The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PAIK VERA,
Plaintiff,
DECISION AND ORDER
-against-
17 Civ. 10132 (PED)
UNITED STATES OF AMERICA,
Defendant.
□□ tne enema neem
PAUL E. DAVISON, U.S.M.J.
Plaintiff Patrick Vieira alleges that, on May 20, 2014, he was walking down cement stairs □
on the loading dock of a building located on the campus of the United States Military Academy
at West Point (“USMA”), when the stairs crumbled beneath his fect and caused him to fall. He
claims that he lost consciousness and sustained injuries, including an injury to his lumbar spine
which required surgery to repair. Plaintiff commenced this action pursuant to the Federal Tort
Claims Act (“FTCA”), seeking damages against the United States of America for its alleged
negligence as property owner, This case is before me for all purposes on the consent of the
patties, pursuant to 28 U.S.C. §636(c) (Dict. #9).
By Decision and Order dated November 5, 2018 (Dkt. #26), familiarity with which 1s
presumed, this Court denied defendant’s motion to dismiss for lack of subject matter jurisdiction.
In sum, defendant argued that plaintiff's tort claim is subject to the discretionary function
exception (and thus barred by sovereign immunity) because the USMA has discretion to
determine the priority of any structural repairs. I found that defendant had “sufficiently
demonstrated that prioritizing Work Orders at the West Point campus is clearly a discretionary
function based upon policy considerations of operational needs, regulatory mandates and
available funding.” Dkt. #26, at 6-7. I concluded, however, that plaintiffs negligence claim
would not be barred by the discretionary function exception if plaintiff established that
defendant: (1) failed to inspect Building 845 and/or to generate a Work Order for
renovation/repair of its loading dock; or (2) failed to warn plaintiff about the loading dock’s
condition. Id. at 7-9,
Presently before this Court is defendant’s motion for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant’s
motion is GRANTED IN PART.
A. Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A fact is material within the meaning of Rule 56 where it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute about a material fact is “genuine” when “the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Id. at 248. In determining whether the moving
party has met its burden of proving that there are no genuine disputes of material fact, the court
must resolve all ambiguities and draw all factual inferences tn favor of the party opposing the
motion, See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “Assessments of
credibility and choices between conflicting versions of the events are matters for the jury, not for
the court on summary judgment.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir,
2005).
2.
Where “the nonmoving party bears the burden of proof at trial, summary judgment is
warranted if the nonmovant fails to make a showing sufficient to establish the existence of an
element essential to [its] case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (alteration in
original) (quotation and citation omitted), Thus, “[a] defendant moving for summary judgment
must prevail if the plaintiff fails to come forward with enough evidence to create a genuine
factual issue to be tried with respect to an element essential to its case.” Allen v. Cuomo, 100
F.3d 253, 258 (2d Cir. 1996). On the other hand, summary judgment must be denied if the court
finds “there are any genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” See Anderson, 477 U.S. at
250.
B. Failure to Inspect and/or Initiate a Work Order
It is undisputed that a USMA liaison officer was on site at Building 845 five days a week,
and that the liaison officer’s duties included carrying out inspections of the building. It is also
undisputed that Penn employees could report issues to the liaison officer, who would submit
work orders to USMA. Further, the parties agree that two work orders were, in fact, initiated for
repairs to the loading dock stairs: one in April 2012 and one in August 2013. Dkt, #40-1, #40-2.
The details of those repairs are also not in dispute: (1) from April 17, 2012 to April 23, 2012,
fifteen hours of masonry work was performed pursuant to a work order to address broken
concrete; (2) on August 21, 2013, one hour of masonry work was performed pursuant to a work
order stating “pieces of concrete/plaster falling off loading dock in huge chunks (12"x8") area
eroding getting worse[.]” Id.
Defendant also proffers the affidavit of Anthony Delfini (DPW Engineer Technician at
-3-
West Point), Dkt. #40. According to Mr. Delfini:
In August 2013, another work order was initiated for additional masonry
work on top of that previously completed in April 2012, as the area in question
was continuing to erode with pieces of concrete falling off... . [O]nly about an
hour of labor was available to be carried out at this time and total repair of the
loading dock stairs was incomplete.
Because there were limited funds available to cover all work orders across
West Point, the repair work to the loading dock stairs was not able to be
completed until funding for a contract was awarded earlier this year. The loading
dock stairs were replaced as of May 2019.
Id. at ff 6-7.
Based upon the evidence above, defendant argues that the discretionary function
exception applies because “the facility was in fact inspected and work orders were initiated for
the loading-dock steps at issue prior to [p]laintiff's alleged accident in May 2014.” Dkt. #38, at
2 (emphasis in original). Plaintiff responds:
Although Mr. Delfini avers via his declaration that the project was “incomplete,”
there is no basis to determine from the evidence submitted that inspections were
made or work orders generated between the August 2013 repairs and the date of
the accident. There is no evidence of a discretionary budgeting decision to leave
work incomplete, e.g., a work order placed in August 2013, but marked for
completion at some later date due to prioritization of other projects, or a work
order modified to delineate piecemeat elements of a restoration project until
completion over a course of time. To the contrary, the work orders indicate that
the work was complete. And in the interim between completion and Mr. Vieira’s
accident, there is no evidence of inspection or generation of work orders. The
next work order was awarded in January 2019.
Dkt. #44-2, at 3-4, Lagree. Based upon the record evidence, a reasonable jury could conclude
that defendant failed to inspect the loading dock (either before or after the August 2013 repairs)
and failed to initiate a work order to repair or replace the loading dock stairs between August
2013 and the date of plaintiff’s accident. Accordingly, defendant is not entitled to summary
judgment on plaintiffs claim grounded upon defendant’s failure to inspect and/or to initiate a
work order.
_4.
C. Failure to Warn
“Under New York law, landowners and business proprietors have a duty to maintain their
properties in reasonably safe condition. In addition, New York law imposes a duty to warn
where a person could not reasonably be expected to anticipate a dangerous condition.” Bailey v,
Seaboard Barge Corp., 385 F. Supp.2d 310, 314 (S.D.N.Y. 2005)(citations omitted).' Here,
defendant asserts—and plaintiff does not dispute—that throughout his employment with Penn,
plaintiff “was aware that the docks at Building 845, including the one at which he was allegedly
injured, were ‘decrepit’ and ‘falling apart,’ with ‘pillars rotted out.’” Dkt. #39, § 16, #44-1, at 3.
Thus, defendant argues: “given [p]laintiff’s conceded actual knowledge of the alleged hazard, as
a matter of law, he may not assert that the Government is liable for his alleged fall based on a
failure to warn.” Dkt. #38, at 9.
Plaintiff argues, “notwithstanding the fact that Mr. Vieira knew of the condition of the
stairs,” that his failure to warn claim is viable because “the defendant provided no alternative
means of ingress or egress to access his truck, which access was necessary to the performance of
his job functions.” Dkt. #44-2, at 5-6. In support of this contention, plaintiff cites Comeau v.
Wray, 241 A.D.2d 602, 659 N.Y.S.2d 347 (3d Dep’t 1997). In Comeau, a deliveryman sued the
property owners after falling on the stairs leading to the root cellar, Id, at 602-03. The property
owners (who were aware of the deteriorating condition of the stairs and knew plaintiff had to go
into the cellar) moved for summary judgment on the ground, inter alia, that they had no duty to
' Because waiver of sovereign immunity occurs “under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred],| [28 U.S.C. § 1346(b)(1)], the FTCA directs courts to
consult state law to determine whether the government is liable for the torts of its employees.”
Liranzo v. United States, 690 F.3d 78, 84-86 (2d Cir.2012) (citation omitted),
5-
warn plaintiff because he was fully aware of the stairs’ defective condition. Id. at 603. The
Third Department rejected that argument, stating that the property owners “overlook the rule that
landowners, who have or should have reason to expect that persons will find it necessary to
encounter the obvious danger, owe a duty of reasonable care to either warn such persons of the
danger or to take other reasonable steps to protect them from it.” Id, (citation omitted).
Here, in reply, defendant argues that plaintiff proffers no evidence that he lacked other
means of ingress and egress to carry out his job function — in other words, that he had no choice
but to use these particular steps. Dkt. #45, at 5. Defendant also notes that plaintiff testified, at
deposition, that Building 845 had three operational loading docks, Dkt. #46-1, at 3-4.
Defendant is correct: apart from plaintiffs conclusory assertion, there is no record evidence
from which a reasonable jury could infer that plaintiff had no choice but to utilize the loading
dock at issue in order to perform his job duties. Thus, given that plaintiff concedes actual
knowledge of the alleged hazard, defendant is entitled to summary judgment on plaintiff's claim
grounded upon defendant’s failure to warn.
CONCLUSION
Accordingly, defendant’s motion for summary judgment is GRANTED IN PART, to the
extent that plaintiff's claim based upon defendant’s failure to warn is dismissed, and DENIED
as to plaintiff's claim based upon defendant’s failure to inspect and/or to initiate a work order.
The Court will conduct a telephone conference on Friday, January 17, 2020 at 11:00 a.m.
_6-
The Clerk of the Court is respectfully requested to terminate the pending motion (Docket
437).
Dated: December 17, 2019 _ SO ORDERED. . Se
White Plains, NY x Cerf eet
PAUL E, DAVISON, U.S.M.J.
-J-