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McEwen v. United States

April 25, 2006


The opinion of the court was delivered by: Simandle, District Judge


This "slip-and-fall negligence" action was brought by Plaintiff against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, arising from injuries sustained by Plaintiff on June 23, 1998 while performing custodial work at Fort Dix as the employee of an independent contractor. Defendant has moved for summary judgment. The principal issue is whether the United States is liable for a slippery floor condition which allegedly caused injury to an employee of its independent floor maintenance contractor; for such liability to arise under New Jersey law, Plaintiff must demonstrate that the Defendant retained control over the manner and means by which the floor maintenance was performed or actively interfered with the manner or method of the work being performed. Because under the circumstances of this case Plaintiff cannot meet this burden under any reasonable view of the facts, Defendant is entitled to summary judgment for reasons discussed herein.


Plaintiff Theresa McEwen was an employee of Kenyon Building Maintenance ("Kenyon"), who alleges she fell on a slippery floor at the Child Development Center at Fort Dix, New Jersey, a floor which her employer had the contractual duty to maintain. Kenyon was awarded a contract by the United States Army in 1997 to clean the premises at Fort Dix, New Jersey, a property owned by the United States. According to the contract, Kenyon was responsible for, among other things, mopping, sweeping, waxing and spray buffing all accessible floors. (Def. Ex. 2, Part I, Sec. C, ¶¶ 2.13-2.16.) The agreement provided: "the cleaning of lobbies, corridors, offices and restrooms resulting in a temporarily wet or slippery floor surface shall be accomplished so that it will not be necessary for personnel to cross the wet surface to gain access to other areas." (Id. at ¶ 1.16.6.) Similarly, the agreement stated that "[a]fter being mopped, the floor shall have a uniform appearance, with no . . . standing water." (Id. at ¶ 2.15.) Kenyon was also required to apply "a uniform coating of non-skid floor finish." (Id. at ¶ 2.13.) The contract also required Kenyon to "furnish all materials . . . [and] equipment and tools necessary to perform the work defined in the contract." (Id. at ¶¶ 4.1, 4.5.) Kenyon's contractual duties thus included maintaining the floors in the Child Development Center.

Additionally, under the terms of the agreement: "All rules of safety which are or may be imposed upon the contractor by Federal, State or Municipal Code, and the applicable Installation Regulations shall be effectively carried out in the performance of the contract." (Def. Ex. 2 ¶ H.3.) Moreover, the contract required the Contractor to establish "a comprehensive safety program," maintain "all equipment and facilities . . . in accordance with safe engineering practices," and "control the work situation to minimize safety hazards." (Id. Part I, Sec. C, ¶ 1.16.2.) Kenyon was also responsible for "display[ing] . . . warning signs" such as "Caution -- Wet Floor," "in all areas where custodial operations may cause traffic obstruction or personnel hazard." (Id. at ¶ 1.16.4.)

Plaintiff, Theresa McEwen, was employed by Kenyon as a custodial worker at the Child Development Center at Fort Dix. Plaintiff typically worked the day shift, between 7:30 A.M. and 4:00 P.M. (Def. Ex. 6, Pl. Dep. Tr., 17:20-25.) According to her deposition testimony, Plaintiff's responsibilities included cleaning out sinks, emptying trash and washing the floors in the kitchen. (Id. at 16:1-17:3.) Plaintiff maintains that with the exception of cleaning up spills that were reported, during the day shift she did not clean floors other than in the kitchen.*fn1

(Id.) For example, Plaintiff testified that after the students ate breakfast, the teachers cleaned up the floors. (Id. at 20:8-13.) Moreover, Plaintiff maintains that when rain leaked from the ceilings, the teachers placed buckets to collect the water. (Id. at 58:19-21; 62:8-12.)

According to Darleen White, the Director of the Child Development Center at Fort Dix, she would contact Plaintiff if she needed maintenance support. (Def. Ex. 7, White Dep. Tr., 61:18-19.) For example, she testified it was Plaintiff's responsibility to mop up "the sheen," or other such slippery substances, that appeared on the floors. (Id. at 61:21-24.) In fact, the contract with Kenyon incorporated the terms of AR 680-10 paragraph 5-37(b), which provides: "Caregiving employees will not perform custodial services with the exception of wiping tables, sweeping floors, etc., after program activities and meal service, to maintain functional orderliness and cleanliness." (Def. Ex. 4.) Thus, other than cleaning up after the children in the day care center, such as after spills, the caregivers were not to perform custodial duties; that is why Kenyon was hired.

Nonetheless, Judy Beard, an Assistant Director at the Child Development Center at Fort Dix, testified that she and a co-worker kept a mop in Ms. Beard's assigned classroom to use in case of spills or other wetness on the floor. (Pl. Ex. 2T, Beard Dep. Tr., 42:10-44-18.) Ms. Beard testified that although it was her understanding that it was the cleaning person's responsibility to maintain the floors, she would handle spills when she didn't want to call a cleaning person. (Id.) In short, according to Ms. Beard:

[W]e helped [Plaintiff] out by taking care of the floors in the morning, not calling her when children had spills and cleaned up those ourselves, and it was a big building and [Plaintiff] was the only custodial person so the two of us had an agreement along with our co-workers that we would clean up spills and [Plaintiff] would thank us for doing that. (Id. at 73:22-74:6.) Plaintiff does not allege she slipped in a spill caused by the children.

[I]f the floors were humid and there was any humidity on the floors in the eating area, my co-worker and I would mop the floors prior to her coming in to clean after lunch time. (Id. at 78:17-21.)

On June 23, 1998, at approximately 7:30 A.M., Plaintiff allegedly slipped and fell while working at the Child Development Center, causing her to be injured. There are inconsistencies in Plaintiff's account of the accident. According to the Employee Report filled out by Plaintiff on July 2, 1998, Plaintiff "was stocking the restroom in Room 17 when [she] slipped on oil on the floor." (Def. Ex. 1.) The notice of tort claim filed by Plaintiff on March 24, 2000, however, states that "Theresa McEwen slipped and fell on a wet floor caused by a leaking roof which caused her to fall violently to the ground and hit her head on a standing locker." (Def. Ex. 3.) According to her deposition, Plaintiff was in a classroom with Ms. Beard and another teacher and their students when she slipped on a wet floor on her way to check the supplies in the bathroom. (Def. Ex. 6, Pl. Dep. Tr. at 28:10-22.) Plaintiff testified that there were buckets around the classroom to collect rain which caused the floors to be "moist." (Id.) According to Plaintiff, when Ms. Beard rushed to Plaintiff after Plaintiff fell, she too fell on top of Plaintiff.

Defendant acknowledges that at the time of the accident, "the hallways had a problem with a leaking roof." (Def. Statement Uncontested Facts ¶ 41.) Defendant also concedes that "the floor at the location of the accident was slippery during humid conditions." (Id. at ¶ 42.) According to Ms. Beard, this "humidity condition" was the result of condensation build-up, which manifested itself with "little bubbles the size of a dime on the floor."*fn2 (Pl. Ex. 2T, Beard Dep. Tr., 31:12-32:10.) This condition persisted during the warmer months such as June when this accident occurred; in the winter months, the humidity condition was absent. (Id. at 42:25-44:24.) In fact, Ms. Beard testified that during the warmer months, she would mop the floor of her classroom sometimes more than once a day. (Id. at 43:10-44:1.) Contrary to her earlier allegations that she "slipped on oil the floor" or on a wet floor "caused by a leaking roof," Plaintiff now alleges that the floor was wet from humidity and condensation that Ms. Beard failed to mop up. She alleges that Ms. Beard controlled the mopping of the floor in question during humid days, and that Ms. Beard negligently failed to provide her with a safe work area by failing to clean up the alleged condensation that made the floor especially slippery.

On January 15, 2003, Plaintiff filed this Complaint, alleging that she had "entered a classroom or other space" when she fell. (Compl. ΒΆ 4.) The Complaint alleges a claim for negligence against the United States under the Federal Tort ...

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