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Kaminski v. United States

United States District Court, D. Kansas

December 1, 2017

CHARLES KAMINSKI, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OF DECISION

          DANIEL D. CRABTREE, UNITED STATES DISTRICT JUDGE.

         In February 2013, several winter storms passed through northeast Kansas, blanketing the area with heavy snowfall.[1] This same month, plaintiff Charles Kaminski slipped and fell on a sidewalk outside a post office in Bonner Springs, Kansas. He sustained injuries to his right arm and shoulder. Mr. Kaminski brought this negligence lawsuit against defendant, the United States of America, seeking to recover damages for his injuries under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680.

         After a trial to the court beginning on July 18, 2017, and ending on July 20, 2017, the case now is ready for decision.[2] After considering the evidence and arguments presented at trial, the court makes the following findings of fact and conclusions of law, as Rule 52 requires. See Fed. R. Civ. P. 52(a)(1) (requiring a court to state its findings of fact and conclusions of law in “an action tried on the facts without a jury”). In sum, the court concludes that Mr. Kaminski has failed to meet his burden to prove a negligence claim under the FTCA. The court thus enters judgment for defendant. The court explains the reasons for its decision, below.

         I. Findings of Fact

         On an early morning in February 2013, Mr. Kaminski drove to the post office in downtown Bonner Springs, Kansas, stopping to mail some letters before heading to work. Mr. Kaminski testified that it was cold outside that morning, but clear. Mr. Kaminski recalled that no snow or ice was falling that morning, and the streets outside the post office were clear. Mr. Kaminski arrived at the post office shortly after 5:00 a.m. It was dark when he arrived.

         The United States Postal Service's (“USPS”) postal facility (“Post Office”) in Bonner Springs, Kansas, is located at the intersection of East Second and Cedar Streets. East Second Street borders the Post Office on the northwest side, and Cedar Street borders it on the southwest side. The front of the Post Office runs parallel with Cedar Street. There are four angled, off-street parking spaces located on the East Second Street side of the Post Office. A public sidewalk runs between the off-street parking spaces and the northwest wall of the Post Office. A free-standing letter collection box is located near the corner of East Second and Cedar Streets. It stands to the southwest of the four angled parking spaces between East Second Street and the Post Office building.

         When Mr. Kaminski arrived at the Post Office, he parked his pick-up truck in the third or fourth parking space moving away from the corner of East Second and Cedar Street.[3] Mr. Kaminski testified that he did not park in one of the spaces closer to the collection box because he saw broken concrete on the ground in one of those spaces. After parking, Mr. Kaminski left his truck through the driver's side door and walked in front of his truck. He intended to walk down the sidewalk to the collection box at the end of the street so that he could mail his letters. While still standing in the street, Mr. Kaminski noticed a small ridge of snow piled along the curb line and another ridge of snow piled up against the other side of the sidewalk, i.e., against the Post Office building. He also saw that someone had shoveled a path about three feet wide in between the two snow piles. Mr. Kaminski stepped over the snow closest to the curb and onto the sidewalk. He slipped on the sidewalk immediately, falling on his right arm, right elbow, and right side. Mr. Kaminski testified that he fell to the ground so hard that he thought he had hit his head. Mr. Kaminski then rolled over on his stomach, got to his hands and knees, and crawled to the street where he was able to regain his feet. He testified that the sidewalk was so slippery that he could not stand on it. But, he testified, he was able to stand in the street.

         Once on his feet, Mr. Kaminski heard some noise coming from the back of the Post Office building. He walked back there and saw Matt Lowe, a postal employee, standing outside the building. Mr. Kaminski told Mr. Lowe that he had slipped and taken a “hard fall” on the sidewalk. He also told Mr. Lowe that the Post Office should do something to treat the slippery conditions on the sidewalk. Mr. Lowe never asked Mr. Kaminski if he was hurt or injured by the fall. But, likewise, Mr. Kaminski never told Mr. Lowe that he had injured himself.

         After this conversation, Mr. Kaminski walked back down the street to the collection box. He mailed his letters, walked in the street back to his truck, and then drove on to work. He worked at a Honeywell facility located on Bannister Road in Kansas City, Missouri-about 30 miles from the Bonner Springs Post Office.[4]

         Mr. Kaminski worked his complete work shift the day of the fall, ending about 3:00 p.m. On his way home from work, Mr. Kaminski drove to the Post Office again. He went inside, asked to speak with the manager, and he met Officer-in-Charge (“OIC”) Roy Sanderson. Mr. Kaminski told Mr. Sanderson that earlier that morning he had slipped and taken a hard fall on the ice outside of the Post Office and asked whether the Post Office had taken care of the icy conditions. Mr. Kaminski never told Mr. Sanderson that he had sustained any injuries from the fall. And, Mr. Sanderson never asked Mr. Kaminski if he had hurt himself in the fall. Outside the Post Office, Mr. Kaminski observed ice melt on the sidewalk. He also noticed that someone had placed one or two plastic placards on the sidewalk. Mr. Kaminski would not remember what was on the placards, but he compared them to one that a custodian might use to mark a wet floor.

         Mr. Kaminski then went home. He showed his wife his injured arm. It was black and blue. He treated his arm at home with ice and ibuprofen. But, Mr. Kaminski did not seek medical treatment for his injuries for several more months. On March 12, 2013, Mr. Kaminski had an appointment with his family physician to treat a sinus infection. He never mentioned that he had sustained injuries from a fall in February during this doctor visit. Mr. Kaminski testified that he did not tell his doctor about his injuries from the fall because he thought they would improve. But, when they did not, he made an appointment with Dr. Prem Parmar, an orthopedic surgeon. On June 3, 2013, Mr. Kaminski had his first visit with Dr. Parmar. This was the first medical treatment Mr. Kaminski had sought or received for injuries he sustained in the fall.

         Date of Mr. Kaminski's Fall

         The parties sharply dispute the date when Ms. Kaminski fell outside the Post Office. This fact is complicated by both parties' omissions and errors in reporting the date of the fall. These errors begin early in the timeline. On the day Mr. Kaminski fell, no one at the Post Office recorded the date or made a report about it. But, in 2013, USPS required employees to report all injuries involving non-postal employees on Post Office premises. USPS also required that a postal facility's manager or supervisor report all accidents and occupational injuries and illnesses in the Employee Health and Safety System (“EHS”) within 24 hours of the event. To make the report, the USPS employee must input information into EHS, and EHS then generates an accident investigation worksheet (Form 1700) and accident report (Form 1769).

         Matt Lowe-the employee who Mr. Kaminski had spoken with minutes after he fell- testified that he never prepared a written report about Mr. Kaminski's fall. He told OIC Roy Sanderson about the complaint, however, and they agreed to “take care” of the sidewalk before the Post Office opened that morning. Mr. Lowe testified about his brief conversation with Mr. Kaminski about the fall on the morning it happened. Mr. Lowe explained he had just arrived at work. He had seen Mr. Kaminski's truck parked in the parking space as he walked to the building to begin his work day. It was dark outside, and Mr. Lowe recalls that snow was covering the ground. Mr. Lowe also testified that he was unlocking the door to go into the Post Office when Mr. Kaminski approached him. Mr. Kaminski told him that he had fallen on the sidewalk on the northwest side of the building. Mr. Lowe testified that he responded by saying that he'd take care of the slippery conditions when he had time.

         Mr. Lowe also testified at trial that he believes the fall happened on February 27, 2013- which was a Wednesday. Mr. Lowe readily conceded, however, that he testified at his deposition that the fall occurred on a Monday. But, at trial, he testified that he knows today that the fall did not happen on a Monday. He explained the basis for his conclusion in this fashion: In 2013, Mr. Lowe's scheduled hours required him to arrive at work at 5:15 a.m. on Tuesdays through Saturday. But his scheduled called for him to arrive at 4:00 a.m. on Monday. When Mr. Kaminski reported the fall to Mr. Lowe, he just had arrived at work. Mr. Lowe's time records appear to support his testimony. On Wednesday, February 27, Mr. Lowe clocked into work at 5:04 a.m. But, on Monday, February 25, Mr. Lowe clocked in at 4:20 a.m.

         Mr. Sanderson also failed to make a written report about Mr. Kaminski's fall on the day it occurred. Mr. Sanderson recalled that Mr. Kaminski came to the Post Office on the afternoon of his fall to complain, but Mr. Sanderson did not know that USPS policy required him to report the complaint. In June 2013, Mr. Kaminski and his wife returned to the Post Office to make another complaint about his fall in February. Mr. Sanderson again received Mr. Kaminski's complaint. After speaking to Mr. Kaminski in June, Mr. Sanderson called another postal employee to ask for instructions about how to handle the complaint. The employee directed him to contact Safety Specialist Kathreen Bollinger. On June 11, 2013, Mr. Sanderson submitted an accident report form by providing information about the accident to Ms. Bollinger. Mr. Sanderson did not have any notes or other written documentation about the accident to refer to when he talked to Ms. Bollinger. Mr. Sanderson relied only on his memory for the information he reported to Ms. Bollinger.

         Adding to the confusion, two Post Office reports prepared in June 2013 recite that Mr. Kaminski's fall happened in December 2012. The June 11, 2013 Form 1700 accident report lists the accident date as December 21, 2012. Likewise, the June 11, 2013 Form 1769 accident report provides the same date as the date of the accident. Ex. 30 at 1. And, the Form 1769 recites that Mr. Kaminski's fall occurred “[i]n December 2012, around the 21st, or the last big snow storm during that month . . . .” Id. at 2. Mr. Sanderson testified that he provided this date as his best estimate. He did not base this date on any notes he took or any information that Mr. Kaminski had provided him. Mr. Sanderson believes the fall occurred on December 21, 2012, because he remembers that it was a bad week of snow and ice.

         Not to be outdone, Mr. Kaminski's written reports add their own layer of confusion. Mr. Kaminski first identified the date of his fall as February 27, 2013, when he filed an administrative claim with USPS. On December 7, 2013, more than nine months after the fall, Mr. Kaminski completed and signed a Standard Form 95. In Box 6 of that form, Mr. Kaminski asserted that his fall occurred on February 27, 2013. Mr. Kaminski also wrote a written narrative he attached to the form. It specified that the fall occurred “on or about February 27, 2013.” Ex. 57 ¶ 19. Some 18 months after he fell, on December 19, 2014, Mr. Kaminski filed his Complaint in this lawsuit. Doc. 1. His Complaint also identifies the date of his fall as February 27, 2013. Id. ¶ 8.

         When Mr. Kaminski sought medical treatment for his injuries, he provided other dates. On a patient information form prepared for Dr. Parmar, Mr. Kaminski identified the date of his injury as “mid-winter.” After their visit, Dr. Parmar recorded that Mr. Kaminski had fallen around February or March of 2013. Later, Mr. Kaminski reported to his physical therapist that he'd fallen in January 2013. To highlight the vague dates Mr. Kaminski gave to medical providers about his fall, the government introduced Mr. Kaminski's medical records from 2008, when he sustained a knee injury. On his patient information form for that knee injury, Mr. Kaminski provided the exact date of his injury-December 23, 2008.

         Mr. Kaminski testified at trial that he realized he had provided the incorrect date of his fall when he was reviewing his personal calendar.[5] He knew that February 25 was the correct date because he had taken vacation days at the end of the previous week and was returning to work the morning of February 25. On July 31, 2015, Mr. Kaminski served responses to defendant's interrogatories that-for the first time-identified the date of the fall as February 25.

         As described above, the Post Office's employees failed to report Mr. Kaminski's fall on the day that it happened. And, when Mr. Sanderson finally made the report, he estimated the date of the fall using nothing more than his memory. Although the Post Office's reporting provides a poor model for accurate and timely reporting of accidents, it's equally true that they provided no evidence to support Mr. Kaminski's position that he fell on February 25. Instead, considering all the evidence presented at trial, the court finds that Mr. Kaminski fell on Wednesday, February 27, 2013. This finding requires the court to decide an important factual question, and on evidence that is not clear or one-sided. But, after carefully reviewing the evidence, the court finds the fall occurred on February 27 for several reasons.[6]

         First, Mr. Kaminski's testimony about the date of the fall was not as credible as Mr. Lowe's. Mr. Kaminski provided differing explanations about what caused him to remember that that the date of the fall was not February 27, but instead February 25. Mr. Kaminski testified on cross-examination that he made this discovery when reviewing his personal calendar. Mr. Kaminski first testified that he was reviewing his calendar because he was calculating the vacation days that he already had taken so that he could determine how many vacation days he had left. But this explanation doesn't make much sense. Mr. Kaminski made the date change in 2015-some two years after his fall. Mr. Kaminski never provided a plausible reason why he would review his vacation days from 2013 to determine how much vacation leave he had two years later in 2015. In any event, on redirect examination, Mr. Kaminski provided yet another reason how he discovered the actual date of his fall. His counsel showed him written discovery that defendant had served in this lawsuit. One of the requests for production of documents asked Mr. Kaminski to provide “all personal notes, logs, diaries, letters, summaries, or other documents” prepared by Mr. Kaminski that refer to his allegations in the Complaint. Ex. 43 ¶ 16. Mr. Kaminski then explained that he discovered that he had provided the wrong date of his fall when he was reviewing his personal calendar as part of his obligation to respond to defendant's discovery in July 2015.

         On cross examination, defendant's counsel suggested that Mr. Kaminski had changed the date of his fall after learning information about the weather conditions on February 27. But, Mr. Kaminski denied that he changed the date of his fall for this reason. The court cannot conclude from the evidence that Mr. Kaminski purposefully changed the date he fell to a different date with weather conditions more favorable for the merits of his claims-and a date that would preclude defendant from asserting certain defenses. After considering all the evidence, the court concludes that Mr. Kaminski genuinely was confused about the date of his injury.

         Mr. Kaminski provided the February 27 date in his administrative claim and in his Complaint in this lawsuit. He says he realized this was the wrong date after he reviewed his personal calendar. But the only evidence to corroborate the February 27 date is Mr. Kaminski's memory that he had taken vacation days at the end of the previous week. And, he contends that his fall occurred on his first day back to work from those vacation days-on Monday, February 25. But Mr. Kaminski's personal calendar also shows that he took a vacation day on Tuesday, February 26. So, he also was returning to work after a vacation day on Wednesday, February 27.

         Still, the court finds that Mr. Lowe's testimony about the date of the accident is more credible. Mr. Lowe had a specific recollection of the times he observed Mr. Kaminski and his truck at the Post Office, and when they spoke with one another. And Mr. Lowe's work schedule and time records are consistent with the timeline he provided in his testimony.

         Second, the court observed other instances at trial when Mr. Kaminski's testimony conflicted with other witnesses. For example, Mr. Kaminski's orthopedic surgeon testified that after he performed surgery on Mr. Kaminski's shoulder, one of the discharge instructions he gave Mr. Kaminski directed him to wear a sling on his right arm for three weeks, post-surgery. At a follow-up appointment with Dr. Parmar, Mr. Kaminski arrived not wearing the sling. Dr. Parmar reminded Mr. Kaminski of his discharge instruction and told him that he must wear the sling as he had ordered. At trial, Mr. Kaminski testified that he had spoken with someone from Dr. Parmar's office before his appointment and that person told him that he didn't need to wear the sling to his appointment. Dr. Parmar testified, however, that he has a small staff who assists him with administrative tasks and none of them provide medical advice to patients over the phone. In short, Dr. Parmar denied that anyone on his staff would have told Mr. Kaminski over the phone not to wear his sling to his appointment. And, Dr. Parmar testified, Mr. Kaminski never told him during that appointment that the reason he wasn't wearing his sling was because someone on the staff had told him not to wear it. Dr. Parmar said he would have remembered that had Mr. Kaminski told him that information.

         Also, two days after his appointment with Dr. Parmar, Mr. Kaminski's physical therapist recorded in the treatment notes that Mr. Kaminski had reported that he had been wearing his sling at all times since his operation. This statement contradicts both Mr. Kaminski and Dr. Parmar's testimony that Mr. Kaminski was not wearing his sling two days earlier during his appointment with Dr. Parmar.

         Mr. Kaminski also contradicted other disinterested witnesses. For example, his testimony about his job duties at Honeywell conflicted with his supervisor's testimony. Mr. Kaminski testified that he rarely performed overhead work and that he never worked with equipment overhead. But, Craig Chillcutt, Mr. Kaminski's supervisor at Honeywell from early 2012 through May 2014, disagreed. Mr. Chillcutt testified that although Mr. Kaminski's written job requirements did not include overhead work, he sometimes performed overhead work as part of his job duties. Mr. Chillcutt estimated that Mr. Kaminski spent 25 to 50% of his time reaching overhead. Also, Mr. Chillcutt provided specific testimony that made his testimony believable. He explained that Mr. Kaminski's job required him to test sensors in ovens, and sometimes those sensors were placed above the head. So, according to Mr. Chillcutt, Mr. Kaminski had to reach overhead to test the sensor.

         These other examples of conflicting testimony demonstrate that Mr. Kaminski may have had confusion or an inability to remember details as precisely as others. This limitation provides another reason that Mr. Kaminski's testimony about the date of his fall is not as credible as Mr. Lowe's testimony on that question. In sum, based on all the evidence presented at trial, the court finds that Mr. Kaminski's fall occurred on Wednesday, February 27-the original date that Mr. Kaminski specified as the date he fell.

         Treatment ...


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