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Jacqueline Mazzucca v. United States of America

August 17, 2012

JACQUELINE MAZZUCCA
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

This is an action in which Plaintiff Jacqueline Mazzucca seeks damages as a result of a fall on the rear sidewalk of the Southwark Post Office in Philadelphia on January 27, 2009. On January 24, 2011, Plaintiff filed a Complaint against Defendant the United States of America, alleging that on January 27, 2009, "a defective and dangerous condition in and/or of the sidewalk" of the United States Post Office caused Plaintiff to "trip and fall to the ground" ("January 27 Fall") and to suffer physical and economic injuries as a result. (Compl. ¶¶ 9, 12, 15-18, ECF No. 1.) Plaintiff alleges that Defendant's "carelessness, recklessness and negligence" caused this accident and her resulting injuries. Plaintiff asserts a claim under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA")*fn1 seeking damages for medical expenses in the amount of $8,502.80 and for non-economic damages including past and future pain and suffering and loss of ability to enjoy life's pleasures. (Compl. ¶¶ 15-18.) On May 31, 2011, Defendant filed an Answer. (Answer, ECF No. 5.) A trial by judge sitting without a jury was held on February 13, 2012.*fn2 On April 13, 2012, the parties each submitted proposed findings of fact and conclusions of law. (ECF Nos. 18, 19.)*fn3 Based upon the evidence and testimony presented at trial, we make the following Findings of Fact and Conclusions of Law, pursuant to Federal Rule of Civil Procedure 52(a).

I. FINDINGS OF FACT*fn4

1. Plaintiff is a female adult individual currently residing at 1216 Fitzgerald Street, Philadelphia, Pennsylvania. (Tr. 26, 98.)

2. At the time of the January 27 Fall, Plaintiff was residing with her sister, at 825 Dickinson Street, Philadelphia, Pennsylvania ("825 Dickinson Street"). (Id. at 27, 38, 98.)

3. Defendant, through the United States Postal Service, owns and operates the United States Post Office located at 925 Dickinson Street, Philadelphia, Pennsylvania ("Southwark Post Office"). (Id. at 37.)

4. 825 Dickinson Street is approximately one block away from the Southwark Post Office. (Id. at 98.) The front of the Southwark Post Office is located on Dickinson Street, between 9th and 10th Streets. (Id. at 22, 42.) The rear of the Southwark Post Office is located on Wilder Street, between 9th and 10th Streets. (Id. at 15, 22, 42.)

5. There is no public entrance to the Southwark Post Office from Wilder Street. (Id. at 42.) There is a door in the rear of the Southwark Post Office, which is for employees only. Customers are not permitted to use it. (Id. at 147.)

6. There is a sidewalk behind the Southwark Post Office, on the Southwark Post Office side of Wilder Street. This is where the January 27 Fall is alleged to have occurred ("Sidewalk"). (Id. at 41-43.)

7. The rear of the Southwark Post Office is located across the street from a CVS Pharmacy ("CVS"). (Id. at 17, 42, 43, 148.) There is a gate separating the sidewalk from the parking lot of CVS. (Id. at 43-44.) There is an opening in the gate through which "anybody can walk" ("Gate Opening"). (Id. at 44, 148; see also id. at 152 & Ex. Def.-5 at USPS 00153.)

8. Plaintiff had gone to that CVS many times. (Id. at 101.) She almost always went the same way, on Wilder Street, and would walk through the Gate Opening to enter the store. (Id. at 101-04.)

9. The Southwark Post Office employs "mounted routes," which are routes where the mail carriers drive vehicles to conduct their business. (Id. at 146.) The Southwark Post Office uses five mail carrier vehicles. These vehicles are vans. (Id.) The mail carriers generally begin their day at 6:30 a.m. and are generally back, with their vehicles parked at the rear of the Southwark Post Office building, by 3:15 or 3:30 p.m. (Id.) The mail carriers' vehicles are typically parked on the Sidewalk. (Id.) When the five vehicles are all parked on the Sidewalk at the same time, they cover the entire Sidewalk (behind the post office). (Id.)

10. Prior to the January 27 Fall, Plaintiff had suffered injuries as a result of several other incidents. (Id. at 28.)

11. When Plaintiff was nineteen years old, she was involved in a motorcycle accident. (Id.) As a result of this accident, she suffered cuts and bruises to her face, a fractured right pelvis, cuts to and numbness in her left forearm, and a fractured left pinky. (Id. at 29-32.) Plaintiff claims that she has recovered from most of these injuries. (Id.) However, Plaintiff has continued to experience numbness in her left forearm. (Id. at 31.) The numbness, she claims, has never extended into her left hand or left wrist. (Id.)

12. In May or June 2008, Plaintiff suffered a slip and fall outside of a 7-Eleven store. (Id. at 32-33, 119.) Plaintiff slipped and fell because of a large crack in the pavement. (Id. at 119.)*fn5 As a result of this fall, Plaintiff injured the heel of her left foot and her left knee. (Tr. 33, 120.) Plaintiff received treatment for these injuries in the form of therapy from Dr. Sedacca, who also treated Plaintiff for her injuries as a result of the January 27 Fall. Plaintiff sued 7-Eleven for the injuries received in the 7-Eleven fall. (Id. at 120-21.) Plaintiff's left knee injury was not completely healed at the time of the January 27 Fall. Her left knee has continued to bother her up until the time of trial. (Id. at 34.) Plaintiff has been diagnosed as having arthritis in her knees. (Id.)

13. A few days after the May or June 2008 slip-and-fall at the 7-Eleven, Plaintiff suffered another injury. (Id. at 34-35.) Plaintiff was using an ATM machine. As she attempted to retrieve dispensed money from the ATM machine, the machine door closed on her left hand. (Id. at 34.) As a result of this incident, Plaintiff sustained a bruise to her left ring finger. (Id. at 35.) Plaintiff and Dr. Yarus both indicated that this bruise was completely healed at the time of the January 27 Fall. (Id.; see also Yarus Dep. 70-71.)

14. On January 27, 2009, there was between 0.7 inches and 0.9 inches of snowfall on the ground in Philadelphia, Pennsylvania.*fn6 Plaintiff contends that snow did not contribute to her fall. (Tr. 51-52.)

15. At 12:00 p.m.*fn7 on January 27, 2009, Plaintiff left 825 Dickinson Street to walk to CVS, located on Wilder Street. (Tr. 38-42, 52.) The rear of the Southwark Post Office is located across the street from CVS. (Id. at 17, 42, 43, 148.) Plaintiff went to CVS frequently. She sometimes went to CVS twice a day, and sometimes more often than that. (Tr. 101, 114.) She almost always went the same way, on Wilder Street, and would walk through the Gate Opening to enter CVS. (Id. at 101-04.)

16. On January 27, 2009, on her way to CVS, Plaintiff saw her sister outside Iovan's Tax Agency ("Iovans"), which is located at 1435 South 9th Street, Philadelphia, Pennsylvania. (Id. at 15, 39.) Iovans is a half a block away from CVS, located on the same side of Wilder Street. (Id. at 41.) As Plaintiff was proceeding to CVS, Barbara Santoro came to the door of Iovans and asked where Plaintiff was going.

Plaintiff responded "CVS." (Id. at 15, 24, 40.) Since the Southwark Post Office was on the way to CVS, Santoro handed Plaintiff a letter and asked Plaintiff to mail it. Plaintiff agreed to do so. (Id. at 24, 40.)

17. Plaintiff left Iovans and headed toward the rear of the Southwark Post Office on Wilder Street. Since mail carriers would often as a courtesy take letters directly from individuals for mailing, Plaintiff was hoping to spot a mailman to whom she could hand the letter. (Id. at 42-43, 163.)

18. Either on the way to deliver the letter or immediately after delivering the letter,*fn8 Plaintiff tripped and fell on a sidewalk. (Id. at 44-46, 73 & Ex. Carrozza-1 (color photograph showing area where Plaintiff tripped and fell)*fn9 .) From the standpoint of someone walking from Iovans to CVS, the area of the Sidewalk where Plaintiff indicates that she tripped and fell is past the Gate Opening for the CVS. (Tr. 44; see also id. at 153-55 & Ex. Def.-5 at USPS000159, USPS00160, USPS00175.)*fn10

19. Plaintiff asserts that while walking, the top of her left foot became lodged in an uncovered pipe or hole in the Sidewalk. (Tr. 45, 56; see also id. at 48-49 & Exs.

Carrozza-3 & Carrozza-4 (color photographs depicting hole over which Plaintiff allegedly tripped and fell); id. at 149-50 & Ex. Def.-4.) Plaintiff did not see this hole. (Tr. 115.) The hole caused her to trip and fall. (Id. at 56-57.) As she was falling, Plaintiff's body went forward, but then she fell backward on her rear end. (Id. at 109.) Plaintiff's left knee and left hand struck the ground. (Id. at 57, 110.) Plaintiff asserts that the hole in the Sidewalk was round and approximately five inches wide. (Id. at 45.) The hole was created by a missing utility grate cover. (Id. at 73, 114.)

20. At about the time of Plaintiff's fall, Santoro saw an individual on the ground, on the sidewalk adjacent to the Southwark Post Office. (Id. at 16-17.) The individual was on the ground for approximately three minutes. (See id. at 16-17, 110.) After the individual got up and turned, Santoro recognized that the individual was Plaintiff. (Id. at 16, 20.)*fn11 After getting up, Plaintiff walked toward Iovans. (Tr. 17, 58.) Santoro observed that Plaintiff was having difficulty walking. (Id. at 17.)

Plaintiff entered Iovans and saw her sister and Santoro. (Id. at 111.)*fn12 Plaintiff told Santoro that she "fell in a hole." (Tr. 17.) Plaintiff testified that Santoro and her sister made jokes to try to make Plaintiff feel better. (Id. at 111.) Santoro testified that she wiped Plaintiff's hand with paper towels because it had been cut, and Plaintiff's knee, which had been bruised. (Id. at 17-18, 51.) Neither Santoro nor Plaintiff's sister called for medical attention for Plaintiff. (Id. at 21, 112.) Santoro did not go to the Southwark Post Office to report that Plaintiff had been injured because of a defect on the Post Office's property. (Id. at 23-24.)

21. Plaintiff subsequently left Iovans and went home. (Id. at 17-18, 59, 112.) She was able to walk. (Id. at 22.) Plaintiff did not go to the Southwark Post Office to report that she had been injured on the Post Office property. (Id. at 115.)

22. A couple of weeks, or a month, after the Accident, Plaintiff took photographs of the area where she tripped and fell. Some of the photographs showed snow on the ground. Plaintiff claimed that the hole that caused the fall was still there at that time. (Tr. 48-49, 83-84, 89-97.) Plaintiff does not contend that snow contributed to her tripping or falling. (Id. at 49-50.)*fn13 At the time that Plaintiff took these photographs, she did ...


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