The opinion of the court was delivered by: Kugler, United States District Judge:
NOT FOR PUBLICATION (Doc. Nos. 41, 43, & 45)
Plaintiff was injured when he climbed atop, walked along, and fell off a retaining wall at the United States Post Office in Bellmawr, New Jersey. Plaintiff claims that he fell because a cap stone on the retaining wall broke free when he stepped on it. He sued the United States of America and the construction companies that built the wall for negligence. The United States of America and the construction companies now move for summary judgment dismissing Plaintiff's claims. The Court grants Defendants' motions for summary judgment because neither the United States nor the construction companies had a duty to maintain or construct the retaining wall as a safe walkway. The design and presentation of the retaining wall unequivocally establish that it was not a walkway, and there is no evidence that anyone other than Plaintiff ever used the wall as a walkway. Plaintiff presents no evidence to support his claim that Defendants should be liable for his curious decision to walk along the eight-inch wide, terraced retaining wall rather than use the twelve-foot wide, hand-rail equipped sidewalk immediately adjacent to the retaining wall.
Plaintiff's accident occurred in September 2007. At that time, he was almost 65 years old, approximately 6'3" tall, and weighed approximately 245 pounds. Because of a physically disabling automobile accident in 1991, Plaintiff walked with a cane. He also suffered from gout, which required daily medication so that he could walk, and wore a brace on his left leg to compensate for "foot drop," which is a condition affecting the mobility of the ankle and toes.
On September 8, 2007, Plaintiff and his wife drove to the Bellmawr Post Office (the "Post Office") to drop off a bulk mailing. They parked on the right side of the building closest to the Bulk Mail Entry Unit. After delivering his bulk mailing, Plaintiff exited the Bulk Mail Entry Unit and walked to the front of the building to the Retail Unit to pay for the postage. A twelve-foot wide sidewalk connects the Bulk Mail Entry Unit to the Retail Unit. Plaintiff does not dispute that the sidewalk is obvious and that on the day of the accident there were no obstructions, holes, or defects on the sidewalk. (Starkey Dep. 54:18-55:3). Photographs of the sidewalk show that it contains a series of handrails and its boundaries are clearly framed by adjacent retaining walls and a curb separating the sidewalk from the parking lot. (Decl. of G. Christopher Bally, Esq. in Supp. of Def. Medio Construction Co., Inc.'s Mot. for Sum. J., Ex. 2).
Plaintiff initially walked along the sidewalk. However, at some point before reaching the Retail Unit, he decided to climb atop one of the adjacent retaining walls. Plaintiff admits that he did not depart from the sidewalk because of any obstructions or defects. (Starkey Dep. 54:18-55:3). When asked why he got on to the retaining wall, he testified: "Why? I just stepped up on it. Why, I don't know." (Starkey Dep. 56:11-16). However, Plaintiff also testified that he used the retaining wall rather than the sidewalk to save time. (Starkey Dep. 114:24-115:7). He testified that on other occasions he would use part of the retaining wall and a dirt area behind the retaining wall as a shortcut for entering the Bulk Mail Entry Unit. (Starkey Dep. 57:8-12). No Postal Service employee ever saw Plaintiff use the retaining wall or the dirt area behind the retaining wall as a shortcut. Moreover, prior to Plaintiff's accident: (1) the Postal Service had not received any reports of persons walking on the wall; (2) Florence Wernig, the Supervisor of Maintenance Operations responsible for maintaining the Post Office, never saw anyone walking on the retaining wall; and (3) the Postal Service had not received any complaints that anyone fell off the wall.
As Plaintiff walked along the retaining wall on the day of his accident, he came to a terraced section of the wall. He attempted to step up the terraced section by standing on the cap stone at the very edge of the terrace. According to Plaintiff, the cap stone came loose when he put his weight on it, causing him to fall off the wall. (Starkey Dep. 62:14-25). Plaintiff broke his elbow and sustained other injuries as a result of the fall. Plaintiff immediately reported the accident to the clerk at the Bulk Mail Entry Unit. He could not identify any witnesses to his fall.
Plaintiff claims that "he believed [the wall] was an acceptable walking surface because [he] walked on it before and no one said that [he] couldn't walk on it . . . [and] [t]here is no signage to say keep off the wall, keep off the dirt, only use the sidewalk." (Starkey Dep. 119:13-19). According to William Kapac, who was the project manager for the Postal Service responsible for constructing the wall, the wall was designed to keep debris from running onto the sidewalk and becoming a hazard. (Kapac Dep. 62:7-19). The wall is capped by eight-inch wide "decorative" bricks. (Starkey Dep. 61:6-9). The decorative cap stones are fastened to the wall with mortar and are not designed to be a walking surface.
The Postal Service has strict procedures designed to ensure safe ingress and egress to the Post Office. Every day, the area in front of the Retail Unit is maintained by a custodian.
Additionally, Ms. Wernig personally inspects that area for safety issues at least three times per week. Ms. Wernig did not notice any safety issues with the retaining wall or the sidewalk prior to Plaintiff's accident. (Wernig Dep. 8:4-5). The Post Office also undergoes a quarterly comprehensive safety and health inspection, which includes a rigorous inspection of the outside of the building for hazardous conditions. The quarterly inspections are conducted by Ms. Wernig, a safety specialist, and members of the respective postal unions. Those inspections include an examination of the retaining wall. None of the quarterly inspections prior to Plaintiff's accident revealed any defects or hazardous conditions with the wall.
After Plaintiff's fall, he filed an administrative claim for negligence with the United States Postal Service. He alleged that he was injured because "the cap block on top of the wall gave way." (Decl. of Elizabeth A. Pascal in Supp. of Def. U.S. Mot. for Sum. J., Ex. 10). The Postal Service denied Plaintiff's claim, finding that it had not committed any wrongful or negligent act or omission.
Plaintiff filed the Complaint in August 2008. He sued the United States for negligence under the Federal Tort Claims Act ("FTCA).*fn1 Plaintiff subsequently amended his Complaint to assert negligence claims against Defendants Franchi Construction, Inc. ("Franchi") and Medio Construction Company ("Medio"). Franchi was the contractor that the Postal Service hired to complete renovations to the front of the Post Office, including the retaining wall. Medio was the subcontractor that Franchi hired to build the retaining wall. According to both Medio and Franchi, the retaining wall was not designed or intended to be used as a walkway. Upon completion of the wall sometime in 2004 or 2005,*fn2 the Postal Service inspected, approved, and paid for the wall. Neither Medio nor Franchi had any agreements with the United States to perform continuing maintenance or inspection of the retaining wall after its construction.
All three Defendants now move for summary judgment dismissing Plaintiff's negligence claims against them. The United States makes four ...