Dominguez v. United States

963 F.Supp.2d 107

Josephina DOMINGUEZ, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil Action No. 3:11–CV–01096 (VLB).

United States District Court, D. Connecticut.

Aug. 9, 2013.

Louis J. Bonsangue, Philip D. Russell, Philip Russell, LLC, Greenwich, CT, for Plaintiff.

Brenda M. Green, U.S. Attorney's Office, Bridgeport, CT, for Defendant.

MEMORANDUM OF DECISION DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Dkt. # 48] AND DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION

VANESSA L. BRYANT, District Judge.

I. Introduction

The Plaintiff, Josephina Dominguez (“Dominguez”), brings this negligence action grounded in premises liability for monetary relief against the Defendant United States of America (“United States”) pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), in recompense for injuries she sustained when she allegedly slipped and fell on snow and/or ice which had accumulated in an outdoor walkway area at the Federal Correctional Institution in Danbury, CT. Currently pending before the Court is the Defendant's Motion for Summary Judgment. For the reasons that follow, the Defendant's Motion for Summary Judgment is DENIED, and this case is DISMISSED without prejudice for lack of subject matter jurisdiction.

II. Factual Background

As an initial matter, the Court notes that both the Defendant's and the Plaintiff's recitations of facts in the Motion for Summary Judgment and the opposition at times do not comport with the evidence to which the parties cite, and the same is true for the parties' Local Rule 56 statements. Where a party has failed to support an asserted fact with evidence from the record, the Court will not consider the assertion to be fact. D. Conn. L. Civ. R. 56(a)3 (each statement of material fact in a Local Rule 56(a)1 or Local Rule 56(a)2 statement, as well as each denial in a summary judgment opponent's Local Rule 56(a)2 statement, “must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial.”).

The following facts relevant to the Defendant's Motion for Summary Judgment are undisputed unless otherwise noted. The Defendant United States operates a Federal Correctional Institution in Danbury, CT (“FCI Danbury”). The Plaintiff, Josephina Dominguez, has been an inmate at FCI Danbury since February 27, 2006. [Dkt. 48–2, D's 56(a)1 Stmnt. ¶¶ 1, 2]. Since August 2006 Dominguez has worked for UNICOR, which is located on FCI Danbury's property, five days per week. [Dkt. 48–2, D's 56(a)1 Stmnt. ¶¶ 4, 5]. Ms. Dominguez has estimated that approximately 100 inmates worked at UNICOR, all of whom walk to work together each day. [Dkt. 52–1, Dominguez Depo. p. 13(4/8) ]. According to Bruce MacGregor, the Facility Manager for FCI Danbury, approximately 500 inmates walk around 7:30 each workday morning to UNICOR and to a second employer through the rear gate area where Ms. Dominguez fell. [Dkt. 52–2, MacGregor Depo. pp. 43, 46–47 (11, 14–15/21) ].

On January 8, 2010 ¹ at approximately 7:30 a.m. Ms. Dominguez alleges that while walking to work on the travel route designated by the Defendant, she slipped and fell on an accumulation of ice and snow which had covered an outdoor walkway, causing fractures in the bones of her left hand with non-union healing. [Dkt. 1, Compl. ¶¶ 6, 10]. Dominguez testified as to the weather conditions on the day of her fall as follows:

Oh, that day, the weather, it was snowing. It had been snowing hard for a number of days .... Yes, [it was actually snowing when I fell] because I was there for a while. I couldn't even get up [from the ground] because this bone was over here. And by the time they got me up, I had snow all over my head because it was snowing out. It was snowing heavily.

[Dkt. 52–1, Dominguez Depo. p. 16(5/8) ]. As to her fall, she testified: “I don't know [how I fell]. I was just walking along, and before I knew it, I had fallen because in that patch it was icy. There was ice there. It wasn't just snow.” [Dkt. 52–1, Dominguez Depo. p. 16(5/8); Dkt. 48–2, D's 56(a)1 Stmnt. ¶ 11]. Ms. Dominguez recalled that when she fell there were people to her front, to her back, to her right and to her left, all walking together to work. [Dkt. 52–1, Dominguez Depo. p. 17(6/8) ]. When asked whether anyone in the group talked about the condition of the pavement on the morning of her fall, Ms. Dominguez responded

Yes. Everyone was talking about the fact that it hadn't been cleared. It was slippery. All of the others were saying, Oh, you know, look, it's slippery, there is a lot of ice, it hasn't been cleared.... No, [the pavement] wasn't cleared. And it was—it had been snowing for days. Days.

[Dkt. 52–1, Dominguez Depo. pp. 17–18 (6–7/8) ]. Dominguez recalled that she saw “quite a bit of ice” on the pavement but did not recall whether there was also snow on the ground. [Dkt. 52–1, Dominguez Depo. p. 18(7/8) ]. No other slip and fall accidents were reported on January 8, 2010 in the area where Ms. Dominguez fell. [Dkt. 48–2, D's 56(a)1 Stmnt. ¶ 6; Dkt. 52, P's 56(a)2 Stmnt. ¶ 6; Dkt. 48–12, MacGregor Depo. p. 94].

Both parties have submitted a National Weather Service “Record of River and Climatological Observations” for Danbury, CT for the month of January, 2010 (“Weather Record”), which indicates precipitation levels for each day of the month.²[Dkt. 48–10, Weather Record]. It appears, however, that both parties have incorrectly read the data contained in this Weather Record. As such, the Court looks directly to the Weather Record data rather than to the parties' characterizations of it. The Weather Record reveals that on January 3, 2010, 2.6 inches of snow or ice pellets had accumulated in the 24 hour period preceding an unspecified time of observation,³ 6 total inches of snow, ice pellets, hail or ice were present on the ground, and precipitation fell that day between 7:00 AM and 11:00 PM. The temperature ranged between 14 and 18 degrees Fahrenheit. No precipitation fell on January 4, which saw the temperature range between 16 and 29 degrees Fahrenheit, and 3 inches of snow, ice pellets, hail or ice remained present on the ground. On January 5 the temperate ranged between 16 and 28 degrees, trace amounts ⁴ of snow or ice had accumulated in the 24 hour period preceding an unspecified time of observation, 2 inches of snow, ice pellets, hail or ice remained on the ground, and precipitation fell between 8:00 and 9:00 PM. On January 6 and 7 no precipitation fell, no snow or ice had accumulated in the 24 hour period preceding the unspecified time of observation, and the temperature ranged between 19 and 30 degrees, and 22 and 38 degrees respectively. Two inches of snow remained on the ground on January 6, and 1 inch remained on January 7. Finally, on January 8, the day of Dominguez's fall, 1.7 inches of snow or ice pellets had accumulated in the 24 hour period preceding the unspecified time of observation, the temperature ranged from 17 to 34 degrees Fahrenheit, 2 total inches of snow, ice pellets, hail or ice were present on the ground, and precipitation fell that day between 4:00 AM and 3:00 PM, and again between 4:00 and 6:00 PM. [Dkt. 48–10, Weather Report, p. 2].

The pavement walkway area where Ms. Dominguez fell was maintained by employees of the federal Bureau of Prisons, which was responsible for snow and ice removal. [Dkt. 48–2, D's 56(a)1 Stmnt. ¶ 7; Dkt. 52–2, MacGregor Depo. p. 47 (15/21) ]. FacilityManager MacGregor testified that if there was enough snow to warrant it his staff would clear the snow from the rear gate area near the UNICOR building with a snow plow. [Dkt. 52–2, MacGregor Depo. pp. 23, 28 (4, 7/21) ]. Two FCI Danbury staff members who arrived at the Facility at 6:15 AM would “have their inmates come in at 6:15 with them and they would do a light like cleaning up, as far as like put some calcium down if they felt it was warranted;” if there was more than a light snow, the staff members would call for the snow plow.⁵ [Dkt. 52–2, MacGregor Depo. pp. 28–29 (7–8/21) ]. FCI Danbury had the ability to close certain areas due to snow or ice and to delay the inmates' work call until the areas were cleared. [Dkt. 52–2, MacGregor Depo. p. 53 (18/21) ]. Additionally, UNICOR staff could call FCI Danbury staff to delay the inmates' work call if they felt the area was not safe for walking. [Dkt. 52–2, MacGregor Depo. p. 89 (19/21) ]. Work call was not delayed on the morning of January 8, 2010. [Dkt. 52–2, MacGregor Depo. p. 90 (20/21) ]. MacGregor recalled that snow had been cleared around January 3, 2010, but could not recall whether it had snowed or whether ice had formed between that date and January 8, 2010. [Dkt. 57, MacGregor Depo. p. 92]. On January 8, 2010 MacGregor was informed that Ms. Dominguez had fallen, but upon inspection of the rear gate area MacGregor “wasn't able to see any ice or any buildup area to specify” where the Plaintiff had fallen. [Dkt. 57, MacGregor Depo. p. 93].

III. Legal Standard

Summary judgment should be granted “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). The moving party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home...