The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: DEFENDANT'S MOTION FOR JUDGMENT ON PARTIAL FINDINGS
This Court initiated a non-jury trial in the above-captioned case on October 14, 2011. Presently before the Court is a Motion for Judgment on Partial Findings (ECF No. 49), filed by Defendant United States of America ("Defendant" or the "government") pursuant to Rule 52(c) of the Federal Rules of Civil Procedure. The government had previously filed a Motion for Summary Judgment (ECF No. 21), pursuant to Rule 56 of the Federal Rules of Civil Procedure, but the Court held the motion under advisement and indicated that it would initiate a non-jury trial on the scheduled date with Plaintiff Janet Carter ("Plaintiff" or "Ms. Carter") presenting her evidence only, at the conclusion of which, the government could then move for judgment on partial findings. After careful consideration of the evidence presented at trial and the parties' post-trial briefing, and for the reasons set forth below, which constitute the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the government's Motion for Judgment on Partial Findings is granted.
Rule 52(c) of the Federal Rules of Civil Procedure provides that "[i]f a party has been fully heard on an issue during a non-jury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue." Fed. R. Civ. P. 52(c). "A court may grant a Rule 52(c) motion made by either party or may grant judgment sua sponte at any time during a bench trial, so long as the party against whom judgment is to be rendered has been 'fully heard' with respect to an issue essential to that party's case." EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 272 (3d Cir. 2010). "In considering whether to grant judgment under Rule 52(c), the district court applies the same standard of proof and weighs the evidence as it would at the conclusion of the trial." Id. "Accordingly, the court does not view the evidence through a particular lens or draw inferences favorable to either party." Id. The court "should also make determinations of witness credibility where appropriate," and "if the court enters judgment under Rule 52(c), it must make findings of fact and conclusions of law pursuant to Rule 52(a)." Id. at 273.
The incident in this case took place on July 27, 2008 when Ms. Carter tripped and fell at the Beverly National Cemetery ("Beverly") in Burlington County, New Jersey, a facility owned and operated by the Veterans Administration. This case is therefore a tort action proceeding pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671 et seq. The Court finds that Ms. Carter was a credible witness. In summary fashion, she testified as follows.
On the afternoon of Sunday, July 27, 2008, Ms. Carter, her son Chavelle Carter ("Mr. Carter") and her fried Judina Lewis traveled by car to Beverly to visit the gravesite of Ms. Carter's parents and Mr. Carter's grandparents, Mildred and James Carter. At the time, Ms. Carter and her son had been visiting the gravesite once every week or two since her mother's burial in 2005. The gravesite was located at row K of the cemetery. On one side of the tombstone at the gravesite was inscribed the name of James Carter and on the opposite side of the same tombstone was inscribed Mildred's name.
On that afternoon, Mr. Carter parked the car about fifty feet from the gravesite, closer to the side of the tombstone bearing Mildred's name. Ms. Carter and her son walked to the gravesite while Ms. Lewis stayed in the parked car. As was their usual custom, on that afternoon, Ms. Carter and her son stood in front of the tombstone for approximately fifteen to twenty minutes. While they stood before the tombstone, neither Ms. Carter nor her son saw or noticed any hole or depression in the ground.
Mr. Carter then started walking back to the parked car. He walked in front of his mother intending to open the car door for her. As Ms. Carter was following her son back to the car, she stepped, left foot first, into a depression located a few feet in front of the side of the tombstone bearing her father's name. She lost her balance and stumbled, putting her right foot in the depression as well. Mr. Carter did not see his mother fall. When she did not respond to something he was saying, Mr. Carter looked back and saw his mother on the ground. He went to her, took her by the arm, and walked her to the car. As he was helping her back to the car, Ms. Carter told her son that she had fallen in a hole.
Ms. Carter testified to the nature of her injuries, and the expenses she had incurred because of her medical treatment.
Plaintiff called Hank Sasse ("Mr. Sasse") as a witness, a long-time caretaker at Beverly, who described the procedures for lawn cutting and other grounds maintenance. Mr. Sasse indicated that the various caretakers took turns mowing the lawn and the system worked well. He testified to the frequency of lawn cutting and that in July 2008, the caretakers would inspect the grounds for holes and depressions by sight and by feel as they went through the various sections of the cemetery on their lawnmowers. Mr. Sasse testified that the entire cemetery grounds were mowed, a portion at a time, but each section was mowed once a week. If a hole or depression were found, the standard procedure would be to note the location, and give it to the acting foreman who would assign it to the caretaker handling that section of the cemetery, for filling. Mr. Sasse described the configuration of the lawnmowers used, and testified that the lawnmowers would have detected depressions in the cemetery grounds, given the procedures described above. He testified that most holes in the cemetery were caused by a breakdown of a casket and the ground above the casket emptying into a hole, and a hole could develop suddenly, even on an overnight basis. He also testified as to the cause of brown spots. He did not have any personal knowledge of any hole or depression prior to July 27, 2008, around the gravesite of Ms. Carter's parents.
Plaintiff also called as a witness her son, Mr. Carter, who testified that as he and his mother were leaving the gravesite, he heard his mother yell out, but he did not actually see her fall. When he turned around, his mother was lying on the ground, evidencing some pain. He then took photographs of the site where she had fallen, which the Court admitted into evidence. At trial, he testified that in the months leading up to the incident, he observed that the grass was no longer green, there were a number of brown spots, the grass had not been cut, and the cemetery no longer looked like a golf course, as it had previously.
On cross examination, Mr. Carter admitted that he had given a written statement shortly after the incident, which was materially different in some important respects from his testimony at trial. Moreover, in his deposition testimony, Mr. Carter testified that the only thing he remembered about the cemetery grounds prior to July 2008 was that there was no grass growing on his grandmother's grave. Otherwise, he stated at his deposition that the cemetery "looked like it was up kept to me. The grass was cut and the flowers were all planted." Given this ...