In Kertz v. U.S., a federal district court recently awarded six figures in damages to a woman who fractured her neck and injured her hip in an accident when she tripped and fell in the parking lot of a U.S. Post Office in Naples.
Ms. Kertz, who had been sent to the post office to mail a package by her employer, noticed a five-inch tall, yellow wheel stop in the parking space where she left her car to go into the post office, according to the court, and stepped over it on her way into the facility. She didn’t see the wheel stop on her way back after dropping off the package, however, and tripped over it while reaching for her keys. A witness who saw the accident occur later said that he observed a piece of “rebar” driven through holes in the wheel stop and connecting it to the parking lot’s asphalt surface. According to the witness, Kertz told him that she tripped because the heel of her shoe got stuck in the rebar.
An inspection following the accident showed that the rebar extended nearly one-inch above the wheel stop. Ms. Howard, a U.S. Postal Service investigator, later completed an accident report in which she indicated that Kertz was injured when she tripped over the rebar. On Howard’s direction, a custodian photographed the scene and then used a hammer to pound the rebar below the wheel stop’s surface.
Kertz later sued the United States for negligence under the Federal Tort Claims Act and the matter proceeded to bench trial in May 2013. A federal judge in the U.S. District Court for the Middle District of Florida ultimately found that Kertz was an invitee on the post office property at the time of the accident and that the U.S.P.S. breached the duty of care it owed her by failing to properly maintain the premises in a reasonably safe condition.
Postmaster Richard Berber testified that he inspected the parking lot on the morning of the accident and didn’t notice any rebar sticking out of the wheel stop over which Kertz fell. Berber also said that if the rebar had been sticking out of the wheel stop as depicted in the custodian’s photos, it would have “jumped right out” at him. The custodian and another worker both said that they also inspected the parking lot the same morning and didn’t notice the protruding rebar. As a result, the U.S. argued that there must have been an intervening event – a low lying vehicle disrupting the wheel stop, for example – that caused the rebar to protrude after the inspections and that it shouldn’t be held liable because it took reasonable steps to keep the property in a safe condition
Rejecting this argument, the District Court noted that two of the three postal workers who testified said rebar occasionally protruded from various wheel stops in the parking lot and that they would hammer it back into place when the noticed it. “It is clear to the Court, and the Court finds that it was clear to all three Postal Service employees, that rebar sticking an inch above the top of a wheel stop posed a significant and unreasonably dangerous condition and safety hazard to the patrons of the post office,” the judge concluded.
While the workers said they didn’t see any protruding rebar on the day in question, the Court found the evidence sufficient to show that the workers must have simply overlooked it. Specifically, the Court said there wasn’t sufficient evidence to establish the government’s theory that the rebar was kicked up by a visiting vehicle after the morning inspections. “The best that can be said is that it is possible. But there is no convincing physical evidence visible in the photographs which would support a reasonable view that this actually occurred here,” the Court ruled.
As a result, the Court awarded Kertz more than $138,000 in damages.
If you were recently injured in an accident at a place of business and are interested in pursuing a claim against the property owner, call the South Florida personal injury attorneys at Anidjar & Levine today. We represent clients throughout the region, including in Boca Raton, Coral Springs and Pompano Beach. Call the firm’s Ft. Lauderdale offices at 800-747-3733 or fill out an on-line “Contact Us” form.
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