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NIEVES v. UNITED STATES

October 21, 1997

CHARLENE NIEVES, Plaintiff,
v.
UNITED STATES OF AMERICA and UNITED STATES POSTAL SERVICE, Defendants.



The opinion of the court was delivered by: BUCKLO

 The plaintiff, Charlene Nieves, filed a personal injury lawsuit against the defendants, the United States of America and the United States Postal Service (collectively "United States"), pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq. The United States moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). For the reasons set forth below, the United States' motion is granted.

 Background

 On Saturday, September 25, 1993, Ms. Nieves went to the Oak Park Post Office ("Oak Park Station") and dropped off a change of address form and purchased stamps. It was not raining when she entered the Oak Park Station but it had been raining earlier in the day. *fn1" As Ms. Nieves was walking through the Oak Park Station to leave the premises, she slipped and fell on the terrazzo floor and injured her right knee. She subsequently filed a negligence claim seeking damages in excess of $ 50,000.

 In her deposition, Ms. Nieves stated that at the time she fell, she was approximately twenty feet from the east exit door. *fn2" The area where she fell was an "open area" and "there was nothing around [her]." Nieves Dep. at 8-9. She also stated that before she slipped, she did not notice any liquid on the floor. Id. at 10. The first time she noticed that there was water on the floor was after she fell. Id. at 32. There was "a little puddle probably about four inches round" at the spot where she fell. Id. at 32-33. She did not look around the rest of the post office and so she did not notice any other water on the floor. Id.

 Ms. Nieves subsequently contradicted her deposition testimony in an affidavit submitted in response to the United States' motion for summary judgment. In that affidavit she stated that "approximately 3 feet from the location where [she] fell there was a table with certified mail and various other forms for customer use. Located upon said table was a bowl with a sponge and water to assist customers with sealing envelopes and stamps." Nieves Aff. P 6. She also stated that before she fell, "as I conducted my business at the Post Office, I did not see water tracked into the facility." Id. P 4.

 No one witnessed Ms. Nieves fall but shortly thereafter, Dawn Pieroni, a supervisor, and Faith Lopez, a teller, arrived at the spot where Ms. Nieves fell. Ms. Pieroni testified that Ms. Nieves fell in an open space and that there were a few drops of water, the size of "a raisin or a penny" in that area. Pieroni Dep. at 15, 35. According to Ms. Pieroni, the water was being tracked-in by customers. Id. at 34-35.

 Richard Iacullo, Ms. Nieves' husband, was called to the post office after the fall. Mr. Iacullo also submitted an affidavit in response to the United States' motion for summary judgment. In that statement, he states that when he entered the post office, he noticed Ms. Nieves lying on "what appeared to be a slippery marble floor" "approximately 20 feet from the entrance door" and "approximately 3 feet from . . . a table with certified mail and other various forms for customer use. Also, upon said table, there was a bowl with a sponge and water to assist customers with sealing envelopes and stamps." Iacullo Aff. PP 7, 9, 10. Mr. Iacullo also "observed a liquid substance next to Charlene Nieves on the floor that appeared to be water." Iacullo Aff. P 8. Furthermore, "at all times while he was in the post office there was no water located on the floor near the entrance doors" and "there was [a] carpet when he initially entered the post office and that said carpet appeared dry and had no water saturation." Iacullo Aff. PP 6, 11.

 Summary Judgment

 Lawsuits under the FTCA are governed by the substantive law of the state where the alleged act or omission took place. 28 U.S.C. § 1346(b). In this case, Illinois law applies since the alleged negligent act or omission of the United States occurred in Illinois.

 Since the United States is a public entity, it is protected by the provisions of the Illinois Local Government Tort Immunity Act. See Rose v. United States, 929 F. Supp. 305, 307 (N.D. Ill. 1996) (citing Cooks v. United States, 815 F.2d 34, 35 (7th Cir. 1987)). Thus, Ms. Nieves 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 correct it." Rose, 929 F. Supp. at 308 (quoting Stewart v. United States, 918 F. Supp. 224, 226-27 (N.D. Ill. 1996)).

 The general rule in Illinois is that landowners are not liable for injuries resulting from natural accumulations of water from snow, rain, or ice, tracked into the premises by customers. Lohan v. Walgreens Co., 140 Ill. App. 3d 171, 488 N.E.2d 679, 680-81, 94 Ill. Dec. 680, 681-82 (1st Dist. 1986). Since owners are not liable, they have no duty to remove the tracks or residue from rain left by customers or to warn of such accumulations. See Stypinski v. First Chicago Bldg. Corp., 214 Ill. App. 3d 714, 574 N.E.2d 717, 718, 158 Ill. Dec. 604, 605 (1st Dist. 1991); Newcomm v. Jul, 133 Ill. App. 2d 918, 921, 273 N.E.2d 699, 701 (3rd Dist. 1971). If the water Ms. Nieves slipped on was tracked-in rainwater, the United States did not breach a duty owed to her. Thus, to withstand the government's motion for summary judgment, Ms. Nieves must allege sufficient facts to permit a trier of fact to find that the United States was responsible for an unnatural accumulation of water that caused her injuries.

 In this case, Ms. Nieves has failed to meet this burden. It is undisputed that sometime before Ms. Nieves arrived at Oak Park Station, it rained. It is also undisputed, that there was one four-inch round puddle and some other "raisin" or "penny" sized drops of water on the Oak Park Station lobby floor. Ms. Pieroni, the supervisor, stated that water was being tracked-in by customers. There is no other reliable or credible evidence to suggest that the wet floor was the result of anything other than the natural accumulation of rainwater tracked-in by customers.

 Ms. Nieves argues that since no one can testify as to the precise source of the water, the source may be determined by inferences. Thus, she argues, based on her and her husband's July 7 affidavits, since she fell approximately three feet from a table with a bowl and sponge with water, the ...


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