17‐640‐cv Tucker v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of December two thousand seventeen.

PRESENT: BARRINGTON D. PARKER, RICHARD C. WESLEY, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

BLANCHE TUCKER, Plaintiff‐Appellant,

v. 17‐640‐cv

UNITED STATES OF AMERICA, Defendant‐Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: Christopher D. DePalma, DʹElia, Gillooly, DePalma, LLC, New Haven, Connecticut.

FOR DEFENDANT‐APPELLEE: Alan M. Soloway, David C. Nelson, Assistant United States Attorneys, for Diedre M. Daly, United States Attorney for the District of Connecticut, New Haven, Connecticut.

Appeal from the United States District Court for the District of

Connecticut (Bryant, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Blanche Tucker appeals from a judgment of the district

court entered February 10, 2017, pursuant to a February 3, 2017 memorandum of

decision, granting a motion for summary judgment for defendant‐appellee United

States, and dismissing the complaint brought under the Federal Tort Claims Act

(ʺFTCAʺ). On appeal, Tucker argues that the district court erred in finding that a

reasonable jury could not conclude that defendant had created a foreseeably hazardous

condition. We assume the partiesʹ familiarity with the underlying facts, procedural

history, and issues on appeal.

We review de novo a district courtʹs grant of summary judgment,

ʺconstruing the evidence in the light most favorable to the non‐moving party and

drawing all reasonable inferences in its favor.ʺ Alibrandi v. Fin. Outsourcing Servs., Inc.,

(2d Cir. 2003). ʺSummary judgment is appropriate only if it can be

established that ʹthere is no genuine issue as to any material fact and that the moving

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party is entitled to a judgment as a matter of law.ʹʺ

(quoting Fed. R. Civ. P. 56(c))

(citation omitted).

The facts are construed in favor of Tucker, as the party opposing summary

judgment below. They are summarized as follows: On August 23, 2013, Tucker visited

the United States Post Office in West Haven, Connecticut to conduct business. As she

entered the post office, there was a large bug flying through the air near the customer

service desk. Tucker, upon the request of a postal worker, picked up a spray bottle

containing cleaning solution and sprayed liquid at the bug. As the now‐wet bug

sputtered towards the ground, Tucker attempted to step on the bug while it was in

midair, slipping and falling in the process. There is no evidence that the floor was wet

before Tucker slipped and fell. The post office custodian, however, testified that after

Tucker fell he noticed that a small area of the floor was covered with liquid. Tucker

alleges that she slipped in this liquid, the liquid had come from the spray bottle, and she

was injured due to the negligence of the postal worker.

The FTCA sets out a limited waiver of sovereign immunity for selected

tort claims. Caban v. United States,

(2d Cir. 1984). When a tort claim

arises ʺ[t]he United States shall be liable . . . in the same manner and to the same extent

as a private individual under like circumstances.ʺ

; see

§ 1346(b)(1).

This Court applies the law of the state where the claim would accrue if the defendant

were a private individual, which is usually the state where the incident occurred.

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Caban,

(citing

(b)(1)). Here, as the episode was in the state

of Connecticut, we apply Connecticut law.

Under Connecticut law, ʺthere is an ascending degree of duty owed by the

possessor of land to persons on the land based on their entrant status, i.e., trespasser,

licensee or invitee.ʺ Morin v. Bell Court Condo. Assʹn, Inc.,

(Conn.

1992) (citations omitted). Ordinarily, when the plaintiff is a business invitee, as Tucker

undisputedly was, she must establish that the defendant had actual or constructive

notice ʺof the specific unsafe condition which causedʺ the injury to demonstrate that the

defendantʹs failure to remedy the danger was a breach of duty. Baptiste v. Better Val‐U

Supermarket, Inc.,

(Conn. 2002) (citations omitted). Tucker contends

that where ʺthe defendantʹs conduct created the unsafe condition, proof of notice is not

necessary . . . because when a defendant itself has created a hazardous condition, it

safely may be inferred that it had knowledge thereof.ʺ Kelly v. Stop and Shop, Inc.,

(Conn. 2007) (citations omitted).

This inference is only appropriate, however, ʺwhen the defendant or its

employees created an obviously hazardous condition.ʺ DiPietro v. Farmington Sports

Arena, LLC,

, 960‐61 (Conn. 2012) (emphasis added) (holding that an

inference of notice was inappropriate where the defendant selected indoor carpeting

that was not foreseeably hazardous). Tucker, therefore, must ʺprovide an evidentiary

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foundation from which a reasonable jury could [find] that the defendant[] . . . had notice

of the potential dangerousnessʺ of the situation.

. She failed to do so here.

A reasonable jury could not conclude that the Postal Service created an

obviously hazardous condition. It was not reasonably foreseeable to a postal employee

that handing a patron a spray bottle of cleaning fluid would lead the patron to spray

enough liquid into the air to create a slick spot, attempt to squash a bug midair, and

then step onto and slip in that slick spot. Although it made little sense for the postal

employee to hand Tucker a bottle of cleaning fluid to kill a flying bug, we cannot say

that a reasonable employee would have regarded the handing over of the bottle to

create a foreseeably hazardous condition.

Accordingly, the Postal Service did not

breach its duty to Tucker.

Tucker argues that the district court improperly reached foreseeability sua

sponte and should only have considered the issue of the Postal Serviceʹs notice of the

dangerous condition. We disagree. Foreseeability was properly before the district

court because Connecticut law treats a defendantʹs affirmative act creating a condition

as an aspect of notice. See

(ʺRather than acting as an alternative to notice, the

affirmative act rule allows an inference of notice when circumstantial evidence shows

that the defendant knew or should have known of the dangerous condition because it

was a foreseeably hazardous one that the defendant itself created.ʺ).

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We have considered Tuckerʹs remaining arguments and conclude they are

without merit. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

FOR THE COURT:

Catherine OʹHagan Wolfe, Clerk

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