The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
This negligence action is brought by plaintiff Karla McAdams ("McAdams") against defendant United States of America (the "Government") under the Federal Tort Claims Act ("FTCA" or "Act") to recover damages for injuries she sustained as a result of a slip and fall in front of the United States Post Office ("Post Office") in Roscoe, New York, on the morning of February 19, 2003.
A bench trial was held on May 1 and 2, 2006. This Opinion and Order sets forth the Court's post-trial findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. For the reasons that follow, judgment shall be entered in favor of McAdams and against the Government in the amount of $30,000.
The Roscoe Post Office's official hours are 8 a.m. to 5 p.m. (Tr. 25).*fn1
Nonetheless, the practice at the Post Office is that the first employee to arrive opens the front door at approximately 7:30 a.m. to allow customers access to their post office boxes. (Id. at 22). On the morning of February 19, 2003, Sally Meola ("Sally"), a fourteen-year employee of the Post Office, was the person assigned this task since she was scheduled to begin work at 7 a.m. (Id. at 23, 25, 164). Sally actually arrived at the Post Office at approximately 5:30 a.m., by which time there were approximately one and one-half to two inches of snow on the ground. (Id. at 166, 168). She proceeded to salt and shovel the sidewalk around the Post Office over the next forty-five minutes or so. (Id. at 166-67).
Sally's husband, James Meola ("James"), had an oral agreement with the Roscoe Postmaster pursuant to which he was paid $40 to plow the Post Office parking lot whenever it snowed. (Id. at 64, 75-76). The prior Postmaster also evidently had entered into an agreement to pay Sally's son $20 to shovel the sidewalk outside the Post Office on his way to school, but it is unclear whether it is Sally's son or James who is paid by the current Postmaster, Robert DelGaizo ("DelGaizo"), to perform this work. (Id. at 76, 178-79). In any event, it is not disputed that it was Sally -- not her son or James -- who shoveled the sidewalk on the morning of February 19, 2003, and that none of the Meolas received any payment as a result. (Id. at 63, 65, 166, 186-87).
The evidence further establishes that both Sally and other postal employees would periodically shovel and salt the sidewalk during their working hours. (Id. at 179-81). Additionally, at least one of the other postal employees, Jim Bowers ("Bowers"), who is a rural carrier, would shovel and salt the sidewalk if he arrived at the Post Office before anyone else. (Id. at 75, 184-85). For these reasons, it is clear that when she was shoveling the sidewalk, Sally clearly was performing a duty assigned to employees of the Post Office.
McAdams is a Roscoe resident. (Id. at 106). On the morning of February 19, 2003, she arrived at the Post Office at approximately 7:55 a.m., to retrieve her mail from her post office box. (Id. at 106-07). She parked her car in the street, as she generally did, alighted, and then walked around her car to the Post Office sidewalk. (Id. at 107-08). In doing so, she ignored a sign which read, "PLEASE USE CUSTOMER PARKING LOT." (Id. at 86; J. Exs. 1-B, 1-D). That sign was mounted on the front of the Post Office because it was dangerous for postal customers to park on the side of what was "basically a highway" when visiting the Post Office. (Tr. 86).
Once on the sidewalk, McAdams slipped on something that felt like "smooth ice" and fell on her back. (Id. at 108-09). McAdams did not see any ice on the sidewalk as she was not looking down at the time of her fall. (Id. at 131-32). After her fall, McAdams felt excruciating pain in her right ankle, which was turned in an unnatural position. (Id. at 109, 116).
While McAdams was on the ground, an unidentified woman approached her to ask her if she needed help. (Id. at 111-12). After the woman entered the Post Office, two men came outside and carried McAdams inside, where they placed her in a chair and elevated her foot. (Id. at 112-13). McAdams then spoke to Sally, whom she knew. She told Sally that she needed to call her employer. (Id. at 113-14).
Shortly after she was brought into the Post Office, an ambulance arrived and took McAdams to the emergency room at Catskill Regional Medical Center. (Id. at 114-15, 236; Pl.'s Ex. 30). Even before the ambulance arrived, Sally went outside the Post Office to take photographs.*fn2 (Id. at 172-73). One of the photographs of the sidewalk where McAdams fell depicts an area which is darker than the rest of the sidewalk. (See J. Ex. 5). That photograph also depicts some bushes and a man standing on the sidewalk. I find that the darker area reflects the presence of ice, rather than an accumulation of rock salt, or a shadow caused by the bushes on the side of the Post Office or the man standing nearby, as the Government's witnesses sought to suggest.*fn3
In finding that the area was ice, not a shadow, I reject the testimony of both Sally and DelGaizo that there could not have been any ice on the sidewalk because they inspected the sidewalk shortly after McAdams' fall and did not observe any ice. (Tr. 55, 173-74). First, with respect to DelGaizo, his testimony that he took the accident scene photographs, which he later rescinded, establishes that his recollection of the day in question was far from perfect. Second, Sally testified that on the day of the accident, she was not aware of the exact location of McAdams' fall. (Id. at 171-72). If so, she may not have been looking in the right place.*fn4 Additionally, because she had shoveled the walk that morning, she had an interest in finding that there was no ice there following the accident.
C. Injuries and Medical Treatment
At the hospital, McAdams initially was examined by an emergency room doctor who ordered x-rays. (Id. at 238-39). Those x-rays, in turn, disclosed a fracture dislocation of McAdams' right ankle. (Id.). McAdams then was examined by Dr. Charles Peralo ("Dr. Peralo"), an orthopedist, who found that she had sustained a number of injuries as a result of her fall on the ice, including a dislocation of the joint of her right ankle, fractures to her right tibia, and a significant fracture to the right lateral fibula bone.
(Id. at 234, 239-40, 257). Dr. Peralo performed a closed reduction.*fn5 (Id. at 240). Once he was satisfied with the fracture's alignment, as confirmed by x-rays, Dr. Peralo placed a hard cast on McAdams' lower right leg from her knee to the base of her toes to hold in place and maintain the alignment of the fracture. (Id. at 117, 241). McAdams remained in that cast until April 11, 2003, a period of a little less than two months. (J. Ex. 17). McAdams was given crutches in the emergency room and was instructed not to put any weight on the fracture until it was fully healed. (Id. at 243; J. Ex. 12).
While she was in a cast, and thereafter, McAdams made a series of visits to Dr. Peralo at his orthopedic office. (Tr. 242-43, 246, 249; J. Exs. 13-18). Although Dr. Peralo had mentioned surgery during the emergency room procedure as an option if the alignment of the fracture changed, McAdams in fact achieved an adequate alignment with no subluxation of the ankle joint.*fn6 (Tr. 241-42, 244-46; J. Exs. 11, 13--17). Accordingly, Dr. Peralo never recommended surgery. (Tr. 242, 244-45, 260).
On May 9, 2003, Dr. Peralo determined that McAdams' fracture was fully healed, and on June 6, 2003, he discharged her from his care, finding that she had good range of motion and no ...