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Larmon v. United States

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

July 29, 2016


          Cynthia J. Larmon, Plaintiff, represented by Michael A. Wilson, Barker Wilson Law Firm, LLP.

          United States of America, Defendant, represented by Diana J. Ryan, U.S. Attorney's Office.


          JEFFREY L. VIKEN, Chief District Judge.


         Plaintiff Cynthia Larmon brought suit against the government pursuant to the Federal Tort Claims Act, 28 U.S.C. ยงยง 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. Larmon's injuries.

         Federal 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...."

         Fed. R. Civ. P. 52(a)(1).

         The 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 order. Id.

         "In 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.

         Id. at 1 (quoting Reich v. Lancaster, 55 F.3d 1034, 1057 (5th Cir. 1995)).


         On the 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).[1] 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.

         The 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.").[2] 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 sidewalk.[3]

         To 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, testified:

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).[4]

         Mr. Patten testified the sidewalk got "really bad" where Ms. Larmon fell. See id. at 22: 12-24.[5] 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.

         Precious 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.

         Id. at p. 13:14-21.

         The 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.)[6]; 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.

         The 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.

         The 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 day.

         Ms. 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.


         Ms. 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 ...

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