Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ROSE v. UNITED STATES

June 10, 1996

MARILYN ROSE, Plaintiff,
v.
UNITED STATES OF AMERICA and SALVINO WRECKING & HAULING, INC., Defendants.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Marilyn Rose brings this two-count amended complaint against the United States of America and Salvino Wrecking & Hauling, Inc. ("Salvino"). Rose claims that because of the defendants' negligence, she fell on the snow and ice outside the Post Office in Berwyn, Illinois. Presently before this court are the defendants' motions for summary judgment, and for the reasons set forth below both of these motions are granted.

 I. Background

 The relevant facts, which are largely undisputed, are lifted from the parties' submissions pursuant to General Rules 12(M) and 12(N) of the United States District Court for the Northern District of Illinois ("Local Rule 12(M)" and "Local Rule 12(N)"). *fn1" At approximately 6:00 p.m. on Sunday, February 13, 1994, Rose left her residence in Berwyn and walked up Clarence Avenue towards Cermak Road. Plaintiff claims it was not snowing at that time, but that a fair amount of snow and ice remained on the ground from previous snowfalls. As she continued up Clarence, Rose approached a section of sidewalk adjacent to the Berwyn Post Office that also serves as a driveway leading to the parking lot of the Post Office. At her deposition the plaintiff testified that the snow on this portion of the sidewalk was "bumpy," but she continued to walk on the sidewalk because "it seemed like it was very solid." USA's 12(M) P 8, Ex. 2 at 29.

 However, as Rose continued forward she claims she hit a patch of ice and fell backwards, injuring her hands and wrists. Rose contends that she did not see the ice patch until she starting slipping, and after she fell she noticed that the ice was "bumpy" and had tire tracks in it. USA's 12(M) P 10-11. Rose claims that the snow was "bumpy and lumpy," and the "ice was bumpy, too, like in chunks." USA's 12(M) P 13, Ex. 2 at 87-88. Plaintiff reasons that since new snow is soft, the hard and lumpy snow and ice on the sidewalk must have been an unnatural accumulation caused by (1) the negligent removal of snow and ice by Post Office employees and (2) the excessive incline of the driveway adjacent to the sidewalk.

 The portion of the sidewalk at issue is not owned by the United States, but by the city of Berwyn. It is undisputed that one Post Office custodian, Ed Karon, shoveled the sidewalk and spread calcamite--a melting agent--during the work days of February 7 through February 11, 1994. Pl.'s 12(N)(3)(b) P 3-6. Another Post Office custodian, Diane Gurzynski, does not remember if she shoveled on February 12--the day before Rose fell--but claims that if it snowed at any time prior to her signing out that day, she would have shoveled the sidewalk area. USA's 12(M) P 28. All parties submit that the Post Office was closed on Sunday, February 13, and therefore no one shoveled the sidewalk area on that day. USA 12(M) P 29.

 Prior to the day of her fall, Plaintiff was unaware of anyone falling on the sidewalks outside the Post Office, and she never complained to postal or city employees about the condition of the sidewalks on Clarence Avenue. USA's 12(M) PP 17-18. In addition, the Berwyn Post Office had not received any complaints before Rose's accident concerning any defect or unsafe condition on the sidewalk. USA's 12(M) P 36.

 After the United States Postal Service rejected her claim for compensation, Rose filed the instant action. Count I is directed against the United States under the Federal Tort Claims Act, 28 U.S.C. ยงยง 1364(b), 2671-80 ("FTCA") and Count seeks damages from Salvino under state law. Both defendants now move for summary judgment.

 II. Summary Judgment Standard

 Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In seeking a grant of summary judgment the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue, or by pointing out "an absence of evidence to support the non-moving party's case." Celotex Corp., 477 U.S. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); rather, "[a] genuine issue exists when the evidence is such that a reasonable jury could find for the non-movant," Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). When reviewing the record we must draw all reasonable inferences in favor of the non-movant; however, "we are not required to draw every conceivable inference from the record--only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).

 III. Discussion

 We first address the plaintiff's FTCA claims against the United States in Count As lawsuits under the FTCA are governed by the substantive law of the state where the injury occurred, Hess v. United States, 361 U.S. 314, 318, 4 L. Ed. 2d 305, 80 S. Ct. 341 (1960); Buscaglia, 25 F.3d at 534, Illinois law applies to Count I of Rose's amended complaint. As a public entity, the United States is protected by the provisions of the Illinois Local Government Tort Immunity Act. See Cooks v. United States, 815 F.2d 34, 35 (7th Cir. 1987). *fn2" "Consequently, in order for [Rose] to prevail on her claim she must prove that she was owed a duty of care by the United States, that a breach of this duty proximately caused her injuries, and that the United States had actual or constructive notice of the allegedly unsafe condition in time to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.