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McClelland v. United States

July 26, 2010

WILLIAM MCCLELLAND, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT AND THIRD-PARTY PLAINTIFF,
v.
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Ambrose, District Judge

FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER OF COURT

SYNOPSIS

This is a slip and fall case brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§1346(b), 1402(b), 2401(b) and 2671-2680 by Plaintiffs, William J. McClelland and Barbara J. McClelland against Defendant, United States of America ("USA"). Plaintiff wife also asserts a claim for loss of consortium. Defendant, USA, filed a Third-Party Complaint against Third-Party Defendant, Northwestern Mutual Life Insurance Company ("Northwestern") for contribution and indemnity. A non-jury trial was commenced on April 5, 2010, and concluded on April 7, 2010. At the conclusion of the trial, I directed the parties to submit proposed Findings of Fact and Conclusions of Law on the issues of liability and damages. The parties have done so. (Docket Nos. 78, 81, 83). Having now fully considered the testimony of all witnesses and evidence admitted at trial, as well as the submissions of the parties, I make the following Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

A. Liability

1. On February 7, 2006, Plaintiff, William J. McClelland, was 52 years old.

2. Plaintiff, Barbara J. McClelland, is the wife of Plaintiff, William J. McClelland.

3. Plaintiffs knew each other since 1972 and were married on September 30, 1998.

4. Prior to the incident on February 7, 2006, Plaintiff-husband enjoyed doing housework, yard work, detailing cars, and attending car races.

5. On February 7, 2006, the United States Postal Service ("USPS") operated a Logistics and Distribution Center ("the L&DC") at 51 Pennwood Place in Warrendale, Pennsylvania 15086.

6. The L&DC is a large mail distribution center that operates 24 hours a day, 7 days a week.

7. The L&DC has 61 dock doors through which mail is loaded and unloaded.

8. There is a concrete pad/apron that extends 53 feet away from the building out toward an asphalt parking lot.

9. On a daily basis, the L&DC accommodates 200-300 tractor trailers that haul mail for the USPS.

10. On February 7, 2006, the building in which the L&DC is located was owned by The Northwestern Mutual Life Insurance Company ("Northwestern").

11. On the same date, the USPS was leasing the space in which the L&DC is located from Northwestern pursuant to a written lease.

12. The written lease provides that in addition to the base rent, the USPS shall pay as additional rent the cost of removing snow and ice from driveways and parking lots.

13. On February 7, 2006, Oxford Development Company ("Oxford") was the agent of Northwestern and was engaged as property manager for the building in which the L&DC is located pursuant to a written management and operating agreement.

14. On that same date, SMG Enterprises, Inc. ("SMG") was the snow removal contractor for the building in which the L&DC is located pursuant to a written service contract for snow removal with Oxford.

15. The service contract for snow removal states that SMG will plow snow from the parking lots when the snow reaches an accumulation of 2" or upon Northwestern's request and that SMG will salt the parking lot at their discretion or upon Northwestern's request.

16. However, if the accumulation was under two inches of snow and the USPS called, SMG would plow and/or salt the L&DC without having to get approval from Northwestern or Oxford.

17. The various USPS employees could and would call SMG for snow and ice removal.

18. The USPS took an active role with SMG to make sure the lot was plowed properly.

19. Additionally, sometimes USPS employees would engage in snow removal with a shovel and ice removal by spreading salt on the ice.

20. The shovels and salt were located just inside the doors at the L&DC. 21. On February 7, 2006, Plaintiff-husband was employed by Robert Neff, Inc. ("Neff") as a tractor trailer driver.

22. Neff hauls bulk U.S. mail pursuant to various contracts with the USPS. 23. On February 7, 2006, Neff assigned Mark Volkwein and Plaintiff-husband to haul a trailer full of U.S. mail from the L&DC to Harrisburg, Pennsylvania.

24. Mark Volkwein was assigned the 3:30 a.m. run and Plaintiff-husband was assigned the 7:30 a.m. run.

25. The trailers that Plaintiff-husband and Mr. Volkwein were to haul were parked at dock 31 when they arrived at the L&DC on the morning of February 7, 2006.

26. Between docks 31 and 32 were steps leading to a man-door where drivers would enter the L&DC building.

27. Plaintiff-husband had been hauling mail out of dock 31 on an almost daily basis for approximately two and a half years.

28. During inclement weather in 2006, the area between docks 31 and 32 tends to collect water. This was commonly known by the USPS as various persons had complained about it and had slipped and/or fallen there.

29. The USPS never had any discussions with Northwestern or Oxford specifically about the pooling or collection of water in the area between docks 31 and 32 prior to February 7, 2006, but just in general about water pooling on the apron.

30. Additionally, Draga Luksic at Oxford did regular site inspections of the L&DC prior to February 7, 2006.

31. Ms. Luksic noticed and was aware of water pooling on the apron in general. 32. In winter weather conditions, the area between docks 31 and ...


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