This action arose an injury allegedly suffered by the plaintiff, Brenda Payne, while using a parcel drop box at the United States Post Office in St. Matthews, Kentucky. Payne claims that the drop box posed an unreasonably dangerous risk of injury to patrons of the post office, and that the defendant, the United States Postal Service ("USPS") failed to remediate the alleged danger or to adequately warn her of it.
USPS has moved for summary judgment, urging that Payne has failed to adduce evidence identifying an unreasonable danger posed by the drop box and has not identified an inadequacy in the warning posted on the rotating barrel of the box.
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 151-60, 90 S. Ct. 1598, 16 L. Ed. 2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. At 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum & Brass Corp. V. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).
This action is brought against USPS under the Federal Tort Claims Act ("FTCA"). The FTCA grants a limited waiver of the United States' sovereign immunity, permitting tort claims against the United States "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674; Young v. United States, 71 F.3d 1238, 1241 (6th Cir. 1995). The parties agree that, in this case, the court must look to the law of Kentucky where the accident occurred to determine whether the plaintiff has a viable tort claim.
The Supreme Court of Kentucky recently reiterated that, "as a general rule, land possessors owe a duty to invitees to discover unreasonably dangerous conditions on the land and to either correct them or warn of them." Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 388 (Ky. 2010). In McIntosh, the Kentucky Supreme Court adopted the Restatement (Second) of Torts § 343A(1) which states that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Id. at 389.
Payne alleges that USPS "owed a duty to make the [Shelbyville Road post office]*fn1 safe and/or to warn of all dangers...[USPS] did not maintain the Property in a safe condition or warn of the dangerous condition present thereon...As a direct and proximate result of [USPS's] negligence, and failure to properly correct a dangerous condition it created on the Property, Ms. Payne sustained serious and permanent personal injuries..." Amend. Comp., ¶¶ 19-21. Paragraph 8 of the Amended Complaint contains the sole factual allegation concerning Payne's encounter with the drop box:
On or about June 28, 2008, Ms. Payne was injured when a steel mailbox receptacle on the Defendant's premises slammed shut on her left hand.
Discovery closed in the case. Thus USPS contends that because Payne has failed to identify an unreasonable danger presented by USPS or its drop box, she cannot establish a breach of any duty owed by USPS to her. This court agrees.
A possessor of land is liable for injuries to invitees (1) from hidden dangers which he fails to correct or of which he fails to adequately warn, and (2) from open and obvious dangers which he should anticipate will cause the harm to his invitee despite the obviousness of the risk. See McIntosh, supra. Thus, in order to determine whether USPS had a duty to Payne in this case, she must first identify a danger from which she alleges she was not protected.
In support of its summary judgment motion, USPS offered the testimony of postal worker Michael Tomes, who inspected the drop box shortly after Ms. Payne was injured. He testified that he tried to figure out how she could have slammed her finger into it, so I opened it and shut it, looked at the warning sign. And like I said, I opened it and -- and for the -- I don't see how she could have shut her finger in the [drop box]. But that -- that's what I did, I opened it and shut it and took pictures of the warning sign, and that's what occurred.
During discovery in this case, Payne answered interrogatories which asked her to describe how the incident occurred and then to state specifically all facts upon which she relies to support her claim that the USPS acted negligently. In describing the events, she stated:
On June 28 2008, Plaintiff entered the premises of Defendant's Post Office located at 4600 Shelbyville Road, Louisville, Kentucky 40207 for the purpose of depositing out-going mail. Plaintiff opened the steel mailbox receptacle by its lever handle with her right hand and placed her mail inside the mailbox with her left hand. Before Plaintiff could remove her left hand from inside the receptacle, the lever handle snapped shut on Plaintiff's left hand, which resulted in injuries to her left index finger and middle finger.
Interrog. Ans. No. 12 (DN 24-9). In stating the facts upon which she relies for her claim, she stated:
See answer to Interrogatory No. 12. As discovery is still ongoing, Plaintiff has not yet identified all facts upon which she will rely at trial to support her allegations. Furthermore, Plaintiff is not an expert on tort law in Kentucky and may present expert testimony that would be responsive to this Interrogatory. Plaintiff is available for her deposition to expand upon the facts presented, her injuries and the effect on her life.
Interrog. Ans. No. 13 (DN 24-9). Apparently, Payne has not amended nor supplemented these interrogatory answers. She did not provide any expert testimony concerning the drop box or the purported slamming incident in question.
There were no eye witnesses to the occurrence besides Payne herself. Her deposition was taken, and she gave the following testimony:
Q: When you approached the parcel drop box that day, do you remember if it was open or closed, or what position it was in?
Q: And why do you remember that?
A: Because I had to use the handle to ...