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Szydlo v. United States

United States District Court, D. Connecticut

January 12, 2017

REGINA SZYDLO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant/Third-Party Plaintiff,
v.
ROMAN LANDSCAPING & FENCING, Third-Party Defendant.

          MEMORANDUM OF DECISION DENYING UNTIED STATES OF AMERICA'S MOTION TO DISMISS [DKT. NO. 28]; DENYING ROMAN LANDSCAPING & FENCING'S MOTION TO DISMISS [DKT. NO. 27]

          VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE.

         Plaintiff Regina Szydlo (“Szydlo”), a resident of Norwich, Connecticut, brings negligence claims against the United States of America (“USA”) under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), as well as against Roman Landscaping & Fencing (“Roman”). [Dkt. No. 31.] Defendant USA moved to dismiss Szydlo's claim against it [Dkt. No. 28] and Szydlo opposed the motion [Dkt. No. 37]. USA additionally filed a Reply [Dkt. No. 38] and Szydlo obtained leave from the Court [Dkt. No. 40] to file a Sur-Reply [Dkt. No. 42].

         In addition, USA filed a Third-Party Complaint against Roman seeking indemnification and apportionment of any adverse judgment in the action against Szydlo. [Dkt. No. 21.] Roman moved to dismiss the Third-Party Complaint [Dkt. No. 27] and USA opposed the motion [Dkt. No. 32].

         The Court discusses each Motion to Dismiss in turn. For the reasons that follow, USA's Motion to Dismiss Is DENIED, and Roman's Motion to Dismiss the Third-Party Complaint is DENIED.

         I. USA's Motion to Dismiss Szydlo's Claims

         a. Factual Background

         Szydlo filed a Motion to Amend the Complaint on July 18, 2016 [Dkt. No. 24], and filed an Amended Complaint on August 11, 2016, one day after USA and Roman Landscaping filed their Motions to Dismiss. [Dkt. Nos. 27 (Roman's Motion), 28 (USA's Motion), 31 (Amended Complaint).] In response, the Court issued an Order granting Plaintiff's Motion to Amend, and stating “The Court will consider the pending motions to dismiss in light of the Amended Complaint.” [Dkt. No. 29.]

         On a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the Court accepts as true “all material factual allegations in the complaint.” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Unlike a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court also has “the power and obligation” to consider “evidence outside the pleadings, such as affidavits, ” to resolve questions of fact and determine whether subject matter jurisdiction exists. APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); see also Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000) (stating Courts refer to evidence outside the pleadings on a motion to dismiss for lack of subject matter jurisdiction). Accordingly, the following facts are taken from the material facts alleged in Szydlo's Amended Complaint and the exhibits to the parties' briefing regarding dismissal.

         Throughout the relevant time period, USA had possession and control of certain property in Gales Ferry, Connecticut. [Dkt. No. 31 (Amended Complaint) at 1-2.] On that property was a post office open to the public (the “Post Office”), as well as adjacent sidewalks and parking areas. Id. at 2.

         Pursuant to a contract between USA and Roman, Roman “was responsible . . . for the winter maintenance of the sidewalks/walkways and parking areas adjacent to the post office, including the sidewalk/walkway that is the subject of this lawsuit.” Id. at 4. The contract between USA and Roman states, in relevant part:

The supplier will provide all necessary labor, equipment, materials, supplies and supervision to provide snow services as listed herein.
If the accumulation of snow exceeds two (2) inches, the supplier shall commence the snow operation without further notification, in accordance with the schedule specified below.
The supplier will plow/remove snow from the employee parking, the customer parking, the truck/loading dock, the sidewalks/steps/ramps, and the sidewalks abutting the property. The entire area is an estimated 9, 000 square footage. The supplier will apply salt/sand only when requested by the USPS . . .

[Dkt. No. 37-2 at 17-18.]

         Despite the express terms of the contract, Roman consistently removed snow and applied salt and sand without USA's request, even where less than two inches of snow had accumulated. Charlene Perry (“Perry”), the Officer-in-Charge of the Post Office, explained that “during [my] four years as [Officer In Charge] of the [Post Office], I did not direct, nor to my knowledge [did] anyone else on my staff direct, Roman as to how to complete the contract and remove snow and/or place ice and/or sand.” [Dkt. No. 28-2 at 4.] Michelle Laflamme (“Laflamme”), a Post Office employee, confirmed that Roman plows and treats the Post Office grounds whenever it snows, without request from her. [Dkt. No. 37-4 at 60-65.]

         While Roman regularly treated the Post Office grounds, Roman did not warn Post Office patrons of dangerous snow and ice conditions, and had “no responsibility to place warning signs or cones to warn pedestrians of icy conditions.” [Dkt. No. 37-3 (Perry Deposition) at 70-71 (“[T]o your knowledge, did the USPS give any sort of responsibility to any other party, or Roman, regarding putting warning signs or any type of warnings for customers at the Gales Ferry post office? A. No.”)].

         USA and Roman have not modified in writing the terms of their contract to reflect Roman's general practice of treating the Post Office grounds for winter weather conditions without request. In fact, Perry had not reviewed the winter weather provision of the contract prior to February 4, 2014. [Dkt. No. 37-3 (Perry Deposition) at 61 (“. . . you had not reviewed the contract marked as Exhibit D before the February 4, 2014 incident? A. Correct.”).] However, USA and Roman have since reviewed and modified in writing other terms of their contract. [Dkt. No. 37-2 at 2, 4 (written modifications dated 10/1/14).]

         It snowed five inches on February 3, 2014, but did not snow on February 4, the day Szydlo fell. [Dkt. No. 28-4 at 2.] A letter from a Consulting Meteorologist states:

The low of 19 degrees [on February 4, 2014] occurred during the predawn hours. The high that afternoon was about 35 degrees. At the time in question (approximately 9:40am on February 4, 2014), weather conditions in Gales Ferry included a clear sky, a temperature of 27 degrees, wind from the northeast at 8 miles per hour, and visibility of about 7.0 miles. There was about 4.0” of snow present on untreated, undisturbed ground surfaces. It is likely that there were also some icy spots present on untreated surfaces. These would have begun forming the previous afternoon.

[Dkt. No 28-5 at 2.]

         Roman's itemized bill indicates Roman plowed the Post Office property once on February 4, 2014, administered sand once, and administered one “walk and ice” treatment.” [Dkt. No 28-4 at 2.] The bill does not indicate what time Roman treated the Post Office sidewalk, but Perry's Affidavit indicates “Roman had finished applying the snow melt and plowing before the accident occurred.” [Dkt. No. 28-2 at 5.] Laflamme confirmed the Post Office grounds had already been plowed and treated with Ice Melt when she arrived at work around 8:30 am on February 4. [Dkt. No. 37-4 at 60, 67.]

         On the morning of February 4, 2014, Szydlo entered the Post Office as a customer, and at 9:40am she exited the Post Office, slipped, and fell on the adjacent sidewalk, which Szydlo alleges was covered in ice. [Dkt. No. 31 at 2.] Plaintiff sustained injuries including:

(a) Spiral fractural of the lateral malleolus of the right ankle;
(b) Avulsion fracture of the medical malleolus of the right ankle;
(c) Subluxation of the talus;
(d) Comminuted fracture with bleeding;
(e) Fear of the development of early onset traumatic ...

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