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Gunville v. United States

United States District Court, D. South Dakota, Central Division

December 4, 2013


For William Gunville, Plaintiff: Robert B. Anderson, LEAD ATTORNEY, May, Adam, Gerdes & Thompson, Pierre, SD.

For The United States of America, Defendant: Jan L. Holmgren, LEAD ATTORNEY, U.S. Attorney's Office (Sioux Falls, SD), Sioux Falls, SD.

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Plaintiff William Gunville (" Gunville" ) brought this negligence action against Defendant United States of America (" the Government" ) under the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 1346, to recover damages arising from a slip and fall accident that occurred at the Indian Health Service (" IHS" ) hospital in Eagle Butte, South Dakota. Doc. 1. The Government filed a motion for summary judgment, Doc. 15, which Gunville opposed, Doc. 20. Because there are no genuine issues of material fact and the Government is entitled to judgment as a matter of law, this Court grants the Government's motion for summary judgment.

I. Facts

This Court takes the facts in the light most favorable to Gunville, as the non-moving party, and draws the facts primarily from Plaintiff's Response to Defendant's Statement of Material Facts, Doc. 19, and Plaintiff's Statement of Material Facts, Doc. 21. Gunville's slip-and-fall accident occurred on October 9, 2009, outside the old IHS hospital in Eagle Butte.[1] Gunville arrived at the IHS hospital at approximately 3:00 p.m. for a medical appointment. He parked in the IHS hospital's parking lot and entered through the hospital's main entrance, which is the most commonly used entrance. Doc. 19 at ¶ 16; Doc. 17-4 at 20-21; Doc. 21 at ¶ 5. The IHS hospital main entrance connects to the hospital parking lot via a sidewalk. Doc. 17-1. This main entrance sidewalk has a curb ramp sloping slightly downward to allow for wheelchair access to and from the IHS hospital parking lot. Doc. 19 at ¶ 24; Doc. 17-1. Perpendicular to the main entrance is a sidewalk that spans the front of the IHS hospital. Doc. 17-2; Doc. 17-3. It had been misting intermittently throughout the day on October 9, 2009, and when Gunville entered the IHS hospital he noticed that the main entrance sidewalk was wet. Doc. 17-4 at 15-17; Doc. 19 at ¶ 17; Doc. 21 at ¶ 4. Unbeknownst to Gunville, the temperature dropped while he was inside the IHS hospital, and the main entrance sidewalk went from wet to icy. Doc. 19 at ¶ ¶ 10, 21.

Meanwhile, Steve Brown Wolf, an IHS maintenance employee, had been fixing a boiler in an IHS apartment building located across the street from the hospital's main entrance. Doc. 19 at ¶ ¶ 29, 31. It was not slippery when Brown Wolf entered the apartment building at 1:00 p.m. Doc. 19 at ¶ 32; Doc. 21 at ¶ 10. Brown Wolf left the apartment building at approximately 4:00 p.m. and entered the IHS hospital through the main entrance. Doc. 19 at ¶ 34; Doc. 21 at ¶ 11. He noticed that the main entrance sidewalk had become slippery and, feeling that the situation was " starting to get dangerous," decided to put ice melt out. Doc. 19 at ¶ 34; Doc. 21 at ¶ 13. When Brown Wolf was asked during his deposition why he put ice

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melt out, he responded: " Because it had started to get slippery and that's what we do." Doc. 22-3 at 4. Brown Wolf retrieved some ice melt from the IHS hospital's loading dock and began spreading it on the sidewalk that runs perpendicular to the main entrance. Doc. 17-3; Doc. 19 at ¶ 38; Doc. 22-3 at 2-4. Brown Wolf intended to work his way west to the main entrance sidewalk. Doc. 22-3 at 3. When asked why he chose this route rather than starting to spread ice melt at the main entrance, Brown Wolf explained that the sidewalk running perpendicular to the main entrance was closest to where the ice melt was located and was on his way to the main entrance. Doc. 22-3 at 4-5.

While Brown Wolf was spreading the ice melt, Gunville exited the IHS hospital through the main entrance. Doc. 21 at ¶ 8. As he walked down the main entrance sidewalk, Gunville warned Nancy West, who had just parked her car in the parking lot and was preparing to walk up the main entrance sidewalk, to be careful because it was slippery. Doc. 19 at ¶ 23. At approximately the same time, Gunville saw Brown Wolf to his left spreading ice melt on the sidewalk that is perpendicular to the main entrance sidewalk. Doc. 19 at ¶ 28; Doc. 17-4 at 23. Immediately thereafter, Gunville, while he was walking down the curb ramp, slipped on the ice and fell, landing on his right hip. Doc. 17-4 at 22; Doc. 19 at ¶ 25; Doc. 21 at ¶ 7. When Gunville fell, Brown Wolf was approximately fifty to sixty feet to the east of the curb ramp and had yet to spread ice melt on the main entrance sidewalk or curb ramp. Doc. 19 at ¶ 35; Doc. 21 at ¶ 8. Brown Wolf during his deposition estimated it would have taken him " about a minute" to get from where he began spreading ice melt to the main entrance sidewalk. Doc. 19 at ¶ 39; Doc. 17-6 at 11. According to the administrative claim Gunville filed with IHS, his fall occurred at approximately 4:10 p.m. Doc. 19 at ¶ 7.

Gunville got up unassisted, Doc. 19 at ¶ 41, and drove to pick up his son. Doc. 17-4 at 29. Later that day, Gunville returned to the IHS hospital and went to the emergency room because he was in pain from his fall. Doc. 22-1 at 14. Gunville saw Brown Wolf at the IHS hospital and recalled Brown Wolf telling him: " I was a little late, wasn't I? Are you ok?" Doc. 21 at ¶ 6. Brown Wolf did not recall whether he made any such statement. Doc. 17-6 at 12. The parties' debate over whether any such statement constitutes some admission of fault is as close as the parties come to any genuine issue of material fact.

Gunville in his complaint alleges that the Government acted negligently by failing to use reasonable care in the maintenance of the IHS hospital sidewalks. The Government argues that it is entitled to summary judgment because it cannot be held liable for injuries caused by the natural accumulation of ice and because it exercised reasonable care towards Gunville's safety. In the alternative, the Government argues that Gunville assumed the risk of injury and that Gunville's own contributory negligence should bar him from any recovery. Gunville opposes the Government's motion.

II. Summary Judgment Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Summary judgment is not " a disfavored procedural shortcut, but rather . . . an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). On summary judgment, courts view " the evidence

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and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party." EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 686 (8th Cir. 2012) (quoting Mayer v. Countrywide Home Loans, 647 F.3d 789, 791 (8th Cir. 2011)). A party opposing a properly made and supported motion for summary judgment must cite to particular materials in the record supporting the assertion that a fact is ...

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