United States District Court, D. South Dakota, Western Division
CYNTHIA J. LARMON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
Cynthia J. Larmon, Plaintiff, represented by Michael A.
Wilson, Barker Wilson Law Firm, LLP.
States of America, Defendant, represented by Diana J. Ryan,
U.S. Attorney's Office.
JEFFREY L. VIKEN, Chief District Judge.
Cynthia Larmon brought suit against the government pursuant
to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, to
recover damages arising from a slip and fall incident that
occurred on the sidewalks outside of the Rushmore building on
Ellsworth Air Force Base ("Base"). (Docket 1). The
government asserts Ms. Larmon is barred from recovery because
it did not have notice the sidewalk was icy on the day Ms.
Larmon fell. (Docket 20 at pp. 6-8). The government also
asserts Ms. Larmon's own negligence in failing to watch
where she was walking bars her from recovery under South
Dakota's comparative negligence statute. Id. at
2-6. On January 12, 2016, the court held a two-day court
trial. The court ordered post-trial briefing on the
application of South Dakota's collateral source rule in
the event the court found the government liable for Ms.
Rule of Civ. P. 52 provides:
In an action tried on the facts without a jury or with an
advisory jury, the court must find the facts specially and
state its conclusions of law separately. The findings and
conclusions may be stated on the record after the close of
the evidence or may appear in an opinion or a memorandum of
decision filed by the court...."
Civ. P. 52(a)(1).
court observed the demeanor and judged the weight and
credibility of all witnesses and evidence at the trial. In
making credibility determinations, the court considered the
relationship of the witnesses' interests to the outcome
of the case, the witnesses' demeanor while testifying,
the witnesses' opportunity to observe and acquire
knowledge of what they were testifying about, the extent to
which the testimony was logical and internally consistent,
and the extent to which the testimony was supported or
contradicted by other credible evidence. See Leiber v. United
States, No. 11-00699-CV-W-FJG, 2013 WL 5964427, at *1-2 (W.D.
Mo. Nov. 8, 2013) (citing Perkins v. General Motors
Corp., 709 F.Supp. 1487, 1499 (W.D. Mo.1989). The court
fully considered all of the testimony, evidence and arguments
of the parties, whether or not explicitly discussed in this
the context of a trial without a jury, courts have
consistently noted that Fed.R.Civ.P. 52(a) does not require
either punctilious detail or slavish tracing of the claims
issue by issue and witness by witness." Id .
(internal quotation marks and citations omitted) (quoting
Fair Housing in Huntington Committee, Inc. v. Town of
Huntington, New York, 316 F.3d 357, 364 (2d Cir. 2003)).
A trial court's findings satisfy Rule 52(a) if they
afford the reviewing court a clear understanding of the
factual basis for the trial court's decision.... If a
trial judge fails to make a specific finding on a particular
fact, the reviewing court may assume that the court impliedly
made a finding consistent with his general holding so long as
the implied finding is supported by the evidence.... Where
the trial court makes no direct reference to a claim but must
necessarily have found a certain fact, the appellate court
will imply such a finding.
1 (quoting Reich v. Lancaster, 55 F.3d 1034, 1057
(5th Cir. 1995)).
morning of January 12, 2012, Ms. Larmon reported for work at
the Rushmore building on the Base. The temperature at the
Base on January 12, 2012, never reached above 32 degrees
Fahrenheit. (TE 53 at pp. 10-11). Ms. Larmon did not notice
any condition on the sidewalks which would have alerted her
to danger. Ms. Larmon had no windows in her office and does
not remember if she looked outside that day. At approximately
4 p.m. when she was leaving work, Ms. Larmon exited from an
employee entrance of the Rushmore building, walked
approximately three steps and slipped and fell on the
sidewalk. Ms. Larmon was wearing flat-heeled shoes at the
time of the fall. As a result of the fall, Ms. Larmon
sustained a trimalleolar ankle fracture and a tibiotalar
dislocation. (TE 21 at p. 1). Ms. Larmon's injuries were
significant. See, e.g., TE 27 & 28. Ms. Larmon's injuries
are discussed more fully in the damages portion of the order.
government admits Ms. Larmon slipped on a band of ice that
formed on the sidewalk outside of an employee entrance of the
Rushmore building after moisture dripped from the roofline
onto the sidewalk below and froze. See Docket 7 at ¶ 17
(admitting that "the ice upon which plaintiff slipped
appears to have formed upon the sidewalk from the
precipitation melting on the roof of the Rushmore Center and
falling from the roofline upon the sidewalk."); TE 54 at
p. 1 (Ground Mishap Report) (noting that the gutter above the
exit door "leaks causing a slick area to form when the
weather is cold."). James Iqellerson, Ms. Larmon's
supervisor who was present at the time of her fall, testified
there was a thin band of ice from the roof, which was about a
foot wide and covered the length of the
people working at the Rushmore building, the formation of ice
on the sidewalk where Ms. Larmon fell was a known, recurring
condition. Nathaniel Patten, the Rushmore building custodian,
There [were] a lot of places around the building that would
get like that. It's common knowledge. Most people knew
about it, if not everybody knew. If it snowed within the last
couple of weeks and it just hadn't completely melted off
the roof, it's going to drip and it's going to get on
the sidewalks and there is going to be ice. And so every once
in a while you'd throw some salt on it if you had to.
Most of the time the sun would evaporate it, but there would
still be ice and you had to just kind of be careful.
(Docket 16-2 at p. 19:9-19).
Patten testified the sidewalk got "really bad"
where Ms. Larmon fell. See id. at 22: 12-24. Brittany
Oswald, a member of the Military Flight Personnel, who among
others was responsible for the snow removal around portions
of the Rushmore building, testified via deposition that she
observed icicles melting at the location where Ms. Larmon
fell "all the time, " (Docket 16-1 at p. 33:8-14),
and at that particular door the icicles would melt and
"create ice on the concrete because the wind would blow
it frozen" creating ice. Id. at 34:15-21. Ms.
Oswald described the location as particularly icy during the
winter months. Id. at 8:8-10.
Clermont, a former employee at the Base who worked at the
Rushmore building, testified via deposition that the portion
of the sidewalk where Ms. Larmon fell was particularly icy,
even for the state of South Dakota. See Docket 16-3 at p.
13:1-21). Ms. Clermont testified:
[W]hen you shovel right there, the snow from the roof would
melt and form icicles, and then if it got any hotter, those
icicles would melt along with the snow on the roof, and it
would fall onto the ground. And, right there[, ] there was no
sun. It was a shaded area. And so that spot in particular was
not exactly the safest spot. It was icy more often than not.
court received differing explanations for the cause of the
ice on the sidewalk where Ms. Larmon fell. Multiple witnesses
testified the ice was caused by snow melting on the roof of
the Rushmore building and dripping onto the sidewalk below.
Robin Hill, the government's Fed.R.Civ.P. 30(b)(6)
witness, testified via deposition that the Rushmore building
had a drip edge that was not properly designed and caused
water from the roof to run back into the roofs soffit, which
was underneath the building's eaves. See Docket 16-4 at
p. 11:7-20; see also TE 32 (Ms. Clermont provided the same
explanation in her statement.); Docket 16-2 at p.
33:16-23 (Mr. Patten opined that icicles accumulated
everywhere around the Rushmore building because there were no
gutters and most probably dripped, on the sidewalk.).
Regardless of the cause of the ice, the crux of Ms.
Larmon's complaint is not what caused the ice to form on
the sidewalk but whether the government's response, or
lack thereof, to the sidewalk's known, recurring icy
condition was negligent.
Base contracts with civilians to perform the majority of the
snow removal at the Rushmore building. (Docket, 16-2 at p.
11:15-18) (Mr. Patten's deposition). These contracts did
not cover all of the sidewalks surrounding the Rushmore
building. Id. at p. 11:22-24. The sidewalk where Ms.
Larmon fell was among those sidewalks that were not
maintained under a civilian contract. Id. at
15:20-16:7. The sidewalk was maintained by military personnel
who officed in the Rushmore building. Id . Military
personnel would remove snow from side:-Valks which were
nearby to the "wing" or "quad" office in
which they worked. Id . Military personnel were
responsible for shoveling those sidewalks, including the
sidewalk where Ms. Larmon fell, within one hour of snowfall.
See Docket 16-1 at p. 5: 14-6:7 (Ms. Oswald's
deposition). Military personnel were responsible for salting
or sanding the sidewalks after they were shoveled and for
maintaining sand and salt supplies. Id.
sidewalk where Ms. Larmon fell was maintained in an informal
manner. Lower ranking military personnel performed the
shoveling and salting duties. Ms. Oswald testified military
personnel typically satisfied the one-hour shoveling
requirement by shoveling the sidewalk when they arrived in
the morning "and that's it." Id. at p.
6: 1-3. Although Ms. Oswald testified "one, two, or
three, maybe, people" would salt the sidewalk, see id.
at p. 9: 12-15, she never salted the sidewalk herself despite
it containing a known icy spot, she could not identify with
certaintY any persons who might have salted the sidewalk, and
did not provide any indication as to how often the sidewalk
was salted. Ms. Oswald testified to the existence of snow
removal schedules and military personnel shoveling and
salting the sidewalk as needed. The court, however, received
no time sheets or snow removal schedule demonstrating the
regular removal of snow and ice or any documentation
establishing that the sidewalk was examined throughout the
Clermont testified that salt or sand used to regularly be
present at the exit Ms. Larmon used but the supply had run
out for a period of time prior to Ms. Larmon's fall on
January 12, 2012. (Docket 16-3 at p. 9:8-12). Ms. Larmon does
not remember seeing any salt available for use by the door
where she fell, and she did not have any salt or sand on the
clothes she wore on the day of the incident. Ms. Larmon and
Ms. Clermont testified there was a sign on that employee door
instructing pedestrians to watch out for falling icicles. See
Docket 16-3 at p. 15:21-24. The court finds Ms. Larmon's
and Ms. Clermont's testimony credible in both regards and
finds that no salt or sand was present for Ms. Larmon to use
on January 12, 2012. No one reported the formation of ice on
the sidewalk to military personnel on January 12, 2012.
Larmon brings this case under the Federal Tort Claims Act
("FTCA"). The FTCA waives the government's
sovereign immunity protection for:
[M]oney damages... for injury or loss of property, or
personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government while
acting within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable to the ...