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Atlantic Specialty Insurance Company v. United States

United States District Court, W.D. Wisconsin

August 30, 2017

ATLANTIC SPECIALTY INSURANCE COMPANY, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant. RICHARD LAND, Involuntary Plaintiff,

          OPINION AND ORDER

          WILLIAM M. CONLEY, DISTRICT JUDGE.

         While making a delivery for his employer Dunham Express, involuntary plaintiff Richard Land allegedly fell on ice in the Middleton Post Office parking lot, injuring his neck, back, shoulder and wrists. Dunham's occupational accident insurance carrier, plaintiff Atlantic Specialty Insurance Company, now seeks money damages from the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80. Specifically, Atlantic alleges that the United States was negligent in failing to both divert water from the parking lot and to treat the ice with salt or sand.[1] Before the court is the United States' motion for summary judgment. (Dkt. #32.)[2] For the reasons that follow, the court concludes that Atlantic has failed to put forth sufficient evidence from which a reasonable fact finder could find that defendant breached a duty of care. Accordingly, the court will grant defendant's motion for summary judgment.

         UNDISPUTED FACTS[3]

         A. Middleton Post Office

         The United States Post Office in Middleton, Wisconsin, is located at 7613 Elmwood Avenue. The customer entrance and parking lot are on the north side of the building. On the west side of the building, there is a loading dock area and parking area for employees and delivery trucks. The loading dock area has a concrete pad that has parking stalls for two trucks to unload side by side.

         There are two catch basins in the west parking lot, one north of the concrete parking pad and the other to the south.[4] The photograph below shows the catch basin to the right (or south) of Land's truck as it faced the loading dock, the morning of the accident:

         (Image Omitted)

         (Land Depo., Ex. 9 (dkt. #35-5).) There is a small pitched roof over the loading dock area with a gutter that drains into a downspout on the north side of the loading dock (barely visible in the picture) and into the catch basin north of the loading dock (not visible). The roof on the remainder of the Middleton Post Office is flat.

         Roberta Statz was the acting manager at the Middleton Post Office on March 14. She typically arrived between 6:00 and 6:30 a.m., which she believes was her arrival time that morning, although she was not certain of that by the time of her deposition. Regardless, there is no dispute that she arrived before Land and was at the Post Office at the time of his fall.

         Statz parked in the south stall of the concrete parking pad. She then walked around the back of her van and up the ramp leading into the loading dock area to enter the building. This path is well traveled, with approximately 30 people entering the Middleton Post Office through the loading dock each day. Statz did not observe any ice or experience any slippery conditions in the parking lot that morning, even in the area where Land reported falling. Statz avers in her declaration that if she had observed ice or experienced slippery conditions, she would have arranged for salt or sand to be applied, or she would have done so herself. Statz further avers that she did not believe that there would be ice present or forming given the temperature that day.

         B. Land's Accident

         On March 14, plaintiff Richard Land drove a Dunham Express step van[5] to the Middleton Post Office to deliver two boxes of toner cartridge. Land arrived between 8:30 and 9:00 a.m., and parked his truck in the southern parking stall of the concrete pad in the loading dock area, immediately behind Statz's van. In the complaint, Atlantic Specialty and Land allege that he exited his truck and “stepped into a large hole filled with ice and water.” (Pl.'s Compl. (dkt. #1) ¶ 11; Invol. Pl.'s Compl. (dkt. #3) ¶ 1.) At his deposition, however, Land conceded that this description was not accurate. Instead, Land claims that he stepped out of his truck on the passenger side, took several steps, and then slipped on ice underneath water. While acknowledging that he saw the water before stepping down, Land testified that he did not know there was ice underneath it. Land further testified, consistent with Statz, that before falling, he did not see any ice in the area where he fell. At his deposition, Land also testified that he did not expect ice “because things were melting.” (Land Depo. (dkt. #35) 67.)

         At approximately 9:30, Land reported to an employee that he had slipped and fallen, hurting his neck, back, left shoulder and wrists. Land was then directed to Statz, who took notes and photographs to create a report.

         On the passenger side of Land's truck and Statz's van, there was water draining from an area of residual snow adjacent to the building (not visible in the picture) into the catch basin south of the loading dock area (as shown in the picture). Plaintiff Atlantic contends that both water and ice were present, not simply water and that the photos speak for themselves as to whether they depict ice and/or water. (Pl.'s Resp. to Def.'s PFOFs (dkt. #47) ¶¶ 23-24.) In contract, Statz avers that the water was not deep enough to measure, and the pavement was clearly visible through it, which defendant contends undermines any inference that the pavement was obscured by ice.

         For his part, Land testified that he never saw ice in the area where he fell and, when asked to review the photographs taken immediately after his fall, he could not identify any visible ice in the area. (Def.'s Reply to Def.'s PFOFs (dkt. #55) ¶ 24 (citing Land Depo. (dkt. #35) pp.79-81).) Still, Land ...


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