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Frazza v. United States

January 7, 2008

LUKE FRAZZA AND MARY FRAZZA, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiffs, Luke and Mary Frazza, bring this action against Defendant, the United States of America, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Luke Frazza ("Mr. Frazza") is a photographer for a news media organization, who was assigned to photograph the President of the United States at the White House. During the course of that assignment, Mr. Frazza slipped and fell, sustaining injuries to his back and spinal cord. Mr. Frazza alleges that his fall and resulting injuries were caused by Defendant's negligence; his wife, Mary Frazza ("Mrs. Frazza"), claims loss of consortium and services. Defendant has moved for summary judgment on the issue of liability, asserting that Plaintiffs' negligence-based claims fail because Plaintiffs cannot prove a breach of an applicable and defined standard of care. Upon a searching review of Defendant's Motion for Summary Judgment, Plaintiffs' Opposition, Defendant's Reply, the exhibits attached to those filings, the relevant statutes and case law, and the entire record herein, the Court shall grant Defendant's Motion for Summary Judgment and shall dismiss this case in its entirety.

I. BACKGROUND

The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h) (formerly Rule 7.1(h)), and that Plaintiffs were advised of the Court's strict compliance with the local rules in the Scheduling and Procedures Order entered on October 31, 2006 and at the Status Conference held in this matter on May 4, 2007. The local rules for summary judgment "assist[] the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively." Jackson v. Finnegan, Henderson, Farabow, Garret & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). "Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes. . . . The procedure contemplated by the rule thus isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record." Id. (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980)).

In particular, Local Civil Rule 56.1 requires that each party submitting a motion for summary judgment attach a statement of material facts as to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement.*fn1 The party opposing such a motion must, in turn, submit a statement of genuine issues enumerating all material facts that the party contends are at issue and thus require litigation. See LCvR 56.1. Where the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. LCvR 56.1. As the D.C. Circuit has emphasized, "[LCvR 56.1] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson, 101 F.3d at 151.

Defendant complied with its obligation pursuant to Local Civil Rule 56.1 by submitting, along with its Motion for Summary Judgment, a Statement of Material Facts Not in Genuine Dispute (hereinafter "Def.'s Stmt.") that sets forth in numbered paragraphs Defendant's factual assertions, supported by precise citations to the record. Plaintiffs, however, failed to carry their burden under Local Civil Rule 56.1, because they did not submit a "separate concise statement of genuine issues," along with their Opposition. See LCvR 56.1. Indeed, Plaintiffs' Opposition does not even attempt to controvert Defendant's specific factual assertions. See generally Pls' Opp'n.*fn2 In light of this failure, pursuant to Local Civil Rule 56.1, in resolving the instant motion, the Court assumes that the facts identified by Defendant in its Statement are admitted. See LCvR 56.1. In addition, to the extent that Plaintiffs' "Relevant Facts" section adds details not included in Defendant's Statement but supported by citations to record evidence, the Court credits those assertions below.

A. The Circumstances of Mr. Frazza's Injury

The facts of this case present a rather straightforward negligence claim. Plaintiff Luke Frazza is a photographer with Agence France-Presse ("AFP"). Def.'s Stmt. ¶ 1; Compl. ¶ 3. In January 2005, Mr. Frazza was assigned to cover the White House and take pictures of the President of the United States. Def.'s Stmt. ¶ 1; Compl. ¶ 3. As a result, Mr. Frazza had access to portions of the White House complex. Def.'s Stmt. ¶ 1. On January 23, 2005, there was a heavy snow storm in the Washington, D.C. area. Compl. ¶ 5; Pls' Opp'n at 3 (citing Pls' Opp'n, Ex. 3 (3/14/07 Tr. of Dep. of L. Frazza) at 15:21-16:8 (hereinafter "Frazza Dep.")). On that day, Mr. Frazza was carrying out his duties at the White House, and was moving from the North Portico driveway to the south lawn to photograph the President departing by helicopter. Pls' Opp'n at 3 (citing Pls' Opp'n, Ex. 3 (Frazza Dep.) at 45:18-46:19. On the way, Mr. Frazza decided to drop off some of his equipment at his desk within the White House press area. Id.; Pls' Opp'n, Ex. 3 (Frazza Dep.) at 45:18-47:5. While carrying his usual complement of equipment, Mr. Frazza slipped and fell as he entered a doorway leading from the outside into the press lunch area of the White House. Def.'s Stmt. ¶ 2; Def.'s MSJ, Ex. 3 (Frazza Dep.) at 32:17-24, 49:16-25.*fn3 Mr. Frazza believes that the vinyl tile surface of the floor where he slipped was wet at the time. Def.'s Stmt. ¶ 3; Def.'s MSJ, Ex. 3 (Frazza Dep.) at 49:19-25; 52:20-53:9. Mr. Frazza does not, however, recall whether his pants were wet after he fell, or whether he felt cold after falling. Id. at 53:4-9. In the "Relevant Facts" section of their Opposition, Plaintiffs describe the floor where Mr. Frazza fell as wet, but not as icy. Pl's Opp'n at 3.

Plaintiffs' Complaint alleges that Mr. Frazza sustained serious and permanent injuries to his back and spinal cord as a result of his fall at the White House on January 23, 2005, and that his injuries "caus[e] constant pain and inhibit[] him in every aspect of his life." Compl. ¶ 5.*fn4

Plaintiffs further allege that "[a]s a direct and proximate result of Mr. Frazza's injuries, he has incurred and will incur medical and related expenses," as well as a loss of earnings, impairment of earning capacity, and significant physical and emotional pain and suffering. Id. ¶ 6. Mrs. Frazza "makes a claim for the loss of consortium and services caused by" Mr. Frazza's injuries. Id. ¶ 9.

B. Plaintiffs' Proposed Expert's Findings

Pursuant to the Court's Scheduling and Procedures Order and Federal Rule of Civil Procedure 26(a)(2), Plaintiffs identified Dr. Randall Atlas, "a safety and security consultant who is a certified professional with the American Society of Industrial Security (ASIS) and is affiliated with the American Society of Safety Engineers," as an expert to "testify as to the standard of care in building maintenance during inclement weather." Def.'s Stmt. ¶ 4; Def.'s MSJ, Ex. 4 (Pls' Expert Witness Stmt) ¶ 5. In his January 26, 2007 Report, Dr. Atlas describes himself as an "expert on human factors, ergonomics, and architectural safety issues." Def.'s MSJ, Ex. 1 (1/26/07 Atlas Rep.) at 1; see also Pls' Opp'n, Ex. 9 (Atlas Curriculum Vitae and Testifying Experience).*fn5 Dr. Atlas' Report describes an inspection he conducted of the site of Mr. Frazza's fall on October 20, 2006, and asserts that "Mr. Frazza stated that on the day of the accident, there were no protective mats, nor any cones warning of the wet surfaces." Def.'s MSJ, Ex. 1 (Atlas Rep.) at 1.

Dr. Atlas' Report identifies the applicable standard for evaluating a surface made up of the type of vinyl tile on which Mr. Frazza allegedly fell as American Society of Testing Materials Technical Publication No. 649 ("ASTM 649"). Id. at 1-2. ASTM 649 sets forth a benchmark coefficient of friction of 0.5: a coefficient of friction above 0.5 is considered acceptably safe, while a coefficient of friction below 0.5 is considered slippery. Id.; see also Def.'s Stmt. ¶ 5. During his October 20, 2006 site inspection, Dr. Atlas personally conducted tests of the tile where Mr. Frazza fell, under wet, dry, and icy conditions. Id. ¶ 6; Def.'s MSJ, Ex. 2 (3/22/07 Atlas Dep. Tr.) at 24:20-27:8. Dr. Atlas determined that the floor where Mr. Frazza fell had a coefficient of friction of 0.57 when dry, and accordingly testified during his deposition that, when dry, the tile floor was safe and within the standard of care defined by ASTM 649. Def.'s Stmt. ¶ 7; Def.'s MSJ, Ex. 1 (Atlas Rep.) at 1-2; Def.'s MSJ, Ex. 2 (Atlas Dep.) at 39:4-6, 50:4-7.

During his deposition, Dr. Atlas testified that his testing revealed that when wet, the particular floor where Mr. Frazza fell had a coefficient of friction of 0.85, and was therefore "actually more slip resistant" than when dry. Def.'s Stmt. ¶ 8; Def.'s MSJ, Ex. 2 (Atlas Dep.) at 51:1-52:19.*fn6 Dr. Atlas explained that he did not include the results of his wet floor test in his Report because "it was unusual to find where the coefficient of friction when it was wet was actually greater than when it was dry," but also testified that such results were possible and that he did not think his data was flawed because he rechecked his results. Id. at 51:15-52:6. The parties do not dispute--and Dr. Atlas testified--that a coefficient of friction of 0.85 is well above the standard of care set by ASTM 649. Def.'s Stmt. ¶ 8; Def.'s MSJ, Ex. 2 (Atlas Dep.) at 51:16-19.*fn7 In his Report, Dr. Atlas stated that his "testing confirmed that the floor, in icy conditions, had a coefficient of friction of 0.34," which "falls below the [coefficient of friction] required by ASTM to maintain a non-slippery environment." Def.'s MSJ, Ex. 1 (Atlas Rep.) at 2. During his deposition, Mr. Frazza testified that there was a heavy snowfall on the morning on which he fell and that a snow emergency was in effect in Washington, D.C. Pls' Opp'n, Ex. 3 (Frazza Dep.) at 16:15-10; 19:6-24. Nevertheless, in both his deposition testimony and his Opposition, Mr. Frazza did not describe the floor where he fell as icy, but rather described it as wet. Id. at 49:19-25; Def.'s MSJ, Ex. 3 (Frazza Dep.) at 53:2-9; Pls' Opp'n at 3. Furthermore, Dr. Atlas testified during his deposition that Mr. Frazza never indicated to him that there was ice on the floor on which he fell. Def.'s Stmt. ¶ 9; Def.'s MSJ, Ex. 2 (Atlas Dep.) at 55:6-12. The record is therefore devoid of evidence that the floor on which Mr. Frazza slipped was icy when he stepped on it.*fn8 In addition, as Defendant notes, during his deposition, Dr. Atlas acknowledged that he did not consider the type of vinyl flooring in place where Mr. Frazza allegedly slipped to be an unsafe choice, that it is a "commonly used architectural material," and that he was "comfortable in stating that it did not violate any building codes." Id. at 36:14-37:2, 54:17-55:5.

In addition to discussing ASTM 649, Dr. Atlas' Report and his deposition testimony contain his opinion that "it is customary and standard practice to have mats and warning cones at entrances to buildings that experience winter conditions, especially in the Northeast United States and Washington, DC." Def.'s MSJ, Ex. 1 (Atlas Rep.) at 2; Pls' Opp'n Ex. 7 (Atlas Dep.) at 75:4-10. Dr. Atlas' Report and deposition testimony also discuss his observation of warning cones and floor mats in building entrances in Washington, D.C. during his visit to the city on a rainy day for his October 20, 2006 site inspection. Def.'s MSJ, Ex. 1 (Atlas Rep.) at 2; Pls' Opp'n Ex. 7 (Atlas Dep.) at 74:1-75:3. During his deposition, Dr. Atlas acknowledged that many of the buildings he observed on October 20, 2006 had floor coverings other than vinyl tiles, that mats and cones were not used in all buildings he passed, and that areas where the public is expected to travel might be "handled differently" than areas not commonly used by the public. Pls' Opp'n, Ex. 7 (Atlas Dep.) at 77:15-79:21. Nevertheless, in his Report Dr. Atlas concludes:

It is my opinion, as an expert in slips, trips and fall accidents, that this accident was foreseeable and preventable. Had the White House maintenance staff placed mats at the foyer entrance, Mr. Frazza would not have slipped on the vinyl flooring. In addition, there should have been the typical cones warning individuals to watch where they are walking. . . . Had these measures been used, it ...


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