The opinion of the court was delivered by: Conti, District Judge.
Pending before this court is a motion for summary judgment filed by defendant, United States of America (the "United States" or "government"). Plaintiffs John J. Matsko III ("Matsko" or "plaintiff") and Teresa A. Matsko ("T.M.") (collectively, "plaintiffs") commenced a civil action against the government and Rudy Kotor ("defendant Kotor") pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et. seq. ("FTCA"), alleging that defendant Kotor injured plaintiff during the course of defendant Kotor's employment as a mine inspector for the Mine Safety Health Administration ("MSHA") of the Department of Labor, an agency of the United States.
In this case, plaintiff asserted claims against the United States under the FTCA on two different theories. Plaintiff asserted a claim against the United States for the actions of defendant Kotor as Kotor's employer and also asserted a claim against the United States for failing to protect him from injury, despite a duty owed to him as a business invitee. Matsko v. United States, 372 F.3d 556, 557 (3d Cir. 2004). Previously, the government filed a motion to dismiss all the claims asserted in plaintiffs' amended complaint including the two claims asserted by Matsko and T.M.'s claim for loss of consortium arguing that this court lacks subject-matter jurisdiction over both defendants. The court granted the government's motion to dismiss. Matsko appealed to the United States Court of Appeals for the Third Circuit.*fn1
The court of appeals affirmed in part and reversed in part. With respect to Matsko's first claim that Kotor's actions are imputed to his employer, the United States, the court of appeals agreed with this court that the United States retains immunity for intentional assaults by government workers who are acting outside the scope of their employment and affirmed the dismissal of plaintiff's claim against the United States as Kotor's employer. (Id.) The court of appeals held that defendant Kotor was not acting within the scope of his employment when he assaulted plaintiff, and therefore the claim was precluded under the FTCA. (Id.) With respect to plaintiff's second claim, the court of appeals reversed this court's ruling dismissing Matsko's negligence claim as a business invitee against the United States. (Id.) The court of appeals held that claim should stand and be "resolved on the merits, rather than in a jurisdictional challenge." (Id. at 561.) The court of appeals, held that insofar as Matsko claims that the United States is liable for the negligence of defendant Kotor's supervisors and co-workers, then the lawsuit should not have been dismissed.
The court of appeals remanded the case for further proceedings consistent with its opinion. (Id.) Following several months of discovery, the government filed the present motion for summary judgment. By reason of the existence of a genuine issue of material fact, this court will deny the government's motion for summary judgment.
The parties essentially agree on the following facts. On June 1, 2000, plaintiff had a meeting with Earl Miller ("Miller"), a representative of MSHA, at MSHA's offices in Johnstown, Pennsylvania. (Joint Statement of Material Facts ("J.S."), Doc. No. 38 ¶¶ 43-44.) Miller borrowed defendant Kotor's chair for plaintiff to sit in during the meeting. (Id. ¶53.) At some point during the meeting, defendant Kotor entered the office and commented that plaintiff was in his chair. (Id. ¶ 84.) Plaintiff began to push himself up out of the chair, when defendant Kotor, without provocation, approached plaintiff from behind, grabbed plaintiff by the back of the neck, pushed him out of the chair, and slammed his neck and head forcefully down on a briefcase. (Id.) Defendant Kotor's actions resulted in injuries to plaintiff including a broken vertebra and a herniated disk in plaintiff's neck. (Doc. No. 25, Ex. B (Statement of John J. Matsko III).)
The parties do not agree, however, on the facts and circumstances surrounding and leading up to the incident on June 1, 2000. Plaintiffs contend that the government knew or should have known of the violent and abusive tendencies of defendant Kotor and failed on June 1, 2000, to take adequate steps to protect plaintiff from the risk of harm or otherwise prevent injury to plaintiff. In support of his claim, plaintiff adduced the following evidence to show that MSHA employees knew or should have known of defendant Kotor's behavior.
Testimony of Vincent Jardina
Vincent Jardina was a mine inspector with MSHA in Johnstown, Pennsylvania from 1978 through 1996. (Deposition of Vincent Jardina ("Jardina Dep.") at 11.) Mr. Jardina worked with defendant Kotor from 1983 through 1996. (Id. at 19.) Mr. Jardina described defendant Kotor's demeanor as "very scary", and "[v]ery hostile and angry, attitude-wise." (Id. at 18-19.) On one occasion in 1986, Mr. Jardinia was conducting an inspection with defendant Kotor when a safety director questioned defendant Kotor about his experience as an inspector. (Id. at 20.) Defendant Kotor abruptly got up from the table with a clinched fist. (Id.) Defendant Kotor turned very red in the face and clenched both of his fists very tightly. (Id.) Mr. Jardina grabbed defendant Kotor by the arm and escorted him outside, because he was concerned that defendant Kotor may physically accost the mine employee. (Id. at 21.) After returning to the field office, Mr. Jardina reported the incident to the two supervisors in charge, Theodore Glesko and Walter Koba. "Mr. Koba said, I think you're over exaggerating. Mr. Glesko just smiled, laughed and walked away." (Id. at 22.)
Mr. Jardina testified about an incident when defendant Kotor came into the locker room at the field office and punched a locker. (Id. at 24-25.) Mr. Jardina stated that a lot of inspectors and he would avoid defendant Kotor, "because you don't know how he would react." (Id. at 26.) "He just seemed like a guy -- just like a gun's ready to go off." (Id.) Mr. Jardina described defendant Kotor's behavior in staff meetings as "[v]ery volatile . . . he would come down, slam his fists down on the desk and everybody heard it hit the table . . . . And everybody would look like, well, what's with him today." (Id.) On one occasion defendant Kotor kept punching Mr. Jardina in the arm during a meeting, and Mr. Jardina has observed defendant Kotor poking others with pencils on several occasions. (Id. at 27.)
Mr. Jardina told of another incident in the presence of two other inspectors when defendant Kotor grabbed Mr. Jardina from behind as he got out of the shower and put him in a headlock and a choke hold. (Id. at 28.) After Mr. Jardina finally struggled free and confronted defendant Kotor, defendant Kotor responded, "[W]hat's the matter, cuz? Can't you handle the pressure?" (Id. at 29.) Another inspector who had witnessed the incident asked defendant Kotor "Rudy, what the hell's the matter with you? What are you doing" and defendant Kotor "just laughed and walked back out of the shower." (Id. at 29.) Mr. Jardina reported this incident as well as defendant Kotor's disposition in the field, angry moods and mood swings to supervisors Mr. Koba and Mr. Glesko. (Id. at 30.) When Mr. Jardina did not receive an adequate response from Mr. Koba, he reported these episodes to the District II manager Joseph Garcia. (Id.)
Mr. Jardina told of an incident with defendant Kotor in 2000, which was witnessed by several MSHA inspectors.*fn2 (Id. at 35.) Mr. Jardina and defendant Kotor were leaving the Ruff Creek field office for lunch when defendant Kotor asked Mr. Jardina if he would like to share a hotel room with him rather than drive all the way back to Johnstown. (Id. at 35-36.) Mr. Jardina declined and told him he would rather drive home to his wife and kids. (Id.) Defendant Kotor then threw his briefcase down on the ground and said in a "very loud," "very hostile" voice, "well, F*** you, too . . .if that's the way you feel, be that way." (Id. at 36.)
Finally, Mr. Jardina testified to numerous acts of bullying and intimidation by defendant Kotor of fellow inspectors as well as mine workers. Defendant Kotor would push and shove other inspectors when he passed them in the hall. (Id. at 100.) On several occasions defendant Kotor yelled at co-workers in a loud threatening tone to "Get out of my damn seat! That's my desk!" (Id. at 102.) On one occasion in front of several inspectors, defendant Kotor approached a ...