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Silverman v. United States

March 28, 2008

KENNETH P. SILVERMAN, AS TRUSTEE IN BANKRUPTCY FOR HOWARD D. GOLDEN, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Hon. E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION, ORDER AND JUDGMENT

The plaintiff, Howard D. Golden ("Golden"), brings this action for negligence, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 et seq. A bench trial was held before the undersigned on September 25 and 26, 2007.

The plaintiff seeks to recover damages for a slip and fall that he alleges occurred on the property of the defendant, the United States of America (the "United States" or the "Government"). Specifically, plaintiff alleges that on February 19, 2003, he fell while walking on the sidewalk in front of the United States Post Office located at 12 Washington Avenue in West Sayville, New York as a result of a dangerous condition due to the negligence of the defendant. Plaintiff further alleges that, as a result of this fall, he sustained severe injuries, including fractures of two of the bones in his leg, requiring corrective surgery.

The Government denies any liability, asserting that plaintiff did not fall on property belonging to the United States. The Government further asserts that it did not have actual or constructive knowledge of the existence of a dangerous condition on the sidewalk in front of the post office.

FINDINGS OF FACT

I. Introduction

In 2003, plaintiff was employed as the "acting administrator" for Sayville Manor, also known as the Sayville Adult Home. (Tr. 4.)*fn1 In the course of his duties at Sayville Manor, plaintiff routinely visited the United States Post Office, located on Washington Avenue in West Sayville (referred to as the "West Sayville Post Office"), for the purpose of retrieving the mail for Savyille Manor as well as the individuals who resided there. (Tr. 6, 39.)

On February 19, 2003, at approximately 8:30 or 8:45 a.m., plaintiff suffered an injury when he slipped and fell on ice in the vicinity of the West Sayville Post Office. (Tr. 4.) There was no snow or other precipitation on February 19, 2003. (Tr. 5; Pl. Ex. 1.) However, a snowfall occurred on February 17, 2003, two days prior to plaintiff's accident, with the precipitation ending at approximately 8:00 p.m. (Tr. 5, 68; Pl. Ex. 1.)

Window services at the West Sayville Post Office then began at 8:00 a.m. (Tr. 60, 144-45.) However, the lobby area, where the post office boxes are located, opened at approximately 5:30 or 6:00 a.m. (Tr. 60, 145.) Accordingly, the first postal employee typically arrived at the West Sayville Post Office at approximately 5:30 or 5:45 a.m. (Tr. 60.) There were approximately twelve postal employees working at the West Sayville Post Office in 2003. (Tr. 60.)

The parking area in front of the West Sayville Post Office consists of eight or nine perpendicular parking spots. (Tr. 7, 42.) When individuals park in front of the West Sayville Post Office, they typically park their cars with the front end hanging over the sidewalk directly in front of the post office. (Tr. 8, 157.) There is no curb separating the concrete sidewalk from the street and therefore the street and the sidewalk are essentially the same level.*fn2 (Tr. 42, 62, 80, 132.) Nor are there any lines indicating where the parking spaces are or differentiating the parking lot from the street on which it is located - Washington Avenue. (Tr. 62.) Plaintiff's Exhibit 3 illustrates the typical parking arrangement at the West Sayville Post Office. (Pl. Ex. 3.)

Plaintiff received Worker's Compensation benefits for his medical expenses and did not incur any out-of-pocket medical expenses other than a co-pay. (Tr. 28-29.) Plaintiff also received a payment of approximately $14,000 to $15,000 from Worker's Compensation approximately one year after his accident for time lost from work. (Tr. 31-32.) As a result, there is currently a Worker's Compensation lien against plaintiff, held by the New York State Insurance Fund, in the sum of $30,914.80. (Pl. Ex. 20.)

II. Testimony

A. Howard Golden

Plaintiff testified that when he arrived at the West Savyille Post Office on February 19, 2003, he parked his car approximately two or three cars to the left of the entrance to the post office. (Tr. 8-9.) Plaintiff stated that he then exited his vehicle and stepped onto the sidewalk in front of the West Savyille Post Office. (Tr. 9.) According to plaintiff, as he turned right toward the entrance of the post office, his left leg "went out from under [him]" and he "went down on the ground." (Tr. 9.) Plaintiff did not see what caused him to fall. (Tr. 10.) However, once he was on the ground, plaintiff saw ice on the sidewalk that he believes led to his fall. (Tr. 10.) There was no testimony offered by plaintiff as to the size or height of the ice. Plaintiff described the ice as "very glassy, [with] some opaque parts." (Tr. 10.) Plaintiff did not see any ice prior to stepping on the sidewalk. (Tr. 43-44.)

Plaintiff testified that he remained on the ground for approximately "a couple of seconds" after his fall. (Tr. 11.) When plaintiff attempted to stand up again, he experienced "significant" pain throughout his entire body, concentrated mostly in his left leg and left hip. (Tr. 11.) Plaintiff testified that he was unable to place weight on his left leg and fell to the ground again. (Tr. 11.)

Plaintiff stated that he then crawled to the side of his vehicle and attempted to use the door handle to assist in standing up, but was unsuccessful at doing so. (Tr. 11.) According to plaintiff, while he was lying on the ground, other automobiles began to approach and park near plaintiff's vehicle. (Tr. 11.) Plaintiff testified that he began to crawl on his stomach toward the rear of his vehicle so that he would be visible to those individuals attempting to park their cars in front of the West Sayville Post Office.*fn3 (Tr. 11-12.) Plaintiff further testified that, at that point, an unknown male observed plaintiff lying on the ground and instructed him to remain where he was and informed him that 911 had been notified. (Tr. 12.) An unknown woman joined the man and the two individuals stood in front of where plaintiff was lying on the ground to prevent him from being hit by any oncoming automobiles. (Tr. 12.)

Less than ten minutes later, an ambulance and a police officer arrived. (Tr. 12-13.) The police officer filled out a police report and the paramedics transported plaintiff, via ambulance, to Southside Hospital in Bay Shore, New York. (Tr. 13, 47; Pl. Ex. 5.) Plaintiff testified that he did not enter the West Sayville Post Office at any time on February 19, 2003. (Tr. 12.) Nor did he see any of the postal employees that day. (Tr. 13.) Plaintiff further testified that he did not see any salt or sand or anything of that nature on the sidewalk in front of the West Sayville Post Office on February 19, 2003. (Tr. 28.)

After arriving at Southside Hospital, plaintiff was provided with pain medication and x-rays were taken. (Tr. 14-15.) Plaintiff was seen by an orthopedist, Dr. Dineen, who informed him that he had fractured his left tibia as well as his left knee. (Tr. 15.) Dr. Dineen advised plaintiff of his options of surgery versus casting the leg and ultimately placed a hard cast on plaintiff's left leg, which extended from his thigh to his ankle. (Tr. 15-16, 47.) Plaintiff was released from Southside Hospital that same day and spent the night at Sayville Manor, the adult home where he was employed. (Tr. 16.)

Plaintiff returned home the following day where he received physical therapy and home health aid services. (Tr. 16-17.) Plaintiff used a wheelchair during this time and returned to work approximately ten days after his accident, at which time Sayville Manor arranged for plaintiff to have an aide to assist him as well as a wheelchair for his use. (Tr. 16-17, 22, 30.) Plaintiff testified that he experienced a rise in his blood pressure during this time and that there was also "an issue of bleeding."*fn4 (Tr. 17.)

Approximately one week after being discharged from the hospital, plaintiff was again seen by Dr. Dineen. (Tr. 17.) Additional x-rays were taken and Dr. Dineen advised plaintiff to continue wearing the hard cast, continue with physical therapy and consider the possibility of surgery to correct the fractures. (Tr. 17.) Plaintiff testified that he was also advised by the physical therapist during this time that he had a "dropped foot" and that "the muscles were trimmed and weak." (Tr. 17.) Plaintiff wore the hard cast on his left leg for approximately one month, during which he was not ambulatory. (Tr. 18.)

Plaintiff testified that he was next examined by Dr. Nirmal Tejwani at New York University Medial Center, who advised that plaintiff undergo surgery to repair his leg. (Tr. 18, 48.) Approximately ten days after his accident, in March 2003, Dr. Tejwani performed surgery on plaintiff's left leg, placing a titanium rod just under plaintiff's knee as well as two pins in his ankle, and replaced the first cast with another full leg cast.*fn5 (Tr. 19, 21, 27, 48.) Plaintiff remained in the hospital overnight following his surgery and wore the second full cast for "a couple of weeks" before it was reduced to a third, smaller cast that extended from his ankle to his knee. (Tr. 21.) Plaintiff testified that he was not ambulatory while wearing either the second or third cast. (Tr. 21.) After wearing the third cast for approximately two weeks, plaintiff was provided with a mini cast, which he described as a plastic cast that he was only required to wear while walking and could take off while he was resting. (Tr. 21-22.) Plaintiff testified that when the third cast was removed, he was advised by both Dr. Tejwani and his physical therapist that he was still suffering from a dropped foot.*fn6 (Tr. 22.) Plaintiff further testified that during the time that he wore the three casts, he experienced pain but that it was controlled through medication, specifically, Percocet, Advil and Vicodin. (Tr. 22.)

Approximately ninety days after his surgery, plaintiff first became ambulatory and was able to walk with the help of a walker. (Tr. 23.) Plaintiff testified that he used the walker for "a few weeks," after which he was given a cane that he used on and off for approximately one year. (Tr. 23.) Plaintiff did not undergo any further physical therapy following his March 2003 surgery, nor was any recommended by Dr. Tejwani. (Tr. 50.) Plaintiff continues to see Dr. Tejwani "from time to time" but testified that he had not seen him in the last year. (Tr. 24.)

Plaintiff further testified that he still has a "significant amount of tenderness" in his left ankle where the pins are located, as well as pain in his left leg where the rod is located. (Tr. 25.) Plaintiff stated that, since the accident, he is unable to walk more than one or two blocks at a time without stopping and is no longer able to exercise as he did before. (Tr. 25-26.) Plaintiff further stated that driving is now difficult at times and that he is no longer able to ski. (Tr. 25-26.) Although Dr. Tejwani has advised plaintiff that he has the option of undergoing a further surgery to remove the rod and pins from his leg, plaintiff has elected not to do so and the rod and pins remain in his ankle. (Tr. 26-27, 49.)

Finally, plaintiff testified that he suffered a prior injury to his left ankle in or around 1987 when he severely strained the ligament while playing basketball. (Tr. 27-28.) Plaintiff's left ankle was placed in a cast at that time and according to plaintiff, approximately one month later he was "back to full activity" without any limitations thereafter. (Tr. 28.) Plaintiff testified that he did not have any problems or complaints with regard to his left ankle following this incident and prior to his accident on February 19, 2003.*fn7 (Tr. 28.) Nor has plaintiff re-injured his left leg in any way since his accident. (Tr. 28.)

On cross-examination, plaintiff testified that since he typically went to the West Sayville Post Office every workday, he assumed that he was there the day prior to his accident - February 18, 2003. (Tr. 43.) Plaintiff did not complain to any postal employee that there was ice on the sidewalk in front of the post office on February 18, 2003. (Tr. 43.) Nor did plaintiff render such a complaint on February 19, 2003, the day of his accident. (Tr. 43.)

When asked on cross-examination whether he advised Southside Hospital that he "slipped on ice getting out of the car," plaintiff responded "absolutely not." (Tr. 53.) However, a review of plaintiff's admission records from Southside Hospital demonstrates that is what is listed as plaintiff's chief complaint on February 19, 2003. (Pl. Ex. 17.) Plaintiff confirmed that all of the other information listed on his admission records, such as his age, date of birth, the medications he was taking, his insurance information and his next of kin, were all correct. (Tr. 54--56.) Plaintiff reiterated that he did not inform the ...


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