United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT
UNITED STATES OF AMERICA'S MOTION FOR SUMMARY
Frederick P. Stamp, Jr. United States District Judge
a Federal Tort Claims Act (“FTCA”) case arising
out of a fall at the United States Post Office in Chester,
West Virginia (“the Post Office”). The plaintiff,
Debbie Harper (“Harper”), filed this action under
the FTCA against the United States of America and the United
States Postal Service (“Postal Service”). ECF No.
1. Plaintiff and defendant Hiler Buffalo, LLC, by their
respective counsel, filed a joint motion to consolidate
Harper v. Hiler Buffalo, LLC, Civil Action No.
5:17CV156, with the above-styled action, Harper v. United
States Postal Service, et al., Civil Action No.
5:17CV12, pursuant to Rule 42 of the Federal Rules of Civil
Procedure. This Court entered an order granting the
parties' joint motion to consolidate. ECF No. 20.
time, following this Court's order granting the Postal
Service's motion to dismiss (ECF No. 7) and order of
dismissal following the parties' compromise and
settlement in the related civil action against defendant
Hiler Buffalo, LLC (“Hiler Buffalo”) (ECF No. 18
in Civil Action 5:17CV156), only the plaintiff's claims
against defendant United States of America remain.
pending before the Court is defendant United States of
America's motion for summary judgment pursuant to Federal
Rule of Civil Procedure Rule 56 (ECF No. 51). Plaintiff filed
a response to defendant's motion for summary judgment
(ECF No. 63) and defendant filed its reply to plaintiff's
response (ECF No. 64). Defendant's motion for summary
judgment is now fully briefed and ripe for decision.
reasons that follow, defendant United States of America's
motion for summary judgment (ECF No. 51) is granted.
injury occurred inside the United States Post Office in
Chester, West Virginia, which was owned and operated by Hiler
Buffalo and leased to defendant United States of America to
conduct business of providing postal services. Plaintiff
alleges she was walking up the interior steps when she fell
and suffered physical injury as a result of crashing through
a glass wall. ECF No. 1 at 2. The glass wall was located at
the top of the stairs adjacent to the door at the entrance of
the Post Office lobby. ECF No. 52-1 at 45. Harper cannot
explain how she fell or recall the details of the incident,
but alleges in the complaint that “she was flung
through the glass wall due to the unsafe condition of the
interior steps handrail.” ECF No. 52 at 2; ECF No. 1 at
Contentions of the Parties
United States of America filed a motion for summary judgment
(ECF No. 51) and memorandum in support (ECF No. 52) and
asserts that plaintiff offers nothing but her own unsupported
speculation to explain how she was injured or how the actions
or omissions of any federal government actor caused her
injury. ECF No. 52 at 2-3. Further, defendant argues that
plaintiff has not and cannot establish that the United States
of America had any duty to repair or replace the handrail or
the glass panel at the Post Office. Id. at 4.
Therefore, the defendant contends, plaintiff has not
identified and cannot establish any genuine factual dispute,
except by relying on unfounded conjecture. Id. at 6.
Ultimately, defendant asserts that plaintiff has not and
cannot establish various essential elements necessary to
support a negligence claim against the United States of
America, particularly under the narrowly tailored FTCA
exception to the general rule that the United States cannot
be sued and, therefore, any disputed facts are fundamentally
immaterial. Id. at 5. Accordingly, defendant United
States requests that this Court grant summary judgment in its
filed a response in opposition to defendant's motion (ECF
No. 63). In applying the factors used to determine whether a
defendant in a premises liability case met his or her burden
of reasonable care under the circumstances to all
non-trespassing entrants, as cited in Dillon v. United
States, No. 5:12-CV-09314, 2015 WL 2145116 (S.D. W.Va.
May 7, 2015) (citing Syl. pt. 6, Mallet v. Pickens,
522 S.E.2d 436 ( W.Va. 1999)), plaintiff contends that
defendant United States of America, breached its duty of
reasonable care under the circumstances. Id. at 1.
Plaintiff contends that this Court should deny
defendant's motion for summary judgment and “permit
the trier of fact to determine at trial the applicable
standard of care and whether the defendant USA has met its
burden of reasonable care to business invitees such as the
plaintiff.” ECF No. 63 at 6.
United States filed a reply to plaintiff's response in
opposition to its motion for summary judgment (ECF No. 64)
and asserts that plaintiff cannot establish essential
elements necessary to support a viable negligence claim.
Defendant contends that plaintiff has “abandoned her
original theory that a faulty handrail flung her up a
stairway and propelled her into a glass panel” and
asserts that plaintiff's “newly formulated theory
that the United States of America had an independent duty to
replace the glass panel with safety glass is not justiciable
pursuant to the FTCA.” ECF No. 64 at 1, 3. Further,
defendant contends that “Harper never administratively
alleged that the United States of America had any independent
obligation to replace the glass panel with safety glass,
” and “[b]ecause Harper did not properly present
this allegation in the required administrative claim, this
court lacks subject matter jurisdiction to address this
theory.” Id. at 4. Moreover, defendant asserts
that “[e]ven if Harper had properly presented her
allegation in the required administrative claim, the FTCA
discretionary function exception bars Harper's claim that
the United States had a duty to replace the glass panel with
safety glass.” Id. at 5. Lastly, defendant
maintains that Harper cannot support her alleged negligence
claim against the United States and renews its request for
summary judgment in its favor.