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LUNA v. U.S.

October 15, 2004.

PATRICIA A. LUNA, Plaintiff,
v.
U.S., Department of the Navy, Defendant.



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Patricia Luna was addressing a group of 200 Naval recruits in a training room designed to look like a Navy ship in water when she fell off the three-foot simulated deck area and injured her knee. Luna, an employee of Resource Consultants, Inc. ("RCI"), recovered $20,706.40 on a workers' compensation claim in December 1998. In this lawsuit, she seeks an additional $125,000 in damages from the United States of America, Department of the Navy. Luna claims that Defendant is liable for her injuries under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., because it was negligent in failing to place a barrier at the edge of the drop-off; failing to warn Luna of the drop-off; and failing to train its personnel to properly warn people entering the room about the drop-off. For the reasons set forth here, the court finds in favor of Defendant.

PROCEDURAL HISTORY

  Before addressing the merits of this dispute, the court pauses to review its complicated procedural history. In pre-trial and trial phases of this case, both parties devoted most of their attention to the issue of whether Defendant was protected from liability under the FTCA by virtue of its status as a "borrowing employer" under the Illinois Workers' Compensation Act ("IWCA"), 820 ILCS 305/1 et seq. See Luna v. United States, Dep't of Navy, No. 00 C 1329, 2001 WL 664445 (N.D. Ill. June 13, 2001) ("Luna I"); Luna v. United States, Dep't of Navy, No. 00 C 1329, 2001 WL 1512530 (N.D. Ill. Nov. 28, 2001) ("Luna II"). Specifically, the IWCA provides that a workers' compensation claim is the exclusive remedy available when the employee of a "loaning employer" is injured while performing work for a "borrowing employer." See 820 ILCS 305/1(a)(4); Belluomini v. United States, 64 F.3d 299, 302 (7th Cir. 1995) (IWCA applies to loaned employees, and loaning employer and borrowing employer "share the immunity from tort liability conferred by the Act"). The government moved for summary judgment on this defense, but the court denied that motion. See Luna I, 2001 WL 664445. The government sought reconsideration, but the court adhered to its conclusion that there were disputes of fact concerning Plaintiff's training and supervision, see Luna II, 2001 WL 1512530, and set the case for trial.

  Following a bench trial, the court held that Defendant did not qualify as a borrowing employer because Luna was supervised, trained, hired, and paid by RCI; only RCI had the power to fire her; Defendant had little to do with Luna or the manner in which she performed her job responsibilities; and the contract between Defendant and RCI stated that Defendant was not to be involved in the day-to-day activities of RCI employees. See Luna v. United States, Dep't of Navy, No. 00 C 1329, 2003 WL 21196227, at *12 (N.D. Ill. May 21, 2003) ("Luna III"). The court nevertheless found in favor of Defendant on the merits, explaining that
[t]he court is unable to conclude that Defendant owed Plaintiff a duty to warn her about the edge of the platform. It seems more likely to the court that Plaintiff, caught up in her presentation and perhaps overwhelmed by the size of her audience, simply forgot about the edge of the platform and stepped back too far. Therefore the court finds the Defendant not liable for Plaintiff's unfortunate accident.
Id. at *14.

  This time, it was Plaintiff who sought reconsideration. She moved pursuant to FED. R. CIV. P. 59 and 52 to alter or amend the judgment, arguing that the parties had previously agreed that liability was uncontested and that the sole issue for trial was whether Defendant qualified as a borrowing employer. In support of this motion, Luna cited a February 10, 2003 letter from her attorney, David Kupets, to Assistant U.S. Attorney Ann Wallace, stating: Enclosed you will find the deposition designations for those witnesses identified by the plaintiff. There is one exception. We designated Lt. Christian Wallis in our original designation. However, it is my understanding that Patricia's fall and circumstances of her fall (including the condition of the trainer area) will not be contested for purposes of our bench trial, i.e., we are not disputing that the condition of the room was a cause of her injuries. If that is true, his testimony does not add anything to the case. If my understanding is incorrect, please let me know as soon as possible, otherwise, we do withdraw Lt. Wallis as a witness.*fn1

 (Ex. A to Plaintiff's Motion to Alter or Amend Order of May 21, 2003, at 1) (emphasis added). According to Luna's attorney, Defendant never responded to this letter. But for this silence, Mr. Kupets asserted, he would have deposed certain Navy personnel, submitted testimony regarding the fall, and disclosed a Rule 26 expert to present evidence on the issue of liability (all, presumably, between February 10, the date of his letter, and the February 21 trial date). See Luna v. United States, Dep't of Navy, No. 00 C 1329, 2004 WL 144131, at *3 (N.D. Ill. Jan. 16, 2004) ("Luna IV").*fn2 Defendant did not address this letter in its briefs opposing the motion to amend, which led the court to infer that Defendant "was not prepared to deny liability at the bench trial." Id. at *4. Defendant has since reminded the court that during oral argument on August 8, 2003, counsel did deny that she entered into any agreement not to contest liability, claiming that the parties had a conversation to that effect shortly after Mr. Kupets sent the February 10, 2003 letter. (Transcript of Proceedings dated 8/8/03, at 4). The court withdraws its inaccurate statement and apologizes to counsel for the error.

  In any event, the court found that Luna was under a good faith misapprehension concerning the scope of the bench trial and agreed to re-open the litigation (but not discovery) for the sole purpose of hearing evidence on the liability issue. Luna, Minute Order of 2/17/04 (Docket No. 46). The court has now reviewed that evidence and, for the reasons set forth below, enters judgment in favor of the United States.

  FACTUAL BACKGROUND

  The court will assume the reader's familiarity with the court's earlier opinions in this case but will review background information pertinent to the remaining dispute. RCI entered into a five-year contract with Defendant, under which RCI employees provided administrative services in support of the students and staff at Defendant's Service School Command ("SSC") located at the Naval Training Center in Great Lakes, Illinois. Luna, an RCI employee, worked as a Senior Administrative Assistant in the Seamen Apprenticeship Training Division of the SSC. On December 23, 1997, Luna was assigned to deliver a "departure brief," a speech to a group of Naval recruits scheduled to leave the training center. Such briefings are normally attended by about 50 recruits and take place in a classroom. On this day, however, Defendant expected approximately 200 recruits to attend the session and therefore moved the briefing from the classroom to the training area, or "trainer."*fn3 Luna, 2004 WL 144131, at *1. The training area is a room constructed to resemble a Navy ship at a pier. One part of the room forms the deck of the ship; it is painted gray and has seating for people receiving instruction. At the edge of the deck is a three-foot drop-off to the simulated "water" below, which is painted blue. On the day of Luna's presentation, there was no rope or other barrier marking the edge of the deck before the drop-off.*fn4 Luna had never given a brief in the training area before. The deck was crowded with students and during the first few minutes of Luna's talk, she stepped backward off the deck and fell onto the blue concrete "water" area. Robert Stoneking, a Division Functional Supervisor with RCI and Luna's immediate supervisor, testified that before the incident it had never occurred to him that there should be a rope at the edge of the platform to prevent someone from stepping off of it. He stated,
I thought anybody with any common sense walks out there and sees that drop-off, they know about it. And if they're anywhere close, they're not going to, even though there is no line, they're not going to back off and fall in there. Any reasonable — but I can't say for her, what she was thinking of. She got so wrapped up, involved in her thing that she just — and she told me later, "they all said, `Mrs. Luna, look out.'"
(Stoneking Dep., at 18-19.) Stoneking also observed that the accident may still have occurred, even had there been a rope line at the edge of the platform, if someone had stepped backward, as Luna did, without looking. (Id. at 19.)

  Luna claims that as a result of the fall, she sustained a torn meniscus in her knee and underwent physical therapy and ultimately surgery. She claims further that she continues to experience swelling, numbness and pain in the knee and is no longer able to play softball. Luna originally sought $150,000 in damages but has now revised that figure, without explanation, to $125,000. (Pl. Mem., at 8.)*fn5

  DISCUSSION

  The FTCA provides a remedy for personal injury caused by the negligent or wrongful act or omission of government employees while acting within the scope of employment. The government is liable in the same manner and to the same extent as a private individual in accordance with the law of the state where the cause arose. 28 U.S.C. §§ 1346(b), 2671, 2674. In Illinois, where this case arose, a plaintiff must establish that the defendant owed her a duty of care; the defendant breached the duty; and the plaintiff suffered an injury proximately caused by the breach. Bajwa v. Metropolitan Life Ins. Co., 208 Ill.2d 414, 421, 804 N.E.2d 519, 526 (2004).

  Defendant admits that it "owed a duty of reasonable care to entrants on the state of their premises." (Answer ¶ 11.) The government argues, however, that it did not have a duty to protect Luna from the drop-off because it was open and obvious and, thus, her injury was not reasonably foreseeable. Even if it was negligent, Defendant asserts, Luna's own negligence negates any liability on Defendant's part. Luna insists that Defendant owed her a duty to warn and to guard against unsafe ...


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