United States District Court, C.D. Illinois, Rock Island Division
SENORA MAPP WILLIAMS, and C.W., a minor, by SENORA MAPP WILLIAMS, his mother and next friend, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
SARA DARROW, District Judge.
Plaintiff Senora Mapp Williams, individually and on behalf of her minor son, C.W., alleges in her Complaint that C.W.'s wrist was broken due to the negligence of Defendant United States of America's ("the Government's") employees, who were operating the daycare center at the Rock Island Arsenal on March 15, 2012. Before the Court is the Government's Motion for Summary Judgment, ECF No. 25. For the reasons set forth below, the Motion is GRANTED.
On March 15, 2012, C.W. fell from the bench of a child-sized picnic table onto a cushioned surface at the playground of his daycare center, the Child Development Center ("CDC"), at the Rock Island Arsenal. He was one-and-one-half years old. Williams Dep. 18, ECF No. 27-4. The fall broke his wrist. Williams sued the Government under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675, on November 13, 2012, alleging that the Government was negligent in supervising C.W., failing to have proper policies in place to prevent the fall, and failing to properly train the CDC staff.
At the time of the accident, C.W. was assigned to the Sweet Pea room in Building 16 of the CDC. At 3:30 p.m. on March 15, 2012, he was one of seven children aged 18 to 24 months who were playing outside in a fenced-in playground adjacent to Building 16. Jurisic Dep. 23, Ex. 9, ECF No. 27-4; Rivera Dep. 17, Ex. 10, ECF No. 27-4. Amber Finnesand and Martine Rivera supervised the children. Army Regulation AR 608-10, Chapter 5, Table 5-1, sets the proper ratio for children by age group: for children aged six weeks to twelve months, the ratio is one adult for every four children; for children aged 12 months to 24 months, the ratio is one adult for every five children. Child care staff at the CDC are required to complete twenty-four hours of training each year. The Department of Defense certifies the CDC annually, and the playgrounds are subject to periodic inspections and daily safety checks. Williams does not dispute that the CDC "met the requirements of Federal regulations and that the correct number of workers were present at the facility and on the playground at the time of the accident." Pl.'s Mem. in Resp. Mot. Summ. J. 7.
The CDC was operating in accordance with two relevant Standard Operating Procedures ("SOPs") in March of 2012: Playground Usage and Supervision (SOP 1), and Accident Prevention (SOP 11). Exs. 1-A & 1-B, ECF No. 27-3. Of particular relevance in SOP 1 is the Supervision Model followed by CDC staff, designated by the acronym "PLAY, " for proximity, leadership, action, and yielding. Two key excerpts include: "Proximity-Immediate presence through proximate location of an adult can encourage children to follow the rules, promote the intended use of equipment, and facilitate problem solving"; and "Action-Supervision of children at play requires undistracted, active monitoring, or action. Supervisors should be constantly moving around the playground in an unpredictable pattern, while visually scanning other areas for beginnings of problems." SOP 1, ¶ 5.b.
The CDC uses a video monitoring system. More than one camera is trained on the playground where C.W. fell, but the recording of only one angle was preserved as Exhibit 1-C. The timestamp on the video recording is one hour ahead of the actual time; the video starts at 16:25:28, depicting 3:25:28 p.m. on March 15, 2012. The recording shows a rectangular fenced-in lawn with a black, triangular area in the middle. An L-shaped stretch of sidewalk is closest to the camera. Two child-sized picnic tables rest in the center of the black triangle beneath a pavilion. The picnic tables are 20.5 inches high, with seats about 10 inches off the ground. The black triangle is a "fall zone, " made of a special poured-in-place playground safety surface (about 3.5 inches of recycled rubber). According to the Government's expert, Nancy Carlson, the material is designed to disperse the momentum of a body falling up to eight feet. Carlson Letter, Ex. 2, ECF No. 27-3. The picnic tables are meant to allow indoor activities to be brought outside; they are not designed for climbing. The playground also contains riding toys and small play structures. C.W. is wearing white or light gray sweat pants with a black stripe running down the leg and a dark shirt.
On the tape, C.W. falls and hits the safety surface at 16:32:27. Rivera is seen blowing bubbles in the foreground at 16:25:49 before moving off screen at 16:25:56. Rivera states that from about 16:27:30 until 16:32:26, she believes she was about twenty feet from the picnic tables, standing next to a fence with a child. Rivera Dep. 29-37. She admits that she was engaged in casual conversation about the child with a coworker from Building 15, but says that she was positioned in a way that she "would still see what was going on." Id. at 30, 32. Williams, in her deposition, states that she viewed a ten- to thirty-second clip of a recording from another camera angle, which showed Rivera at the time of the accident. Williams Dep. 31-38. According to Williams, Rivera's "back was turned" and she was facing an adult; "she was at the gate... I think [she] had one child with her." Id. at 36-37. Rivera admits that her attention was not toward the picnic tables at 16:32, and that she did not witness the fall. Rivera Dep. 36.
Finnesand is visible in the recording throughout the relevant time. At 16:30:27, C.W. and a boy in a white shirt are sitting or kneeling on the bench of a picnic table while Finnesand observes from a short distance. Another child appears to seek Finnesand's attention, before running away, as she walks toward a fourth. At 16:30:46, Finnesand picks up another child in the far left of the visual field. The two children at the picnic table climb up and lay on their stomachs on top of the table at 16:30:55, as Finnesand walks back toward them with the child she just retrieved. Finnesand sets that child down at 16:31:07 near the picnic tables. The two children on the picnic table are joined by a third child, and at 16:31:15, they move into a seated position on top of the table. At 16:31:19, Finnesand begins to physically remove the three children from the table top. According to Finnesand, she redirected them and said, "feet on the ground." Finnesand Dep. 18, 27-28, Ex. 8, ECF No. 27-4. When all three are on or below-bench level, at16:31:43, Finnesand appears to be speaking with the children.
At 16:31:51, as Finnesand walks around the picnic table, the boy in the white shirt climbs back onto the table top, and stands up at 16:31:54. Finnesand lifts him off the table and into her arms before setting him on the ground. He runs away at 16:32:01, and returns to duck beneath the table at 16:32:06. Finnesand turns her attention to two other children near the tables, who she says both wanted the same riding toy. Finnesand Dep. at 29. C.W. is sitting or kneeling on the bench of the picnic table. At 16:32:10.70, Finnesand holds the hand of one of the riding-toy children; she looks at C.W. and the boy in the white shirt, and starts to walk away with the riding-toy child. She does not turn her gaze away from C.W. and the boy in the white shirt until 16:32:13, and she looks back in their direction at 16:32:14 for at least one second. The children at the picnic table have not moved; C.W. is sitting or kneeling on the bench, and the boy in the white shirt is beneath the table. At 16:32:20, the boy in the white shirt crawls out from under the table, and climbs to its top by 16:32:25. Finnesand is visible in the far left of the visual field with the riding-toy child; she faces away from the picnic tables. C.W. appears to suddenly lose his balance at 16:32:26 and hits the safety surface by 16:32:27. It is not clear from the recording whether, as the Government posits, C.W. is kneeling on the bench of the table when he falls, but it is clear that he is not on top of the table. Finnesand turns to look in C.W.'s direction at 16:32:28. Williams does not take issue with the attention or care paid to C.W. after the accident. Williams Dep. at 41. C.W.'s wrist was broken, but he sustained no permanent damage to his wrist. Id. at 26. Williams states that he appears more fearful; she made an appointment to take him to a counselor, but C.W. had not yet seen one at the time of her deposition. Id. at 28.
I. Legal Framework
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). On a motion for summary judgment, the Court will construe all facts and draw all reasonable inferences in favor of the nonmoving party. See Srail v. Vill. of Lisle, Ill. , 588 F.3d 940, 948 (7th Cir. 2009). Summary judgment is the "put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Johnson v. Cambridge Indus., Inc. , 325 F.3d 892, 901 (7th Cir. 2003) (internal quotation marks omitted). A court should grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). At the summary judgment stage, the judge's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Patel v. Allstate Ins. Co. , 105 F.3d 365, 370 (7th Cir. 1997). There can be no genuine issue as to any material fact when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). The nonmoving party may not rest on its pleadings. See id. at 324 (explaining the purpose of Fed.R.Civ.P. 56(e)).
The FTCA permits tort claims against the United States by parties injured by allegedly negligent acts or omissions of any government employee acting within the scope of his or her official duties. LM ex rel. KM v. United States , 344 F.3d 695, 698 (7th Cir. 2003) (citing 28 U.S.C. § 1346(b)). FTCA suits are governed by the substantive law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). To prove negligence in Illinois, a plaintiff must prove by a preponderance of the evidence that: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, and (3) the defendant's breach proximately caused the plaintiff's injury. Chandler v. Ill. Cent. R.R. Co. , 798 N.E.2d 724, 728 (Ill. 2003). Whether a duty is owed is a matter of law, while the questions of breach and proximate cause are generally for the finder of fact-provided there is a genuine issue of material fact as to ...