husband's injury. The United States argues that Mrs. Raimond's claim should be dismissed because she failed to submit an administrative tort claim before commencing this suit. This Court agrees. Pursuant to 28 U.S.C. § 2675(a), a FTCA claimant "shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." Although Raimond submitted a Standard Form 95 ("SF-95") to the Department of Veteran's Affairs, such does not satisfy the requirement that Mrs. Raimond file a SF-95 with respect to her loss of consortium claim.*fn9 Indeed, although the SF-95 filed by Raimond contained Mrs. Raimond's name, it did not contain, inter alia, her signature or date of birth — information necessary for Raimond's SF-95 to have been submitted on behalf of Mrs. Raimond as well.*fn10 Accordingly, the United States' motion for summary judgment will be granted in part and Mrs. Raimond's claim will be dismissed for lack of subject matter jurisdiction.

  This Court will now address Mr. Raimond's claim. As the Court of Appeals has noted, "[t]he liability of the federal government under the FTCA is generally determined by state law."*fn11 Consequently, New York negligence law applies. A central issue is whether there was a storm in progress when Raimond fell.*fn12 This Court, however, finds that the United States may not avail itself of the storm in progress defense and that several genuine issues of material fact exist, thus requiring this Court to deny the United States' motion for summary judgment to the extent that it seeks to dismiss Raimond's claims.*fn13 First, the United States' expert based his conclusions on climatological conditions at the Buffalo-Niagara International Airport (the "Airport"), which is between three and five miles from the Hospital.*fn14 The United States' expert merely asserted that the weather data from the Airport "is highly representative of the conditions at the accident site."*fn15 Climatological conditions, however, may vary from one locale to another situated three to five miles away. Consequently, the United States' expert's report is insufficient to demonstrate the weather conditions at the Hospital when Raimond fell.*fn16 Accordingly, there is a genuine issue of material fact whether there was a storm in progress at the Hospital when Raimond fell.

  Second, even assuming arguendo that the United States may rely on climatological data from the Airport to establish weather conditions at the Hospital, Raimond rebutted such where he testified at his deposition that there was no snow on his car when he retrieved it immediately preceding his fall — thus indicating that no snow had fallen at the Hospital from 11:00 a.m. until he retrieved his car at 2:30 p.m. and fell after loading his father into the car.*fn17 Consequently, the conflict between Raimond's testimony and the United States' expert report establishes a genuine issue of material fact that must be resolved by the trier of fact*fn18 — especially in light of the fact that summary judgment is "begrudgingly" granted in negligence actions.*fn19 The United States also contends that the existence of a lull after a storm does not eliminate the storm in progress defense. The United States cites Krutz for the proposition that "[e]ven if there was a lull or break in the storm around the time of plaintiff's accident, this does not establish that defendant[s] had a reasonable time after the cessation of the storm to correct hazardous snow or ice-related conditions."*fn20 What constitutes a reasonable time for the Hospital to clear the emergency entrance, however, is a genuine issue of material fact.*fn21 The case law cited by the United States is distinguishable and not necessarily instructive as to what constitutes a reasonable time to clear ice and snow from a hospital's emergency entrance. Accordingly, the United States has not established that it is entitled to the storm in progress defense and the "record calls for a determination by a trier of facts, not a rote application of a rule of law."*fn22

  Third, even assuming arguendo that there was a storm in progress, there is a genuine issue of material fact whether Raimond slipped on ice that had formed before the storm.*fn23 The United States asserts that the snow that fell on December 25, 2001 could not have melted because the temperature never rose above 32 degrees Fahrenheit that day. The temperature did, however, rise above 32 degrees Fahrenheit on December 24, 2001.*fn24 Consequently, there is a genuine issue of material fact as to whether (1) ice formed on December 24, 2001 and was not removed by the time that Raimond fell on December 25, 2001 and (2), for the reasons noted above, whether such failure was reasonable under the circumstances.*fn25

  Fourth, there is a genuine issue of material fact as to whether the Hospital had constructive notice of the ice on which Raimond fell because (1) as noted above, the ice must have formed on December 24, 2004 and (2) it was located at the Hospital entrance — an area that was the "most important" of the "priority snow removal areas" at the Hospital.*fn26 Given the priority nature of the emergency entranceway, the length of time that the ice upon which Raimond fell must have existed*fn27 and the relatively small area that comprises the emergency entrance and abutting roadway,*fn28 there is a genuine issue of material fact whether the Hospital "had constructive notice of the icy condition, i.e., whether that condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit [those] defendants to discover it and take corrective action."*fn29 Inasmuch as this Court has found there to be a genuine issue of material fact whether the Hospital had constructive notice of the icy condition at the emergency entrance, this Court need not address whether the Hospital could also be found liable on the theory that it either created or exacerbated the dangerous condition.*fn30 Furthermore, the cases cited by the United States in support of this contention are distinguishable.*fn31 Accordingly, it is hereby ORDERED that the defendant's motion for summary judgment is granted in part and denied in part, that Gail A. Raimond's claims are dismissed, that the defendant's motion for summary judgment is otherwise denied and that the parties shall appear before Part III of this Court on October 29, 2004 at 3:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.


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