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Ferraro v. United States

United States District Court, M.D. Pennsylvania

September 29, 2014

EDWARD FERRARO and TAMMIE FERRARO, Plaintiffs
v.
UNITED STATES OF AMERICA, Defendant

MEMORANDUM

MALACHY E. MANNION, District Judge.

Plaintiff Edward Ferraro had a contract to provide the vending machines for the United States Postal Service facility on Stafford Avenue in Scranton, Pennsylvania. In January 2009, when he was delivering items for the vending machines in the post office, he parked his pickup truck near the rear of the facility's parking lot. After parking his car, he removed an item for delivery from the bed of his truck, and, after taking a step or two, fell onto his lower back. Plaintiff argues that the fall and his resulting injuries were caused by the failure of defendant to properly maintain the parking lot and keep it clear of ice and snow. Defendant disputes its liability, arguing that there is no indication that accumulated snow and ice caused the fall or that it had notice that the lot was in a dangerous condition. Plaintiffs moved for summary judgment as to liability on their claims for negligence and loss of consortium[1] brought pursuant to the Federal Tort Claims Act. For the following reasons, the motion is DENIED.

I. BACKGROUND[2]

Plaintiff Edward Ferraro had a contract to supply the vending machines at the United States Postal Service ("USPS") complex on Stafford Avenue in Scranton, PA. On January 22, 2009, plaintiff arrived at the facility to stock the vending machines. He backed his truck into a parking spot at the rear of the building and got out of his car. He lifted a case of water bottles from the back of his truck, took a step or two, and then fell onto his back and buttocks. Plaintiff was unable to get up from the ground, move from the parking lot, or walk. Plaintiff's affidavit states that while he was lying on the ground after his fall, he could see the patch of snow and ice on which he had slipped, and observed numerous footprints and indentations in the snow patch. (Doc. 36-1, at 20). A USPS worker discovered plaintiff on the ground and ran to get help from other workers at the facility. An ambulance took plaintiff to the hospital shortly after his fall.

The USPS facility where the accident occurred is very large, with hundreds of parking spaces and hundreds of thousands of square feet taking up more than 19 acres. When looking at photographs of the parking lot where the accident occurred, plaintiff and several USPS employees were unable to say with certainty at which particular spot plaintiff fell. Frederick Lidle, [3] an employee of the USPS, wrote in the accident report that there were "slippery conditions in parking lot" at the time of the accident, and that it had been "very cold over 2 week period. [S]now, freezing rain on and off." He also noted in the report that plaintiff parked in an area used for storing unused equipment and recycling, not in his usual parking spot. (Doc. 36-1, at 39). He testified that he asked plaintiff what had happened, and plaintiff responded that he had slipped on ice and fallen. (Doc. 41, at 32).

Douglas Baxter, the manager of maintenance at the facility, testified that sometimes snow fell off of vehicles in the parking lot after the lot had been cleared by the USPS maintenance crew. Looking at photographs of the scene of the accident, he stated that because the lot had been cleared in other places, he opined that the snow near plaintiff's car had fallen off of a vehicle. (Doc. 41, at 23). He was away at a conference on the day of the accident, and so did not inspect the area where plaintiff fell. He testified that the maintenance crew has a large salt spreader and plow. They use the salt in the parking lots, and also try to keep the roadways clear of snow. ( Id., at 17). He stated that snow removal is a top priority of the crew and that if snow was reported, it would be taken care of immediately, or within thirty minutes or so. ( Id., at 18). While his crew made efforts to treat areas where water was known to accumulate or where snow piled up, he stated that it was not necessarily a violation of policy for some snow to remain, because it was simply not possible to always clear all of the snow. ( Id., at 19). He also opined that the photos of the area plaintiff fell showed that salt had been applied to the snow. ( Id., at 21). He further stated that he could see footprints in the snow, but did not know how long the snow had been in the parking lot. ( Id., at 23).

Andrew Bethel, another USPS worker, testified that after plaintiff was taken away in the ambulance, he went looking with Mr. Lidle to see how the accident had occurred, and saw a patch of ice which he assumed caused the accident. (Doc. 41, at 27).

The maintenance shift managers for the facilities also gave depositions in the case. While plaintiff represents that each of these three shift managers testified that the patch of snow and ice in question should have been cleared, the depositions excerpts are less clear. The excerpt of shift manger Richard Dickson, (Doc. 36-1, at 22), contains the question "[w]ould that have been something that should have been removed in your opinion, that snow, ice, whatever you're calling it?" Mr. Dickson replied, "Yeah, if it was there. I mean, you know, yes, it should have been removed." He stated that he did not know how long the snow had been there. (Doc. 41, at 55). He also stated that employees would fill out sheets documenting their maintenance tasks and the amount of time it took to complete those tasks. (Id.). While he noted that there were safety committees at the facility, he did not know how often they addressed snow removal. (Id.).

Bernie Smicherko, another shift manager, referencing some photos of the parking lot he was shown during his deposition, testified that if the snow and ice in the parking lot "was there over a day, " then failure to remove it would violate standard operating procedure. (Doc. 36-1, at 32). He further stated that if it were not removed for a day or more, his manager would be asking him about it. (Id.).

Shift supervisor John Lowe, answering questions about some photos of the parking lot where plaintiff fell, testified that the patch of snow and/or ice in the area where plaintiff had fallen looked as thought it had already been salted. (Doc. 36-1, at 26). When asked if that ice or snow should have been removed, he stated that it depended on how long the snow had been there after the snow had fallen, but that it should not have been left there for more than twenty-four hours. (Doc. 41, at 50). He also stated that the area where plaintiff parked was used mostly as storage space, but that he assumed it looked like parking spaces to an observer. ( Id., at 49).

The record contains a report of the National Oceanic and Atmospheric Administration ("NOAA"). (Doc. 36-1, at 69-77). It shows the precipitation at the Wilkes-Barre/Scranton International Airport, located a few miles from the Stafford Ave. USPS location, on the day of and days preceding plaintiff's fall. The report reflects that trace amounts of snow fell late on January 20 and midday on January 21, with no snow falling thereafter until plaintiff's fall on the 22nd.

Plaintiff retained John Allin, an expert in snow removal, to write a report in this case. (Doc. 36-1, at 41-67).[4] The report opines, based on a review of the depositions and records kept by the USPS, that the Stafford Avenue facility did not have a snow response plan to address accumulations of snow and ice. Particularly, he opines that the record keeping and plans regarding snow removal were inadequate. He further opines that there was a failure to properly inspect the premises, as the snow had clearly accumulated and that someone inspecting the area should have applied enough salt or other deicing product to remove it.

Plaintiffs filed this suit for negligence and loss of consortium pursuant to the Federal Tort Claims Act. 28 U.S.C. ยง1346. A bench trial in the case ...


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