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Pizano v. Harrington

June 22, 2010

MONICA PIZANO, INDIVIDUALLY AND AS A MOTHER AND NEXT BEST FRIEND OF BABY PIZANO, AN UNBORN FETUS, PLAINTIFF,
v.
HARRINGTON, MORAN, BARKSDALE, INC., D/B/A HMBI, UNITED STATES OF AMERICA, AND OTHER UNKNOWN JOHN DOE OWNERS, OCCUPIERS, POSSESSORS, AND MANAGERS OF PROPERTY 936 QUAIL DRIVE, BRADLEY, ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on the Motion for Summary Judgment (#33) filed by Defendant, the United States of America. This court has carefully reviewed the United States' Motion and supporting Exhibits, the Response (#55) and attached affidavit filed by Plaintiff, Monica Pizano, and the United States' Corrected Reply (#57). Following this careful and thorough review, the United States' Motion for Summary Judgment (#33) is GRANTED.

FACTS*fn1

Plaintiff was working as a real estate agent in April 2006. On April 10, 2006, she went to a home located at 936 Quail Drive in Bradley, Illinois (Property), in order to show the Property to a client. On that date, Plaintiff walked out of the Property and fell off the front stairs. The Property was owned by the Department of Housing and Urban Development (HUD) based on a foreclosure sale of the property. Effective December 2004, HUD entered into a marketing and management contract with Harrington, Moran, Barksdale, Inc. (HMBI). Pursuant to its contract with HUD, HMBI was the management and marketing contractor responsible for the management and marketing of HUD owned properties, including the Property. HMBI was contractually required to maintain the Property in a manner that was clean, safe, sanitary and secure. It is undisputed that no federal employees work for HMBI and no employee of HUD supervised or was involved in HMBI's management and care of the Property.

PROCEDURAL HISTORY

On February 9, 2009, Plaintiff filed her Complaint (#1) in this court against HMBI, the United States and Other Unknown John Doe Owners, Occupiers, Possessors and Managers of the Property. Plaintiff stated that she was bringing a civil action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, and the Illinois Wrongful Death Act, 740 Ill. Comp. Stat. 180/0.01 et seq. (West 2006). Plaintiff alleged that, on April 10, 2006, she fell while at the Property and that Defendants "knew, or in the exercise of ordinary care, should have known, of the dangerous and defective conditions on the Property." Plaintiff alleged that Defendants:

a. Carelessly and negligently failed to provide safe conditions at the Property 936 Quail Drive, Bradley, Illinois;

b. Carelessly and negligently failed to use reasonable care in discovering the dangerous and defective conditions on the Property 936 Quail Drive, Bradley, Illinois;

c. Carelessly and negligently failed to provide proper warning of the dangerous and defective conditions on the Property 936 Quail Drive, Bradley, Illinois; and

d. Were otherwise careless and negligent in the ownership, occupation, possession, management, and/or other oversight, of the Property 936 Quail Drive, Bradley, Illinois.

In Count I, Plaintiff sought an award of damages for her medical care and treatment and for the pain and disability she suffered as a result of her injuries. In Count II, Plaintiff alleged that, on April 10, 2006, she was pregnant with an unborn and viable fetus who died as a result of Defendants' acts and omissions and the subsequent injuries suffered by Plaintiff. Plaintiff therefore sought damages pursuant to the Illinois Wrongful Death Act.

On October 15, 2009, the United States filed its Motion for Summary Judgment (#33). The United States argued that it cannot be liable under the Federal Tort Claims Act (FTCA) because HMBI was an independent contractor responsible for the Property and no federal employees were involved with the Property. On November 23, 2009, Plaintiff filed her Response to the Motion for Summary Judgment (#55). Plaintiff argued that the United States is not entitled to summary judgment because a genuine issue of material fact exists regarding whether the United States can be liable under a theory of apparent authority. Plaintiff contended that she has presented sufficient facts to raise the issue of whether HMBI had apparent authority to act on behalf of HUD and Plaintiff justifiably relied on HMBI's apparent authority to her detriment. On December 1, 2009, the United States filed its Corrected Reply to Plaintiff's Response (#57). The United States argued that the doctrine of apparent authority is not a valid basis for liability under the FTCA.

ANALYSIS

I. SUMMARY JUDGMENT ...


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