The opinion of the court was delivered by: John T. Curtin United States District Judge
In this action against the United States, brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, plaintiff Daniel Delano seeks money damages for injuries he allegedly sustained while loading mail at the United States Postal Office in Dunkirk, New York, on October 26, 2005. Defendant has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction, or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons that follow, defendant's motion is denied.
At the time of the incident alleged in the complaint, plaintiff was working as a Highway Contract Route ("HCR") truck driver and delivery man for Wayman's Trucking, under an existing contract between Wayman's and the United States Postal Service ("USPS") to transport mail from the main distribution facility in Buffalo to post offices in the Dunkirk and Fredonia area. Item 1 (Complaint), ¶ 6; see also Item 34 (Deft. Statement of Undisputed Facts), ¶ 3. He had worked as a delivery man for mail contractors since 1992. Item 34, ¶ 5. His regular duties including driving the delivery truck to the main USPS processing and distribution facility on William Street in Buffalo, manually loading containers of mail onto the truck, driving the truck to the post offices on his designated route, and manually unloading the containers at the destination. See id. at ¶ 7; see also Item 35, Ex. A (Pltff. 2/18/09 Deposition Transcript), pp. 13-15.
The USPS uses several different types of containers to process and transport the mail. See Item 36 (Bombaugh Decl.), ¶ 8. Plaintiff testified that on his route, the mail was usually loaded for transport in all purpose containers ("APCs") which were made out of plastic, or canvas-sided hampers. Both types of containers were on wheels and ordinarily could be loaded onto the truck manually by the driver. Occasionally, if the load was large or if a container was noticeably overloaded, plaintiff would ask for assistance from a mail handler or other USPS personnel. Item 35, Ex. A, pp. 13-14.
In November 2004, the USPS introduced a new container known as the "84C Collapsible Wire Container" as a transport alternative to the standard "Rigid Wire Container," which had been in use for many years. See Item 36, ¶ 12, and Ex. G attached thereto. The new Collapsible Wire Container had a full load capacity of 2000 lbs. Id. at , Ex. G. Plaintiff testified that he began to experience problems with these new "wiretainers" soon after they were implemented for mail transport use at the William Street facility in the summer of 2005. Specifically, he testified that the containers were often overloaded by the mail handlers, which made the containers too heavy to maneuver without assistance. The weight of the containers also caused visible gauges in the concrete on the floor of the loading dock at the Dunkirk facility, which in turn would cause the front wheels of the container to get caught up when plaintiff tried to push the container on to the dock. See Item 35, Ex. A, pp. 35, 40-47.
On October 26, 2005, plaintiff arrived at the William Street facility in the early morning hours to load the mail onto his truck. He noticed that the Collapsible Wire Container he was to transport to Dunkirk was overloaded, so he asked a mail handler to help him load it onto his truck. Item 35, Ex. A, pp. 51-52. He arrived at the Dunkirk Post Office at approximately 3:00 a.m., and went through his regular routine to unload the mail. He pushed the loaded Collapsible Wire Container off of the truck and onto a "scissor jack," which he then lowered to the level of the loading dock. When he attempted to move the container off of the jack and onto the loading dock, the front wheels got caught up on the grooves in the concrete and would not move. He located a metal "shoring bar" on the loading dock and used it to pry the container free from the impediment. When he stood up he felt a burning sensation in his lower back. Id. at pp. 34-35, 60, 68, 73-75.
Plaintiff claims that as a result of this incident he sustained injuries to his thoracic and lumbar spine, including a herniated disc at L4-5 which required corrective microdiscectomy surgery. Item 34, ¶ 40; see also Item 25, Exs. B, C. As set forth in the complaint, plaintiff claims that his back injuries were caused by defendant's negligence "in causing, permitting and allowing the dock areas of the Dunkirk Post Office . . . to become and remain in a broken, defective, uneven, trap-like, hazardous and dangerous condition . . . ." Item 1, ¶ 7. He seeks various categories of compensatory damages amounting to $1.5 million.*fn1
The United States moves to dismiss the complaint for lack of subject matter jurisdiction, or, in the alternative, for summary judgment, on the ground that the FTCA's limited waiver of sovereign immunity does not apply in this case because the injury arose from the exercise of a discretionary function--namely, the Postal Service's decision to implement the Collapsible Wire Container, which led directly to plaintiff's injury.
As this court recently discussed in Kwitek v. U.S. Postal Service, 694 F. Supp. 2d 219 (W.D.N.Y. 2010), the FTCA provides a limited waiver of sovereign immunity with respect to claims against the United States that seek money damages for personal injury "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b); Kwitek, 694 F. Supp. 2d at 224. A significant limitation on this waiver of immunity is the discretionary function exception, which provides that the FTCA's authorization to sue the United States for damages shall not apply to . . . [a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of . . . an employee of the Government, whether or not the discretion involved be abused.
The purpose of the discretionary function exception is to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort." United States v. Gaubert, 499 U.S. 315, 323 (1991) (quoting United States v. Varig Airlines, 467 U.S. 797, 814 (1984)). The Supreme Court has observed that this exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." Varig Airlines, 467 U.S. at 808, quoted in Berkovitz v. United States, 486 U.S. 531, 536 (1988).
The standard that has emerged from the Varig, Berkovitz, and Gaubert decisions for determining whether the discretionary function exception applies in a given case requires this court to consider (1) whether the acts alleged to be negligent are "discretionary, in that they involve an 'element of judgment or choice' and are not compelled by statute or regulation . . . ," and (2) whether the judgment or choice in question is "grounded in 'considerations of public policy' or susceptible to policy analysis." Coulthurst v. United States, 214 F.3d 106, 109 (2d Cir. 2000) (quoting Gaubert, 499 U.S. at 322-23, and Berkovitz, 486 U.S. at 536-37). The government has the burden of proving that both conditions have been satisfied. Kwitek, 694 F. Supp. 2d at 227 (citing King v. United States, 491 F. Supp. 2d 286, 296 (D.Conn. 2007)).
In applying the first prong of this standard, the court first must identify the conduct that is alleged to have caused the harm, then determine whether that conduct can fairly be described as discretionary. See Fothergill v. United States, 566 F.3d 248, 252 (1st Cir. 2009), cert. denied, ___U.S.___, 130 S.Ct. 1892 (2010). Plaintiff claims that the conduct at issue is the negligent maintenance of the loading dock at the Dunkirk postal facility, while the government contends that the injury suffered ...