DECEMBER 30, 1996
Plaintiffs William and Kathryn Boysen filed this tort action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., claiming damages for injuries resulting from Mr. Boysen's trip and fall on the sidewalk abutting the United States Customs House in Philadelphia. Plaintiffs seek damages in Count I for Mr. Boysen's medical expenses, lost income, and pain and suffering, and in Count III for Mrs. Boysen's loss of consortium.
The case was tried before this Court in a non-jury trial on October 23 and 24, 1996. The parties having submitted their proposed findings of fact and conclusions of law, this matter is ripe for our decision, which follows.
FINDINGS OF FACT
1. On June 17, 1992, Plaintiffs William and Kathryn Boysen, husband and wife, visited Philadelphia. (Tr., Vol. I, p. 45).
2. Mr. and Mrs. Boysen were in the area for their son's wedding and, having never been to the Philadelphia before, they decided to tour the city's historic area that day. (Tr., Vol. I, pp. 45-46).
3. With Plaintiffs were their two daughters, Tina Koepke and Tammy Wettstein, and their daughters' respective husbands, Wayne and David. (Tr., Vol. II, pp. 68).
4. Around noon, Plaintiffs and their family ate lunch at the City Tavern at Second and Walnut Streets in Philadelphia. (Tr., Vol. I, p. 46).
5. Lunch lasted approximately 45 minutes to one hour, during which time Mr. Boysen consumed one beer. (Tr., Vol. I, p. 29).
6. After lunch, Plaintiffs and their family exited the City Tavern and decided to head towards the Betsy Ross House. They began walking north on the sidewalk on the west side of Second Street. (Tr., Vol. II, p. 68).
7. The United States Customs House at Second and Chestnut Streets is one block north of the City Tavern. When Plaintiffs and family reached the sidewalk abutting the United States Customs House, Tina and Wayne Koepke and Tammy Wettstein were walking in front of the group (Tr., Vol. I, p. 14), Plaintiffs were behind them, with Mrs. Boysen slightly ahead of her husband, (Tr., Vol. II, p. 69), and David Wettstein was walking alone approximately three feet behind Mr. Boysen. (Tr., Vol. I, p. 19).
8. The condition of the area abutting the U.S. Customs House on Second Street shortly after noon on June 17, 1992, was as follows:
a. Adjacent to the Customs House was a grating surrounded by a granite border called a sill. The sidewalk abutted the sill. On the edge of the sidewalk next to the curb were trees. (Tr., Vol. I, pp. 19-20, 30-31, 47-48; Pls.' Exh. 2A-F).
b. The sill was slightly higher than the sidewalk adjoining it, creating an uneven surface or ledge at the point that the sidewalk and sill met. (Tr., Vol. I. 48; Pls.' Exh. 2A-F). The height of this ledge varied slightly over the course of the border between the sill and sidewalk, but was never greater than two inches. (Tr., Vol. I, p. 117).