The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff Edward Kwitek filed this action on December 14, 2007, against the United States of America and the United States Postal Service ("USPS") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671-2680, for money damages based on personal injuries he allegedly sustained in October 2005 while loading containers of mail at the LaSalle Post Office Station in Niagara Falls, New York. Following discovery, and after referral of the case for mediation pursuant to the court's alternative dispute resolution plan, the court placed the matter on the calendar for a bifurcated non-jury trial on the issue of liability to commence on September 2, 2009.
On the eve of trial, the government filed a motion to dismiss the complaint for lack of subject matter jurisdiction based on the "independent contractor" and "discretionary function" exceptions to the FTCA's limited waiver of sovereign immunity. The court heard oral argument of the motion on September 1, 2009, and reserved decision, allowing the two-day liability trial to proceed as scheduled the next day.
On February 18, 2010, this court entered its decision and order (Item 51) denying the government's motion to dismiss, finding that neither exception to the FTCA's waiver of immunity applied under the circumstances presented in this case. See Kwitek v. U.S. Postal Service, 694 F. Supp. 2d 219 (W.D.N.Y. 2010). The court then referred the matter to a United States Magistrate Judge for one final attempt to settle the case, but this was unsuccessful.
The court therefore now makes the following findings of fact and conclusions of law on the issue of liability, in accordance with Rule 52 of the Federal Rules of Civil Procedure.*fn1
In October 2005, plaintiff was working as a driver for Midwest Transport, Inc. ("Midwest Transport"), an independent trucking company hired by the USPS under a 3,700-plus page "Transportation Services Contract" (Ex. 44)*fn2 to transport mail between postal facilities in Buffalo, Grand Island, and Niagara Falls, New York. Plaintiff claims that he sustained severe injuries to his back and spine when, on October 19, 2005, "he was forced to maneuver two large bins of mail onto his truck without assistance from defendants' personnel and without being provided appropriate equipment" at the LaSalle Station loading dock. Item 1, ¶ 9.
The facts relating to this claim were developed through the presentation of testimony and related exhibits at the non-jury trial held on September 2-3, 2009. Plaintiff testified, and offered the testimony of former USPS employees C.C. Cox, Jr. and John Sullivan. The government offered the testimony of USPS employees Steven Simpson, Janine Egloff, and Brendan Shea, along with the testimony of plaintiff's supervisor at Midwest Transport, Robert Straker. A summary of these witnesses' trial testimony follows.
1. Plaintiff Edward Kwitek
Plaintiff was born in Buffalo and grew up in Lackawanna, New York. He was 52 years old at the time of trial. He worked at several jobs over the years, including 21 years at a company known as Connex, which made and sold thermal coupling and heat sensing devices. He began working for Midwest Transport in July 2003, and had been assigned to the Buffalo/Grand Island/LaSalle route for approximately two years prior to October 2005, when his injury allegedly occurred (Tr. 6-9).*fn3 Plaintiff's normal routine included three trips each day along the route, five days a week. His work day started at around 11:30 a.m. at the Midwest Transport truck yard in Buffalo, where he would "pretrip" his truck by checking the fuel, oil, tires, fluids, brakes, and other operating components before heading to the Buffalo Post Office. There he would back his truck into an assigned loading dock and pick up a trailer loaded with mail for delivery to Grand Island and Niagara Falls. At the first stop on Grand Island, he would ordinarily pick up a small white mail basket, which he placed on the trailer himself. He would then proceed to the LaSalle Station, usually arriving there around 1:20 p.m. on the first run (Tr. 10-14).
Upon arriving at the LaSalle Station, plaintiff would back his tractor-trailer into an available loading dock, unhook the tractor from the trailer, and pull around to another dock to hook up to a different trailer which the dock handler, C.C. Cox, had already loaded with the mail to be taken back to Buffalo. He testified that during the two years he had worked for Midwest Transport on this particular route, C.C. Cox or other USPS employees always had the return trailer loaded. Plaintiff never had to load the mail himself (Tr. 14-19).
Once the new trailer was hooked up and the load secured, plaintiff would once again "pretrip" the tractor-trailer to make sure it was ready for the return trip. The written time schedule (see Ex. 2) allowed for 20 minutes from arrival to departure to accomplish all of these tasks at the LaSalle Station. According to plaintiff, it was within his discretion to ask for a late slip so that he could still get paid if the mail was delayed, but the Post Office was reluctant to give out late slips if the delay was their fault (Tr. 19-24).
At trial, plaintiff could not specifically recall what day of the week the incident at issue occurred on, but he knew it was during the week of October 19, 2005. He testified that when he arrived at the LaSalle Station on his first run that day, everything was dark in the loading dock area, and there were no USPS employees around. He looked inside the trailer he was supposed to take back to Buffalo and saw that it was empty. He had keys to the facility, and so he went inside and proceeded to the supervisors' desk. He asked the supervisors if there was anybody to load the trailer, but "they said nobody was available and I was on my own" (Tr. 25). The supervisors pointed to two wire cages, approximately four or five square feet in diameter and three feet high, that were supposed to be taken back to Buffalo. Plaintiff testified that he was familiar with the cages, which were used during the holiday season for heavier bulk and catalogue mailings, but this was the first time he had ever been told that he would have to load the cages himself. He was also aware that power loading equipment was available on the loading dock at the LaSalle Station, but only for use by trained dock handlers. It was not available for use by truck drivers. It occurred to him to call his supervisor at Midwest Transport, Rob Straker, but he decided that "[i]t wouldn't have made no difference. He would have probably told me to go do the best you can." (Tr. 27).
Plaintiff testified that as he began pushing the first heavy wire container across the loading dock floor, he felt a pain shooting down his left side from his stomach area to his groin. He continued to push the container into the trailer on an uphill incline all the way to the front, closest to the driver. He managed to load both wire containers and maneuver them into position, with difficulty. He testified that he continued to work for about five days before reporting the incident, until the pain became too severe. When he reported the incident to Mr. Straker, he was told to go and see his doctor (Tr. 28-30).
On cross-examination, plaintiff testified that on occasion he would help C.C. Cox and other handlers load the mail at the LaSalle Station, but usually they already had the return trailer loaded by the time he arrived. He was shown photographs of wire containers (Exs. 36, 38, 40), but he testified that these were not the same containers he loaded on the day he was injured. The ones he loaded were larger. They were only used during the holiday season, and were usually loaded with an electric tow motor (Tr. 36-41).
Plaintiff testified that he did not voice any complaints to anyone about the loading dock procedures at the LaSalle Station, which required him to turn over his keys to the dock handler upon arrival. He did, however, complain to Mr. Straker on several occasions about the lateness of two other Midwest Transport drivers, which often caused plaintiff to be late (Tr. 44-47).
Plaintiff identified Exhibits 21, 22, and 25 as photographs accurately depicting the LaSalle Station loading dock area. He reiterated his direct testimony that when he entered the loading dock area on the day he was injured, all the lights were off. He observed that the trailer he was supposed to take back to Buffalo was empty. He went inside to the supervisor's desk and spoke to two supervisors. He was unable to identify either of these individuals, although he testified that one was a white male. The supervisors told him no one was available to load the trailer, and he was on his own. They pointed to two wire cages on the loading dock, and told plaintiff those cages needed to go back to Buffalo. He proceeded to load the first wire container into the trailer. About halfway up the trailer, he felt a sharp pain. He stopped to compose himself, and then continued to push the container to the front of the trailer. He also went back and loaded the second cage on his own. He did not stop to ask for help, either from USPS personnel at LaSalle or from his supervisor at Midwest Transport, because he was told by the supervisors that no help was available. He was also under time constraints to get the mail back to Buffalo at the risk of losing his job (Tr. 49-64).
Mr. Cox was employed by the USPS for more than 29 years. He worked as a Mail Handler at the LaSalle Station from April 2001 until October 31, 2005, when he went on sick leave. He retired on March 30, 2006 (Tr. 66-69).
Exhibit 4 is a printout of Mr. Cox's work attendance sheet for the period October 10 through October 28, 2005. It indicates that he worked his regular hours (9:15 a.m.-- 6:45 p.m.) on Monday, October 17 through Thursday, October 20, and he took annual leave on Friday, October 21. Mr. Cox testified that during that time he and other USPS employees, identified as Steve Simpson, Janine Egloff, and Mary Kowalski, regularly loaded the Midwest Transport trailer which was scheduled to depart from the LaSalle Station at 1:35 p.m. It was primarily Mr. Cox's job to load the mail onto the trailer. If he was not there, management would assign another USPS employee to do it. It would not be appropriate procedure to allow the driver to load the mail himself. Nor would it be appropriate to allow the driver to use the mechanical loading devices, which were only available for use by qualified USPS personnel. Mr. Cox used the mechanical devices regularly to load heavy items, primarily "skids" without wheels (Tr. 69-74).
The normal routine for the 1:15 p.m. truck from Buffalo/Grand Island gave the driver approximately 20 to 25 minutes to drop off the inbound trailer and pick up the outbound trailer. After the driver arrived and properly positioned his tractor, he came into the loading dock area, turned over his keys to Mr. Cox, and waited for permission to back in to the dock in order to leave the trailer he brought and pick up the load Mr. Cox had prepared for transport to Buffalo. In all of his years with the Post Office, Mr. Cox never told a driver to load the mail himself (Tr. 75-77).
On cross-examination, Mr. Cox testified that the wire containers depicted in Exhibits 36, 38 and 40 were the largest containers available at the LaSalle Station during the relevant time period. These containers were used for parcel post, Priority Mail, or whatever mail was placed in the containers by the clerks on the line. Magazines were not placed in this type of container. Mr. Cox was responsible for bringing these containers to the dock area to be loaded on the trailers. He testified that when fully loaded, the containers weighed less than 2,000 pounds. If there was a manual lift or a manual pump jack available on the loading dock in October 2005, drivers were not authorized to use it (Tr. 78-80).
Mr. Cox testified, and his time and attendance records confirm, that when he was on duty, he was always present for dispatch of the 1:15 p.m. Midwest Transport truck. According to Mr. Cox, plaintiff did have a problem with the safety rule which required the truck driver arriving at LaSalle to turn over his keys to the dock handler after parking his truck. This rule was necessary because of past incidents involving drivers who left the dock without the truck properly configured or the doors properly positioned. ...