The opinion of the court was delivered by: Lindsay, Magistrate Judge
The plaintiff, Lillie Weston ("Weston"), commenced this action against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. ("FTCA"). The plaintiff claims that she was injured as a result of the defendant's negligence in the maintenance of its post office located in Mineola, New York. Modified Joint Pretrial Order at 2. Specifically, the plaintiff asserts that the defendant failed to keep the post office in good repair and/or a safe condition by permitting a portion of the pavement in front of the post office to remain cracked and broken despite notice of the defect. Id. The defendant denies that there was any defective condition on the premises that caused the injuries for which Ms. Weston is seeking compensation.
Id. The government asserts that any injuries sustained by the plaintiff were the result of her own negligence when she decided to sit on a ledge. Id.
A "Notice, Consent, and Order of Reference for the Exercise of Jurisdiction by a United States Magistrate Judge" was signed by both parties and approved by District Judge Platt on January 18, 2007. Accordingly, this matter was tried before the undersigned non-jury fortwodays on June 12 and 13, 2007. Based on the evidence and the arguments presented, the court makes the following findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52.
The plaintiff, Lillie Weston, is a seventy-four year old woman, who currently resides in a nursing home in Woodbury, New York. 6/12/07 Tr. at 20. On December 1, 2001, the date of the incident, Weston woke up at 9:00 a.m., had a breakfast consisting of cereal, juice, and a banana, and took Amaryl for her diabetes and medication for hypertension. Id. at 26.At 11:00 a.m., Weston was taken by bus service to the Mineola Post Officewhere she took care of some postal business. Id. at 26-27.
After completing her postal business, Weston exited the building and claims to have walked down the steps located to the far right of the plaza. Id. at 31; Ex. A-2.*fn1 Weston further testified that after walking for about five feet, with the assistance of a cane, she caught her foot in a piece of broken pavement and fell. Id. at 31; Ex. A-1. Weston described her fall as heavy and very painful, but acknowledged that she did not hit her head. Id. at 32-33, 77-79.
After struggling for several minutes to get up from the pavement, Weston stated that despite the pain she was in, and despite there being a nearby bench and ledge, she walked back up the stairs, across the front entrance of the post office to the opposite side of the plaza where she sat on a ledge to regain her composure. Id. at 32-33. She did not seek assistance after falling. Id. at 85. Weston sat on the ledge for approximately fifteen minutes and then fell off the ledge experiencing what has been described by both parties as a "syncopic episode", or a brief loss of consciousness. Id. at 35-36;Ex. A-1, A-2 and D-8.
Following her fall from the ledge, Weston was taken by ambulance to Winthrop University Hospital ("Winthrop") where she was examined in the emergency room. Ex. F. According to the "Adult Triage Assessment Sheet" for the Emergency Department at Winthrop, Weston was seen at 1:50 p.m. Ex. F-4.She stated to the triage nurse that she had "'blacked out' just sitting. . . ." Id. Weston reported taking medication for high blood pressure and insulin. Id. Weston was next seen in the emergency room at 2:30 p.m. Ex. F-3. Weston's account of the incident was recorded in the Emergency Department Record as follows: fell from fence she was sitting on - in park Pt was dizzy, fall unknown loc[,] Pt does not know what happened . . . .
Id. The hospital performed numerous tests including x-rays of her chest and spine, CAT scans of her head, orbits and cervical spine, and blood tests.Ex.F-7. According to the lab results, Weston's glucose in the emergency room was 171. Ex. F-3. Weston was found to have sustained numerous injuries including, among other things, fractured thoracic vertebrae. Ex. F. Weston was admitted to the hospital with a diagnosis of syncope and diplopia or double vision. 6/12/07 Tr. at 234; Ex. F-3. On December 3, 2001, two days after she had been admitted, Weston was seen by a pulmonary doctor. Ex. F-1. In his consultation notes, Dr. Mattov recorded Weston's account of the incident:
68 yr. old [woman] . . . was admitted on 12-01, after she had an episode of syncope. As per the [patient], on Saturday after finishing her work in the post office she felt "exhausted." Decided to sit down for a few minutes. After about 1/2 an hour when she 'stood up' she suddenly 'blacked out' within seconds. The [patient] denies preceding chest pain, [shortness of breath] diaphoresis. On waking up, again, the [patient] denied such symptoms. No seizure activity [negative] loss of bowel control. Initial vitals on presentation to ER [temperature] 96.6, [pulse] 101, [respirations] 18, [blood pressure] 160/90. Blood sugar 182. . . .
Ex. F1. At no time during her stay in the hospital did Weston ever report that she had experienced a painful first fall leading up to her fall from the ledge. 6/12/07 Tr. at 144.
The hospital records reflect that doctors attempted to investigate the cause of Weston's syncope, but she refused to submit to several determinative tests including an electroencephalogram study, an electrophysiological test, a tilt table test, and an EKG. Id. at 235-236; Ex. F at USPS 189, 249. In fact, a consultation with a psychiatrist was ordered to determine whether she was competent to refuse the testing. Id. at 235-36; Ex. F at USPS 278. Thus, the cause of Weston's syncopic episode was not determined during her hospital stay.
At the hospital, Weston was unable to walk unless hospital attendants came for physical therapy. 6/12/07 Tr. at 38. Weston was also put in a hard back brace that extended from her shoulder to her hip and was given a cane. Id. at 39-40. After ten or fifteen days, the hard brace was changed to a soft brace. Id. at 40. She remained in the hospital for twenty-one days. Ex. F. Weston was discharged on December 20, 2001. Ex. F at USPS 136. The discharge summary again reiterates Weston's account of the events on December 1, 2001 as follows:
The patient is a resident of an adult living facility. She had a past medical history of diabetes mellitus, hypercholesterolemia, hypertension and the patient was coming into a post office on that date when she fell and hit the left side of her face and socket. She was light headed and weak. She had not eaten ...