The opinion of the court was delivered by: Mark D. Fox, Magistrate Judge
This action brought by Plaintiff Stephen Dunn, ("Dunn") seeks recovery, pursuant to the Federal Tort Claims Act , 28 U.S.C. § 1346(b), for separate injuries that he suffered in two accidents, a knee injury on September 7, 2001 and a back injury on June 5, 2002, both at building 795 on the U.S. Military Academy reservation at West Point. He attributes the accidents to the failure of government officials to correct cracks and defects in the floor of building 795. The parties consented to the trial of this matter before the undersigned pursuant to 28 U.S.C.§ 636(c). The following constitutes the Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). All findings have been prmised upon a fair preponderance of the credible evidence in the trial record, which includes the parties' factual stipulations.
Under the Federal Tort Claims Act the Governments's liability for negligence is determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Because the United States Military Academy at West Point is located in New York State the law of New York concerning workplace premises liability governs the disposition of this case.
Plaintiff, a Navy veteran born on March 26, 1958, had been employed since 1999 at the motor pool at West Point. When he was injured, Plaintiff was working as a mechanic for Akima Corporation, the government contractor which operated the West Point motor pool.
On September 7, 2001, while at work in the motor pool, building 795, Plaintiff was pushing a steam cleaner out of the rear door of the building. The steam cleaner, on four (4) rubber tires, was approximately 3 or 4 feet long and 2 feet wide with a handle "sort of like a lawn mower" and oil burner and water hose attachments. Tr. 19.*fn1 As he was pushing the steam cleaner and talking with his supervisor, Don Greeno, Plaintiff stepped in a hole in the floor and injured his right knee. The defect in the floor was triangular in shape, two (2) or three (3) inches long and about one (1) inch deep as depicted at the top of photograph #2 in Ex. 16 and Ex. 14. The photographs evidence that the cracks had been filled in by Plaintiff in March 2002 after he had returned to work. The photographs accompany testimony which demonstrates Plaintiff's knowledge of the specific location of the crack. They have not been considered as evidence of a subsequent remedial measure. Tr.25.
The steam cleaner's size blocked Plaintiff's view of the floor area immediately in front of the machine so that Plaintiff was unable to see the defect in the floor. Tr. 21, 56-57. As he stepped in the hole or gap, Plaintiff's knee buckled and he felt severe pain. Greeno testified that the hole in the floor, which was 6 to 8 inches long, 3 or 4 inches wide and 11/2 to 2 inches deep, had been there for some time. Tr. 89. Greeno completed an accident report in which he described the hazard as "deep cracks in concrete." Tr.90; Ex. 3.
In light of the immediate sharp pain, the knee was immobilized, and Plaintiff was sent to an orthopedist, Dr. Harvey Siegel, for a consultation. Despite physical therapy on the knee, the pain continued. Surgery performed on the knee on February 21, 2002 disabled Plaintiff from work for several weeks. Tr. 28. Although his pain continued after the surgery, he was able to return to work and worked until the back injury on June 5, 2002. Tr. 43.
In June 2004 another surgery performed on the knee did not relieve his pain. Since the June 2004 operation he has had to wear a large brace on his leg to support the knee. The brace extends from his mid thigh to mid calf. He wears it all day, every day, except when he is sleeping. Tr. 44. In the early 1990s Plaintiff had a previous knee operation from which he states that he made a full recovery with no restrictions or limitations on his use of the knee. Tr. 42.
The second accident occurred on June 5, 2002 in the work bay on the west side of building 795. Plaintiff was sitting on a wheeled mechanic's stool (Ex. 17) to check the tires of a large truck. Tr. 32-34 As he sat on the stool and pushed it from one tire to another, the wheels caught in a crack in the floor. The stool suddenly stopped moving but plaintiff's body kept going so that he was thrown to the floor where he landed on his left hip. He had been using the stool to check tires in this manner for about a year and a half prior to the accident. Of the 7 or 8 mechanic's employed at the facility, at least 3 or 4 used similar stools, and none of them had been told by supervisors or West Point Officials not to use them because of the condition of the floor or for any other reason. Tr. 34-35, 83, 108-109.
Plaintiff 's Ex. 13, a photograph, depicts the crack in the floor which caught the wheel of the stool. A Zippo lighter was placed in the crack to provide a perspective as to the size of the defect. The lighter, which measures 11/2 inches wide by 21/4 deep and a 1/2 inch thick, fits loosely in the crack. Tr. 36-38, 70-71.
After the accident Plaintiff continued to work until June 12, 2002 when the increasing back pain caused him to return to Dr. Siegel for treatment. Tr.38. He received physical therapy until September 10, 2002 when back surgery was performed by Dr. Steven Jacobs. Tr.39. In 1988, Plaintiff had had a previous back surgery from which he made a complete recovery. Following the 1988 surgery, he was able to work and engage in recreational activities with no difficulty other than occasional aches, which were not so severe as to curtail his activities. Tr .41.
Plaintiff 's domestic partner, Dorcas Dwidor, who has resided with him since March 2001, testified that he had no physical restrictions prior to the September 2001 accident. He regularly played racket ball and volleyball, danced, did yard maintenance work, and participated in a bowling league. After the accident he was unable to participate in any of those activities. Tr.140-143. The knee surgery performed in February 2002 did not improve Plaintiff's ability to engage in those activities without pain, although he was able to return to work and did so until the June 5, 2002 accident.
Subsequent to the June 2002 accident and concomitant back surgery of September 2002, Plaintiff was unable to work or participate in any of the aforementioned activities. He is also unable to engage in sexual relations. Tr. 145-146. He wears the knee brace and complains of knee and back pain. Ms. Dwidor was also aware of a prior back injury in the 1980's which caused numbness in Plaintiff's right big toe, a condition that has continued to the present time. This injury had been the reason for his discharge from the navy. Tr.147. Plaintiff also told her that the only medication which he currently takes for back pain, aspirin, "reduces his pain to a bearable level." Tr.147-148.
The parties stipulated that the U.S. Government was and is the owner of building 795 at the United States Military Academy and is responsible for its maintenance. Tr.186. For the past twenty (20) years Donald Michaud has headed the agency charged with building maintenance and repair on the dates in question, the Utilities and Facilities Division of the Directorate of Housing and Public Works of the U.S. Military Academy. Tr. 151, 154.
Michaud was familiar with the condition of the floor of Building 795 on or about September 7, 2001, not from personal observation, but from reports and documents on file. It is undisputed that the floor had numerous cracks. Michaud said that the concrete was considered "dead". "That floor had been in that building for 50, 60, 70 years." Tr. 162. Since 1999 Plaintiff, who undoubtedly spent more time there than any of the other witnesses, had observed numerous cracks all over the place. Tr. 22. He estimated the work space area as 50 to 75 feet wide and 150 to 200 feet long. The cracks were concentrated in the center aisle, which ran from the south door to the north door and in the work bays where maintenance was done on the heavy vehicles. Facing south to north, the work bays were located on the left side of the area.
At his deposition, Eugene Zarzycki, chief of engineering resource management division of the directorate of housing and public works, explained the system for handling work orders pertinent to obtaining a repair at building 795. The specific details are not as germane as the seemingly titanic nature of the process that had to be followed to fix a crack in a concrete floor, a process which was apparently subject to complete nullification by the work management people, who had canceled several work orders and requests for repairs to that floor. Tr. 172. To Zarzycki's knowledge, premised on the documents he had reviewed, no repairs had been done to the floor prior to September 7, 2001. Tr. 163. Specifically, Work Order FA00503, ...