United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
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. Before the court
is the United States' motion for summary judgment. (Dkt.
#32.) 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.
Middleton Post Office
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.
are two catch basins in the west parking lot, one north of
the concrete parking pad and the other to the
south. 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:
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.
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
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.
March 14, plaintiff Richard Land drove a Dunham Express step
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.)
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.
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.
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 ...