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Maria De Los Angeles Torres v. the United States of America

December 28, 2010

MARIA DE LOS ANGELES TORRES, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge:

OPINION AND ORDER

I. INTRODUCTION

Plaintiff Maria De Los Angeles Torres ("Torres"), filed a Complaint on June 1, 2009, seeking damages from Defendant United States Postal Services ("the Government"), pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674 (2006). Torres alleges that the Government is liable for the injuries she sustained from slipping and falling while in a United States Post Office located at 4165 White Plains Road, Bronx, New York ("Wakefield Station"). Specifically, she alleges the Government is chargeable with constructive notice of the dangerous condition that caused the accident. This case is before this Court as the parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Pending before the Court is the Government's Motion for Summary Judgment. For the following reasons, the Motion is DENIED.

II. BACKGROUND

A. Plaintiff's Accident

On June 1, 2007, at approximately 10:00 a.m., Torres and her mother, Maricelis Ramirez ("Ramirez"), entered the Wakefield Station to pick up three social security checks, two for themselves and one for another family member. (Mem. of Law in Supp. of Def. Mot. for Summ. J. ("Def. Memo") 3, June 24, 2010). There are two staircases in the foyer of the station which lead to the main customer service lobby area. Torres and Ramirez used the staircase to the right to make their way to the information window. (Id.) Torres obtained the checks and used the same staircase to leave the station. (Id.) Once outside of the station Torres realized that she had mistakenly obtained only two of the three checks. Torres and Ramirez re-entered the station to get the third check, again using the staircase on the right of the foyer. (Id. at 3--4). Torres spoke with two postal employees, who were able to locate the third check. Torres and Ramirez made their way down the same staircase while leaving the station.

Three or four steps down Torres's sandal got "stuck" on a substance on the staircase, which she believes to have been "either a melted Icee or melted rubbery candy." (Id. at 4). Torres fell and broke her right ankle. (Id. at 5). Torres and Ramirez did not notice the substance at any time prior to the fall. (Id.) The fall occurred at 10:40 a.m., approximately forty minutes after the first time Torres and Ramirez entered the station. (Id.) Once the accident occurred, Ramirez screamed for help and another costumer in the Station called an ambulance. (Dep. of Maria de Los Angeles Torres ("Torres Dep.") 154:10--12, June 24, 2010); Dep. of Maricelis Ramirez ("Ramirez Dep.") 96:23--24, June 24, 2010). Station manager Terry Pauls ("Pauls") and the custodian, Horace Nelson ("Nelson"), were summoned to the area. (Dep. of Horace Nelson ("Nelson Dep.") 34:4-- 22, June 24, 2010; Dep. of Terry Pauls ("Pauls Dep.") 38:6--22, June 24 2010). Pauls and Nelson did not recall seeing the substance after the accident. (Pauls Dep. 63:22, 64:10--14; Nelson Dep. 40:9--13.)

B. Employees' Actions Prior to the Accident

Horace Nelson is an employee of the United States Postal Service ("USPS") (Nelson Dep. 6:19--22.) On the day of the incident, he was stationed at the Wakefield Station on the 6:00 a.m. to 3:00 p.m. shift (Nelson Dep. 8:3--19; Pauls Dep. 12:4--5), and had arrived at work at approximately 6:00 a.m. At the start of each day, Nelson customarily cleaned and inspected the entire lobby area, which includes the foyer, two staircases, and the main customer service area ("the lobby area"), and he believes he followed this procedure on the day of the accident. (Nelson Dep., 19:2--26:22.) On that day, Nelson completed the initial cleaning of the area by 7:40 a.m., and inspected the area to ensure that it was dry and free of debris before the post office opened to customers at 8:00 a.m. (Id.)

Pauls is an employee of the USPS. (Pauls Dep. 6:2--10.) On the day of the incident, she was stationed at the Wakefield Station as a manager in charge of overseeing the station's daily operation. (Id. 7:25--8:10; Def. Mem. 2.) She began her shift at 7:00 a.m., and would customarily inspect the lobby area at that time to ensure that Nelson had completed his duties and that the area was clean and free of debris. (Def. Mem. 2--3.) Postal Service safety regulations required Pauls and Nelson to inspect the lobby area two to four times throughout their shifts to ensure the area was free of dangerous conditions. (Pauls Dep. 16:19--17:9.)

On the day of the incident, Terrence Dawson ("Dawson") was a custodian with the USPS and was stationed at the Wakefield Station on the 10:00 a.m. to 7:00 p.m. shift. (Pauls Dep. 12:6--7; Nelson Dep. 44:20.) Nelson was required to conduct a second inspection of the lobby area before Dawson's shift began. (Pauls Dep. 19:23--20:14.) As with Nelson, Dawson was supposed to inspect the lobby area at the start of his shift. (Pauls Dep. 35:22--24.)

The record does not show that additional inspections of the lobby area occurred subsequent to the initial cleaning at 7:40 a.m. Pauls did not inspect the area after the inspection at the beginning of her shift. (Pauls Dep. 19:18--22.) In describing his daily routine, Nelson does not mention conducting a second inspection of the lobby area. (See Nelson Dep. 26:22--31:17.) Pauls testified that she did not know whether Nelson had conducted a second inspection of the lobby area on the day of the accident. (Pauls Dep. 20:19--23; 23:10--14.) In fact, Nelson testified that he did not return to the area until he was summoned to the area because of Torres's accident. (Pl.'s Mem. In Opp. To Def. Mot. for Summ. J. ("Pl. Mem.") 2, Aug. 6, ...


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