United States District Court, D. Kansas
MEMORANDUM OF DECISION
D. CRABTREE, UNITED STATES DISTRICT JUDGE.
February 2013, several winter storms passed through northeast
Kansas, blanketing the area with heavy
snowfall. 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. §§
trial to the court beginning on July 18, 2017, and ending on
July 20, 2017, the case now is ready for
decision. 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.
Findings of Fact
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.
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.
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. 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.
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
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
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.
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.
of Mr. Kaminski's Fall
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).
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.
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.
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.
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.
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.
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.
Kaminski testified at trial that he realized he had provided
the incorrect date of his fall when he was reviewing his
personal calendar. 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.
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
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
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.
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
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
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
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.
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
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.