Halliday v. US Postal Service

2012 DNH 123

• Court: District Court, D. New Hampshire
• Decided: July 13, 2012
• Docket: 10-CV-535-SM
• Status: Published

Opinion

Case l:10-cv-00535-SM Document 58 Filed 07/13/12 Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Judith C. Halliday, Plaintiff

v.

United States of America, and Done Right Building Services, Inc., Defendants Case No. 10-cv-535-SM Opinion No. 2012 DNH 123

United States of America, Cross-Claimant

Done Right Building Services, Inc., Cross-Defendant

O R D E R

This is a premises liability case involving a slip and fall

with resulting injuries that occurred on federal property.

Plaintiff alleges that she slipped on a wet floor in a post

office located in the T. J. McIntyre Federal Building in

Portsmouth, New Hampshire. She says the wet floor posed a

hazard, rendering the premises unsafe, and claims the owner knew

or should have known of the hazard and remedied it, as well as

warned of its existence. Because the hazardous condition was

neither remedied nor warned against, and she was injured when she

slipped on the wet floor, she seeks damages against the United

States (as owner) and Done Right Building Services, Inc. ("Done

Right"), an independent contractor to whom the government fully Case l:10-cv-00535-SM Document 58 Filed 07/13/12 Page 2 of 4

delegated maintenance and safety responsibilities with respect to

the premises.

Previously, the court denied the government's motion to

dismiss the plaintiff's Federal Tort Claims Act cause of action

on grounds that the complaint, construed favorably to plaintiff,

asserted independent claims of government-employee negligence.1

Discovery is complete and both the government and Done Right move

for summary judgment.

The government points out, without contest, that by contract

it delegated all premises maintenance and safety obligations to

Done Right, and so cannot be held liable, vicariously or

otherwise, for injuries resulting from the failure to properly

maintain the premises in a safe and reasonable manner. In other

words, it says that plaintiff's slip and fall, if due to the

negligence of anyone, was due to the negligence of its

independent contractor. Accordingly, invoking both the familiar

independent contractor defense and the discretionary function

exception, the government says it is immune from FTCA liability

1 "Plainly, the United States is not liable for the acts or omissions of its independent contractor (improper maintenance, etc.), and it may be that plaintiff's independent claims of negligence against federal employees will prove fatally weak, but at this stage, the complaint does purport to assert negligence claims against federal employees distinct from those asserted against the independent contractor. See, e.g.. Miller v. George Arpin & Sons, Inc., 949 F. Supp. 961 (D.R.I. 1997). Order, May 6, 2011, doc. no. 12."

2 Case l:10-cv-00535-SM Document 58 Filed 07/13/12 Page 3 of 4

in this case. See United States v. Orleans, 425 U.S. 807, 815

(1976); Wood v. United States. 290 F.3d 29, 36 n.4 (1st Cir.

2002); Carroll v. United States, 661 F.3d 87 (1st Cir. 2011).

Plaintiff has produced no evidence, nor has she advanced any

pertinent argument sufficient to establish the breach of a duty

owed her by any government employee distinct from the delegated

premises maintenance and safety responsibilities.

Accordingly, substantially for the reasons given in the

government's supporting memorandum of law, and as fully explained

in Carroll. supra, plaintiff's Federal Tort Claims Act cause of

action is dismissed as barred by the independent contractor

defense and the discretionary function exception.

Done Right's Motion

Little discussion is required with respect to Done Right's

motion for summary judgment for this is a straightforward case of

summary judgment being unavailable due to the existence of

genuine disputes as to material facts. Plaintiff has proffered

admissible evidence from which a finder of fact could supportably

determine that: The post office floor posed a serious hazard to

her in that it was wet and slippery; that it had been in that

condition for some time; that it had also been in that condition

in the recent past, which resulted in other patrons slipping and

falling - thus putting Done Right on notice of a continuing risk

3 Case l:10-cv-00535-SM Document 58 Filed 07/13/12 Page 4 of 4

of injury; that the cause of the wet floor was a known periodic

leak from an air conditioning unit; and that plaintiff slipped on

the wet floor, fell, and fractured her ankle, resulting in

physical injury, pain, suffering, and economic loss.

That Done Right challenges the precise location of the slip

(on an allegedly dry area of the floor) and fall (onto the wet

area) does little to undermine the sufficiency of plaintiff's

evidence to withstand summary judgment. Construing the record in

plaintiff's favor, the party opposing summary judgment, it is

plain that a fact finder could return a supportable verdict for

her.

Conclusion

The government's motion for summary judgment (document no.

28) is granted. Done Right's motion for summary judgment

(document no. 2.6) is denied.

SO ORDERED.

Stzeven J./McAuliffe United States District Judge

July 13, 2012

cc: John K. Bosen, Esq. David J. Donovan, Esq. Robert J. Rabuck, AUSA