Harrison v. United States, 17-cv-5049 (ARR) (VMS)

Susan Harrison, Plaintiff, v. United States of America, Defendant.

17-cv-5049 (ARR) (VMS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 22, 2019

Not for print or electronic publication

Opinion & Order

ROSS, United States District Judge:

Plaintiff Susan Harrison is suing the United States, alleging that an employee of the United States Postal Service pushed a mail cart into her leg. She claims that this court has jurisdiction pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 (2018), and that her claim arises under § 2674 (providing for the liability of the United States) and § 2679 (providing for the exclusiveness of the Federal Tort Claims Act remedy). See Am. Compl. ¶¶ 13, 15-21, ECF No. 2. The government has moved for summary judgment, and the plaintiff opposes. For the reasons set forth below, the government's motion for summary judgment is denied.

BACKGROUND

On December 10, 2016, the plaintiff, Susan Harrison, was leaving her home on her way to her tutoring job when she saw a mail carrier approaching. See Harrison Dep. Def.'s Ex. D 53:8-19, ECF No. 26 ("Def.'s Ex. D"). According to Harrison, she stopped and stood in front of the building next door to wait for her mail. See id. at 53:14-20; Def.'s Rule 56.1 Statement ¶ 3, ECF No. 25; Pl.'s Resp. to Def.'s Rule 56.1 Statement ¶ 3, ECF No. 29. The mail carrier—whom the plaintiff later learned was Neville Lynch—"pushed the cart directly into" her right knee, causing her knee to buckle. Def.'s Ex. D 53:21-24, 77:13, 77:17, 92:12-13; Harrison Dep. Pl.'s Ex. C 30:18-21, ECF No. 30-1 ("Pl.'s Ex. C"); Def.'s Rule 56.1 Statement ¶ 6; Pl.'s Resp. to Def.'s Rule 56.1 Statement ¶ 6. The plaintiff almost fell but ultimately did not fall to the ground. Def.'s Ex. D 98:7-16. The next day, the plaintiff's knee was swollen, and she sought emergency room treatment. Def.'s Ex. D 78:20-24. Emergency room personnel took x-rays of her knee and gave her a cane. Id. at 81:4-13, 82:3-6. She also scheduled an MRI. Id. at 82:7-9. Later, in June of an unspecified year, she underwent knee replacement surgery. Id. at 106:10-17; Def.'s Rule 56.1 Statement ¶ 17; Pl.'s Resp. to Def.'s Rule 56.1 Statement ¶ 17.

The plaintiff has characterized the manner in which Lynch struck her in various ways. A few days after the hit, the plaintiff filed a complaint with the post office, writing that "mailman Lynch deliberately pushed his mail cart into my right knee." Letter to Post Office, Def.'s Ex. C, ECF No. 26 ("Def.'s Ex. C"); Def.'s Ex. D 79:13-18. When asked to explain her phrasing in this complaint, the plaintiff testified that "he deliberately went into my knee, and there was no apology behind it, so I didn't understand." Def.'s Ex. D 80:7-14. She proceeded to testify that "[d]eliberate usually means that it was intentional, from my vocabulary. If we do something, we say sorry or something." Id. at 80:16-18. When asked whether Lynch's actions were intentional, she testified "I don't know. It felt intentional. It created an accident on my behalf. I ended up having an accident and it felt deliberate." Id. at 80:20-23. She went on to testify that "it wasn't just pushed, it was shoved - it was fast speed. . . . That's why I felt it was deliberate, a deliberate accident, if you will." Id. at 92:16-20. She likened Lynch's actions to "push[ing] a child down the steps or something to harm anyone[,]" id. at 120:4-5, and testified that "he should have been arrested" because "[y]ou can't go around injuring people[,]" id. at 120:9-14. She also testified that her "knee was assaulted." Id. at 121:3. On the "Standard Form 95" that she filed with the United States PostalService in connection with this case, the plaintiff wrote that Lynch "pushed a mailcart into [her] right leg and right knee." SF-95 Def.'s Ex. A, ECF No. 26.

In an affidavit that she prepared in response to the instant motion, the plaintiff "inform[ed] and clarif[ied] . . . the meaning of [her] use of words such as 'deliberate,' 'deliberately,' and/or 'intentional'" at her deposition and in her written complaint to the post office. Harrison Aff. Pl.'s Ex. D ¶ 3, ECF No. 30-1. She explained that she meant these words only as an "expression of [her] emotional state of mind" and that she "did not intend to use those words in [their] strict legal definition . . . ." Id. She further wrote that "as [she] testified before, [she] still do[es] not know what Mr. Neville Lynch's intentions were" because she "did not have any prior altercations" or "conflicts" with him. Id. at ¶ 4.

Lynch offers a different characterization of his actions. The plaintiff testified that when Lynch hit her with his cart and she told him "[y]ou pushed the cart into me," Lynch responded "[y]ou ran into my cart." Def.'s Ex. D 54:2-4, 75:21-23, 76:13-14, 77:12-15. Lynch testified that as he approached the plaintiff's home on the day in question, he found her "standing in the entrance," and he asked her, "[c]ould you excuse me?" Lynch Dep. Pl.'s Ex. E 50:20-22, 56:5-6, ECF No. 30-1. He testified that the plaintiff responded "[w]hy do I have to move, you are just trying to be difficult" and "you could put the cart anywhere." Id. at 50:23-25, 63:23-24. He described his tone as "not rude, just trying to be polite." Id. at 56:9-10. According to Lynch, the plaintiff moved out of his way "enough for [him] to [move] the cart." Id. at 56:20-23. Lynch further testified that the cart "didn't touch her." Id. at 56:23, 63:6-12, 70:3-5. He agreed with the plaintiff that he had no prior conflicts with her, see id. at 62:14-63:5, but testified that the plaintiff seemed "a little angry" on the day in question, id. at 63:16-17, 68:15-18.

The plaintiff sued the government pursuant to the Federal Tort Claims Act ("FTCA"), aswell as 28 U.S.C. §§ 2674 and 2679, alleging that Lynch acted negligently when he pushed his mail cart into her knee. Am. Compl. ¶¶ 13, 15-21, 25-26, ECF No. 2; see also id. at ¶¶ 30-31 (alleging that government was negligent, careless, and reckless in allowing Lynch to push cart into plaintiff).

The government argues that the plaintiff's subsequent characterization of Lynch's actions as deliberate forecloses the possibility of relief under the FTCA. According to the government, the plaintiff "unequivocally" testified that Lynch acted intentionally when he hit her with his mail cart. Def.'s Mem. of Law in Supp. of Mot. for Summ. J. 7, ECF No. 27 ("Def.'s Br."). The government argues that because the plaintiff's descriptions of Lynch's actions establish that he committed an intentional, rather than negligent, tort, the government cannot be liable because the United States has not waived its sovereign immunity with respect to intentional torts. See id. at 5, 7. Accordingly, the government moves for summary judgment.

DISCUSSION

Standard of Review

"The court shall grant summary judgment 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 function of the court is not to resolve disputed issues, but to determine whether there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). "While genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)) (internal quotation marks and ellipses omitted).

In assessing whether summary judgment is appropriate, the court considers "the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits." Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011) (quoting In re Bennett Funding Grp., Inc., 336 F.3d 94, 99 (2d Cir. 2003)); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party carries the burden of proving that there is no genuine dispute respecting any material fact and "may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994). Once this burden is met, in order to avoid the entry of summary judgment, the non-moving party "must come forward with specific facts showing that there is a genuine issue for trial." LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998) (citing Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994)). In reviewing the record before it, "the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).

The FTCA

The United States enjoys sovereign immunity from suit except where it waives such immunity. See United States v. Mitchell, 463 U.S. 206, 212 (1983); Rodriguez v. Velez-Pagan, 341 F. Supp. 3d 203, 207 (E.D.N.Y. 2018) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). The FTCA waives the sovereign immunity of the United States for certain civil suits

against the United States, for money damages . . . for . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable . . . in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). However, "[t]his broad waiver of sovereign immunity is subject to a number of exceptions set forth in § 2680." Millbrook v. United States, 569 U.S. 50, 52 (2013). In particular, § 2680(h) preserves sovereign immunity for "[a]ny claim arising out of...