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Trojecki v. United States

United States District Court, E.D. Pennsylvania

March 21, 2014

LINDA M. TROJECKI, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant.

MEMORANDUM

HENRY S. PERKIN, District Judge.

Plaintiff, Linda M. Trojecki ("Mrs. Trojecki"), filed this lawsuit pursuant to the Federal Tort Claims Act, 28 U.S.C. ยง 2674, to recover damages for injuries she suffered on December 21, 2009 as a result of a fall at the United States Post Office located in Downingtown, Pennsylvania. On that date, Mrs. Trojecki fell on the smooth metal grating which comprises the vestibule floor between the outside door of the post office and its interior door. Mrs. Trojecki contends that she suffered serious and permanent injuries as a result of the fall. Michael Trojecki, Plaintiff's husband, voluntarily withdrew his sole claim for loss of consortium and is no longer a party in this case. See Docket Nos. 28, 39. The case was tried before the undersigned without a jury on June 10, 2013. Pursuant to Federal Rule of Civil Procedure 52, and after hearing all of the evidence in the case and determining the credibility of all witnesses, and following a separate site view of the subject premises, this Court enters its findings of fact and conclusions of law.[1]

I. FINDINGS OF FACT.

A. The Incident.

On Monday, December 21, 2009, there was approximately two feet of snow on the ground in the area of the Downingtown, Pennsylvania post office located at 470 Boot Road ("Downingtown Post Office"), left over from a December 19, 2009 major snowstorm. On December 21, 2009, Mrs. Trojecki went to the Downingtown Post Office to buy stamps for Christmas cards. (N.T., 6/10/13, p. 21.) In addition to other winter garb, she wore rubber soled shoes. According to the National Climatic Data Center's Philadelphia weather report for that date, [2] the temperatures straddled the freezing point, ranging between twenty-two to thirty-eight degrees.[3] At approximately 2:30 p.m., Mrs. Trojecki parked her automobile in the parking lot and proceeded up the main walkway to the front entrance. (Id. at 22.) She opened the door leading into a small vestibule, went through the vestibule to the next set of doors and through those doors into the post office lobby. From there, she went to a stamp vending machine and made her postage purchase.[4]

After successfully completing this purchase, Mrs. Trojecki turned around and walked out through the inside doors which led to the vestibule and fell on her right side inside the vestibule. Another customer came over to help her to her feet, and Mrs. Trojecki mentioned to this customer that the floor was wet. After standing, Mrs. Trojecki went back through the inside doors into the post office and told the male postal clerk behind the counter that she fell and there should be mats on the floor because it was wet. The postal clerk then went to locate the office's Postmaster, Patricia L. Whalen ("Postmaster Whalen"), to inform her of Plaintiff's fall. (Id. at 24.)

Postmaster Whalen asked Mrs. Trojecki to sit in a chair and Mrs. Trojecki then told Postmaster Whalen what had occurred and that there should have been a mat on the floor. Postmaster Whalen then directed someone, "[g]o put a mat on the floor before someone else falls." (Id. at 25.) She then asked about the Plaintiff's injuries. Mrs. Trojecki removed her coat and found that her elbow was bleeding and her hand was scraped. Her coat and pants were wet and dirty, whereas they had been dry and clean before she entered the post office.[5] (Id. at 26.)

Postmaster Whalen asked Mrs. Trojecki if she was all right and if she would give her permission to take photographs of her person. Mrs. Trojecki consented and replied that she was all right, but wanted to leave the premises by another exit, not through the main door at which she had fallen. She was embarrassed that she had fallen and did not "want to go back in front of all those people." (Id.) After Postmaster Whalen took photographs of Mrs. Trojecki, she left through an employee entrance which had a blue floor mat positioned inside the door. (Id. at 27.) Mrs. Trojecki then got into her car and drove back to work. She did not see a warning cone at the front entrance of the post office either at the time that she entered or at the time that she left. (Id. at 24.)

Photographs of the scene taken by Postmaster Whalen after Mrs. Trojecki's fall show a sidewalk leading to the front entrance of the post office generally clear of snow and ice with some small darker patches in front of and to the side of the entrance. (Id. at 28.) Postmaster Whalen's December 21, 2009 photographs of the vestibule floor show a metal grate with narrow slats alternated by narrow spaces between the metal slats. The vestibule floor appears smooth in character, which was consistent with the Court's view of the premises on June 11, 2013. (Id. at 29-30.)

At the request of Postmaster Whalen, Mrs. Trojecki provided a written statement later on the day she fell. (Id. at 31.) The statement relates the circumstances of her fall and discusses her injuries, including details that her skin was broken on her right elbow and her right hand was bruised with a small blood blister. She also reported that both of her wrists, her hip and knees were sore and that her whole body felt a little "banged up." (Id. at 32.) Most of Mrs. Trojecki's pain was on the right side of her body including her arm, hip and shoulder.[6]

B. Liability.

Mrs. Trojecki fell in the vestibule of the Downingtown Post Office building, which is an area between the outside and inside doors leading to the post office lobby.[7] The Defendant presented evidence that the vestibule floor consists of metal horizontal grating which Defendant's expert says is designed to prevent the collection of water on the vestibule floor. (Id. at 122.) All customers entering or leaving the Downingtown Post Office must cross through the vestibule. (Id. at 124.)

Over the weekend of December 19 and 20, 2009, the Downingtown area sustained a heavy snowstorm with between eighteen (18) and twenty-one (21) inches of snow. On the morning of December 21, 2009, snow was plowed from the Downingtown Post Office parking lot before the post office opened for business. (Id. at 79.) Snow was also shoveled from the sidewalks and ice melt was placed on the pavement surfaces. In addition, the custodian on duty mopped and vacuumed the post office lobby at various times throughout the day until approximately 12:30 p.m., when her shift ended. (Id. at 137-147.) A yellow sign which indicated a possible wet floor and carpet runners were placed in the lobby area inside the post office on December 21, 2009. (Id. at 147.) The defendant, however, admits that the vestibule floor consisted of a bare metal grate and no carpets were placed within the vestibule between the outside and inside lobby doors on December 21, 2009 prior to Mrs. Trojecki's fall.

Mrs. Trojecki presented the testimony of John Steven Posusney, P.E., a licensed civil structural engineer. (Id. at 153.) The Court found that Mr. Posusney's testimony met the requirements of Federal Rule of Evidence 702[8] and that his testimony was credible. Mr. Posusney noted that the walking surface of the vestibule was a smooth metal surface. He opined that once such a surface is contaminated by introducing snow or water from a person's footwear, such a condition will severely diminish attraction or slip resistance. (Id. at 158-159.) In reaching his conclusion, Mr. Posusney noted that the grate surface in the vestibule of the Downingtown Post Office was relatively smooth with no serrations or abraded treatment to render the surface slip resistant under wet conditions. (Id. at 162.) Mr. Posusney concluded that the vestibule surface would be hazardous and dangerous to walk on when wet because of its smooth, hard surface without any abrasions or serrations. (Id. at 165.) To further illustrate his conclusion, Mr. Posusney noted that June 10, 2013, the day he appeared to offer his trial testimony, was a rainy day. Mr. Posusney also noted that the vestibule in the United States Courthouse and Federal Building in Allentown, Pennsylvania is very similar to the vestibule in the Downingtown Post Office. He noted, however, that the Courthouse vestibule has "an inlaid floor mat which had a carpet-like or pile such that it essentially would remove wetness from a person's footwear and render that surface - or render the surface in entering the building to be slip resistant under rainy or wet conditions...." (Id. at 167.) Mr. Posusney noted that the Downingtown Post Office floor was designed as an open grate surface with slits so that water could drain from the surface. (Id. at 170.) Nevertheless, he concluded that the "non-air voided" metal surface was smooth and hard. (Id.) Since it was "devoid of any abrasions, any serrations, " when it was wet, it would create a condition with "severely diminish[ed]... traction...." (Id. at 170.) Mr. Posusney further opined that under wet conditions, it would be reasonable to provide a mat over such surfaces with severely diminished traction as the vestibule in the Downingtown Post Office. (Id. at 174.) He further noted that the placement of a warning sign is the least effective method of protecting the public since it does not actually remove the dangerous condition. (Id. at 173-174, 205-206.) Based upon these opinions and his personal observations, Mr. Posusney concluded that the condition of the vestibule in the Downingtown Post Office was foreseeably hazardous or dangerous, and that the walking surface was inherently dangerous when wet. (Id. at 177.) He further indicated that, although there appeared to be no evidence of prior reported falls for thirteen (13) years[9] prior to Mrs. Trojecki's fall on December 21, 2009, it was his opinion that the danger remained clear because the slatted floor did not meet the qualitative standards for a slip resistant walking surface when wet. (Id. at 189.) He noted that the metal grating in the floor was to avoid surface flow of water by having a drain into the particular grate, but that, in fact, did not stop the smooth surface from being dangerous when it was not dry. (Id. at 204.)

The Defendant presented the testimony of Robert J. Cohen, P.E., a licensed civil engineer, as an expert with regard to professional engineering and walking surface safety. (Id. at 223-224.) The Court found that Mr. Posusney's testimony met the requirements of Federal Rule of Evidence 702. Mr. Cohen was called as a witness for the purpose of offering his opinion concerning the safety of the grating. (Id. at 225.) He explained that the slip resistance of a surface is the walking coefficient of friction. (Id.) Slip resistance can be measured. (Id.) In 1940, Sidney James of Underwriters Laboratories, developed the James Machine for the purpose of testing a floor tile to determine whether it had a 0.5 coefficient of friction and if it did, "people didn't slip and fall." (Id. at 226-227.) The 0.5 coefficient of friction became the standard measure of slip resistance. (Id. at 227.) Later refinement of this analysis in the 1970s when "force plate analysis" began, measured actual slip resistance and found that slipping commenced during walking at a coefficient of friction of 0.35 and below, which was also known as a hazard level. (Id. at 227.) The factor of safety was up to 0.5, which was a maintenance level. (Id.) It was Mr. Cohen's opinion that the metal grating of the vestibule was a "slip-resistant surface for walking when wet." (Id. at 228.) He further opined that the metal grating in the vestibule did not expose Mrs. Trojecki to a slip hazard and was not a cause of her fall. (Id.) He further opined that a mat was unnecessary to cover the metal grating in the vestibule of the Downingtown Post Office. (Id. at 228, 243.) He did not give an alternate opinion as to what may have caused her fall. He stated that the purpose of the grate was to allow "any moisture to drain, any dust or debris to drop through, so that the walking surface stays clean." (Id. at 229.) He indicated that a thin film of water can accumulate on the top of this metal grating. (Id.) He testified that the metal grate at the Downingtown Post Office is a design which he has seen in many other buildings. (Id. at 230.) In reaching his opinion, he considered the fact that Mrs. Trojecki entered the post office through the vestibule without any difficulty, as did other patrons on December 21, 2009. (Id. at 234.)

Mr. Cohen tested the vestibule surface of the Downingtown Post Office under both wet and dry conditions using a tribometer, which is intended to replicate shoe sole material in testing for the coefficient of friction. (Id. at 234-236.) He found the friction coefficient to be 0.5 or greater, thereby concluding that the grating was a slip resistant surface for walking, whether it was dry or wet. (Id. at 234-236.) Mr. Cohen disagreed with the conclusions of Mr. Posusney. Mr. Cohen opined that a grip strut, which is an "up-set metal grating" is a metal grating with very sharp projections, and was not an appropriate application for the Downingtown Post Office vestibule because although grip strut has some industrial applications and is good for persons wearing work boots, the surface could catch certain heels, could tear skin or cause a person to require stitches from a fall onto it. (Id. at 242.) Mr. Cohen also disagreed with Mr. Posusney's opinion that adhesives on the metal grating were necessary. (Id.) In essence, Mr. Cohen opined that no further modification of the grated vestibule floor in the Downingtown Post Office was necessary because it was a slip resistant surface in the condition it was in, and based upon his tests, there was no other surfacing materials required. (Id. at 242.) Mr. Cohen admitted that the grading was wet at the time the plaintiff fell, but repeatedly stated that the grating was safe because it was slip resistant, in accordance with his testing. (Id. at 242-243, 256-258.)

Patricia L. Whalen was the Postmaster of the Downingtown Post Office on December 21, 2009, a position she has held since 1997. (Id. at 99.) Normally, two custodians are assigned to the facility. (Id. at 103.) On December 21, 2009, neither custodian was present on the premises at the time of Mrs. Trojecki's fall at approximately 2:30 p.m. (Id. at 103-104, 135.) One custodian was on vacation that day. (Id. at 103.) Carol Kay, the other custodian, worked on December 21, 2009 until about 12:00 or 12:30 p.m. (Id. at 104, 135) When Mrs. Trojecki fell, Postmaster Whalen prepared and filled out an accident report, as she was required to do within twenty-four hours following the accident. (Id. at 104, 105; Pl.'s Ex. P-2.)[10] Although the accident report form provided blocks for information related to surface, surface conditions, circumstances leading to the injury or damages, item causing the actual injury or damages, hazardous situation or defective or hazardous equipment, these blocks were not filled out by Postmaster Whalen. (N.T., 6/10/13, pp. 107-108.) Nevertheless, she provided answers in her testimony at trial.

Postmaster Whalen indicated that it would have been appropriate for her to note that the surface condition of the vestibule was wet. (Id. at 109.) She noted in the narrative portion of the report that "[t]he accident occurred on the Monday following a 23-inch snowfall from the weekend. The customer traffic was very heavy due to the upcoming holiday. The melting snow and ice was being tracked in." (Id. at 108.) With regard to the block which dealt with circumstances leading to injury or damage, Postmaster Whalen testified that she would have coded that portion of the report with "falls on same level, floors." (Id. at 109-110.) The report also asked for information concerning whether there was a hazardous situation directly related to the accident. While Postmaster Whalen did not fill in that block on the accident report, she indicated at trial that, based upon the information provided by Mrs. Trojecki on December 21, 2009, she would have noted that it was a "slippery or uneven surface" at the time she completed the accident report.[11] (Id. at 111.) Postmaster Whalen noted that Mrs. Trojecki told her that the floor was slippery and no other witnesses present at the time contradicted or rebutted that information. (Id. at 112.) She further testified that there were no unsafe personal factors regarding Mrs. Trojecki at the time of her fall. (Id. at 113.) In a narrative portion of her report, Postmaster Whalen wrote:

On Monday, December 21, 2009, at approximately 2:35 P.M., Mrs. Linda M. Trojecki, a postal customer, slipped in the lobby vestibule area while attempting to exit the lobby. Mrs. Trojecki states that the metal grate on the floor in the vestibule was wet and when she turned slightly to the right, her feet slipped out and she fell to the floor (grate), with most of ...

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