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Demichele v. United States

August 19, 2008


The opinion of the court was delivered by: Mag. Judge Michael T. Mason


Plaintiff Ruth DeMichele ("plaintiff" or "DeMichele") filed a single count complaint against the United States of America ("defendant" or the "United States") under the Federal Tort Claims Act, 28 U.S.C. §2671 et seq. This Court has jurisdiction over this case pursuant to 28 U.S.C. §1346. Defendant's motion for summary judgment is presently before this Court. For the following reasons, defendant's motion is granted.


Pursuant to Local Rule 56.1("L.R. 56.1"), a motion for summary judgment must be accompanied by "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." L.R. 56.1(a)(3). The material facts must be set forth in short numbered paragraphs. Each party opposing a summary judgment motion must serve and file a concise response to the movant's statement in "numbered paragraphs, each corresponding to and stating a concise summary of the paragraph to which it is directed." L.R. 56.1(b)(3)(A). In the response, the non-movant must respond to each numbered paragraph in the movant's statement and include, in the case of any disagreement, "specific references to the affidavits, part of the record, or other supporting materials relied upon." L.R. 56.1(b)(3)(B). In addition, the non-movant must submit "a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1 (b)(3)(C). L.R. 56.1 warns litigants that "[a]ll material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." Id.

Defendant's motion is accompanied by a statement of material facts. However, plaintiff failed to respond in the required paragraph-by-paragraph form. Plaintiff also failed to submit her additional facts in paragraph-by-paragraph form. Rather, plaintiff incorporates factual allegations into the body of her response in opposition to defendant's motion, often without specific reference to the affidavits, parts of the record, or other supporting materials relied on. Plaintiff attaches the complaint, three deposition transcripts, and the affidavit of Steve O'Neill (the "O'Neill Affidavit") as exhibits to her response.

A district court has broad discretion to require strict compliance with L.R. 56.1. Amakua Dev. LLC v. Warner, 2007 U.S. Dist. LEXIS 49952, *4 (N.D. Ill. July 10, 2007) (collecting Seventh Circuit cases). Moreover, the Seventh Circuit has "consistently held that a failure to respond by the non-movant as mandated by the local rules results in an admission." Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Accordingly, to the extent defendant's material facts conform to L.R. 56.1 and are adequately supported by the record, they are admitted. L.R. 56.1 (b)(3)(C). Moreover, because plaintiff's additional facts do not conform to the requirements of L.R. 56.1, they will not be considered by this Court. Frazier v. American Pharm. Partners, 2007 U.S. Dist. LEXIS 93582, *5 (N.D. Ill. Dec. 20, 2007) (refusing to consider facts set forth in long unnumbered paragraphs organized under broad subject headings). Therefore, unless otherwise stated, the following is taken entirely from defendant's statement of facts:


Plaintiff seeks damages for injuries she sustained on the morning of December 15, 2004, at the Palatine, Illinois post office facility (the "Palatine Post Office"). At the time of plaintiff's accident, the floors of the facility's hallway and lobby area were partially covered with mats, alternatively referred to as rugs and/or runners. In the wintertime, additional mats were placed on the floors in anticipation of snow melt and debris. The mats were placed to soak up snow and dirt before postal customers reached the lobby. The placement specifically contemplated preventing patrons from slipping on wet tiles.

DeMichele has been a customer at the Palatine Post Office for more than 36 years. She comes to the facility one to three times per month. On the date of plaintiff's accident, the Palatine Post Office was the second highest post office in sales in the Chicagoland area. It is estimated that every day more than 1,000 customers walk down the long hallway and into the main lobby area of the facility.

Plaintiff entered the Palatine Post Office around 10:30 a.m. on December 15, 2004. She was carrying a two to three pound purse and fifty to seventy envelopes. According to the accident report attached to defendant's motion, DeMichele "tripped on a rug that was left curled up from [a] previous customer, which caused her to fall to the ground." DeMichele later testified that the accident occurred when she tripped over a mat that was folded over in the corner on her way into the lobby area of the Palatine Post Office. However, plaintiff also testified that she did not see the mat prior to the accident because she was looking straight ahead, and did not look down at the rug. DeMichele does not know how long the mat had been curled over. As a result of the fall, plaintiff injured her head, knee and left breast. In the complaint, DeMichele alleges that all or some of these injuries are permanent and prohibit her from following her usual activities of daily living.

Plaintiff testified that there was only one other person in the room when she fell. That individual is identified in the accident report as Steve O'Neill ("O'Neill"), another customer at the Palatine Post Office. O'Neill came to plaintiff's aid after her fall.

Coincidentally, December 15, 2004 was one of the four days per year that a massive, thorough inspection of the Palatine Post Office is performed. Prior to plaintiff's entry into the post office, James Rogan, a general maintenance mechanic ("Rogan"), and the Postmaster of the Palatine Post Office, Richard Culleton ("Postmaster Culleton"), performed a quarterly inspection of the facility, including the lobby. Rogan is required to perform a complete inspection of the entire postal facility with the Postmaster or other upper-level official once per quarter. The purpose of the inspection is to insure that all areas of the post office are clean, neat and safe for occupancy. Also on the morning of December 15th, Rogan performed janitorial duties in the lobby area on behalf of an absent custodian.

Rogan and Postmaster Culleton started their inspection in the lobby area at approximately 10:00 a.m. They spent five to ten minutes in the lobby checking for any potential safety issues from chipped tiles to metal plating on the doors. Rogan recorded any safety concerns found in the lobby area and throughout the building. Nothing in Rogan's report, which was also signed by Postmaster Culleton, indicates that the mats in the lobby area or hallway were curling or bunching up at the time of the inspection. In fact, the report shows that the floors in the lobby area were in satisfactory condition. Postmaster Culleton later testified that he did not see any defects or hazardous conditions relating to the mats in the lobby area, and did not find the mats to be in any kind of deteriorated condition. Around 10:30 a.m., shortly after leaving the lobby area, Postmaster Culleton was called away from the inspection due to plaintiff's accident in the lobby. Following plaintiff's accident, Rogan checked all the runners in the Palatine Post Office and determined that none of the mats were bunching or curling up.

In his deposition, Rogan characterized the mats as consistently in excellent condition. He described the mats as "a tight-weave, commercial-type carpet." Postmaster Culleton testified that the rugs are "rubber backed, standard mats that [the post office has] leased from an authorized contractor for a number of years." The mats are held down by their own weight. They are difficult to move because they are designed to not move. However, the mats are regularly moved for mopping and sweeping the surrounding area. DeMichele stated in her deposition that the mat which caused her injuries was a "heavy rug." Because of its weight, DeMichele doubts that she could have caused the mat to raise up further after she tripped on it.

The mats at the Palatine Post Office are leased from the Cintas Company ("Cintas"). According to Rogan's testimony, Cintas employees replace the existing rugs with clean rugs every Wednesday. Plaintiff's accident occurred on a Wednesday morning, approximately three hours after the Cintas employees replaced all the mats. Sometime before 8:00 a.m., after the Cintas employees change the mats, Rogan straightened out the rugs to make sure that all the mats were properly aligned.

Rogan aligned the mats at least once a day. This involved lining them up in a straight line so that customers would be visually directed to the front lobby. Straightening was also required after taking the rugs outside to shake off debris and after cleaning. Generally, daily straightening did not involve getting rid of bunches or buckles, but rather fixing the angle of the rug. Throughout the course of the day, if Rogan saw a misaligned runner, he would ...

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