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August 11, 1993

JAMES B. BARTO, Defendant

The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 August 11, 1993


 On January 7, 1991, plaintiff Sandra Kay Haas initiated this action with the filing of a complaint in the Court of Common Pleas of Clinton County. The complaint alleged a cause of action in negligence for pulling a set of steps out from under plaintiff while she was working on a large truck.

 On April 15, 1992, the matter was removed to this court pursuant to 28 U.S.C. § 2679 upon certification by the United States Attorney's Office that the conduct occurred within the scope of defendant's federal office or employment. Before the court is defendant's motion to substitute the United States as defendant and to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), (6), or, in the alternative, for an evidentiary hearing on the disputed facts. [Defendant James B. Barto and the United States are referred to collectively hereinafter as "defendant."]

 Since the granting of the motion for summary judgment is, in effect, a holding that the court does not have jurisdiction, the motion for summary judgment and the motion to dismiss under Rule 12(b)(1) will be treated as one motion, and discussed in terms of the motion for summary judgment.


 Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (Emphasis supplied).

. . . The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

 Celotex v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, supra at 323 and 325.

 Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).


 The following facts are those submitted by defendant in its motion, with facts in dispute construed in favor of plaintiff, the non-movant. If not material to a resolution, the facts submitted by the parties are omitted.

 On March 6, 1989, plaintiff and defendant Barto were civilian employees of the United States Army Reserve at a facility in Lock Haven, Pennsylvania. Plaintiff and defendant Barto worked as heavy equipment repairers. The facility where plaintiff and defendant Barto worked had four service bays. Plaintiff was assigned to bay number 2 and defendant Barto was assigned to bay number 3, which was next to bay number 2.

 At approximately 9:00 a.m., plaintiff was working on a Chevrolet Blazer in her bay with her partner, Richard Truax. The vehicle was raised up on jack stands under each wheel. Plaintiff had been working on the passenger side of the vehicle, repacking the wheel bearing and then proceeded to change the fuel filter, which was located in the engine compartment. In order to work under the hood of the vehicle, plaintiff needed the assistance of steps, and there were none in her bay.

 There were two pairs of steps located in bay number 3, but defendant Barto was not present in bay number 3 when plaintiff removed a set of steps to bay number 2 for her own use. The steps were made of wood and consisted of three treads. At the time plaintiff removed the steps from bay number 3, they were up against a truck in bay number 3, but no one was around the truck. Plaintiff was unaware of whether any work was in progress on the truck in bay number 3, though she knew that bay number 3 was defendant Barto's work area.

 Plaintiff carried the steps over to the passenger side of the Blazer on which she was working, and set them down against the tire and frame of the vehicle. Plaintiff was on the top step of the set of steps roughly ten to fifteen minutes when she saw defendant Barto walking towards the parts room. The next event of which plaintiff was aware was defendant pulling the steps out from under her while making the comment, "I made these //--ing steps; they are mine." Plaintiff stepped down from the steps on her left foot very hard on the concrete floor and twisted her neck while twisting her torso from underneath the hood because she did not want to fall and did not want to hit her head.

 The steps in question were regularly and routinely in use at the army reserve facility. Plaintiff understood that defendant Barto took the steps back and returned them to the place where he was using them, and in fact that is what occurred.

 Plaintiff reported the incident immediately, but did not report any injury at the time of the incident. Her physical problems began during the course of that day, and she worked from the day of the incident, a Monday, through Wednesday of the same week at 4:00 p.m. She did not work on that Thursday or Friday, and went to a doctor that Thursday with her complaints. The appointment was made the day after the incident. [Plaintiff's full injuries are not material to disposition of the instant motion.]

 Plaintiff applied for and received workers compensation under the Federal Employees Compensation Act in December, 1990, due to the injuries received as a ...

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