Filed: Dec. 03, 2018
Latest Update: Mar. 03, 2020
Summary: 17-3784 Zilgme v. United States of America UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASU
Summary: 17-3784 Zilgme v. United States of America UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUM..
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17‐3784
Zilgme v. United States of America
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 3rd day of December, two thousand
eighteen.
PRESENT: DENNIS JACOBS,
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
RICHARD ZILGME,
Plaintiff‐Appellant,
‐v.‐ 17‐3784
UNITED STATES OF AMERICA,
Defendant‐Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLANT: Michael J. Willett, Gibson, McAskill
& Crosby, LLP, Buffalo, NY
FOR APPELLEE: Mary E. Fleming, Assistant United
States Attorney, for James P.
Kennedy, Jr. United States Attorney
for the Western District of New York,
Buffalo, NY.
Appeal from a judgment of the United States District Court for the
Western District of New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court be
AFFIRMED IN PART and IN PART VACATED AND REMANDED.
Plaintiff‐Appellant Richard Zilgme appeals from a judgment of the United
States District Court for the Western District of New York (Arcara, J.) dismissing
his complaint on summary judgment. Zilgme alleges that he was injured when
he tripped over a loose bolt protruding one‐and‐a‐half inches from the floor of a
United States Postal Service facility. The Government’s motion for summary
judgment was referred to Magistrate Judge Scott, who recommended that the
court reject the argument that the loose bolt constituted an inactionable trivial
defect, but that the motion nevertheless be granted on the ground that the
Government lacked actual or constructive notice of the loose bolt. The report
and recommendation (“R&R”) also rejected Zilgme’s argument that the loading
dock plate at issue was defective. After further briefing, the district court
accepted the R&R in a decision and order dated October 23, 2017.
We review a district court’s decision on motions for summary judgment de
novo, construing evidence in the light most favorable to the nonmoving party.
Novella v. Westchester Cty., 661 F.3d 128, 139 (2d Cir. 2011). We may affirm a
grant of summary judgment “on any basis [with] sufficient support in the record,
including grounds not relied on by the district court.” Bruh v. Bessemer
Venture Partners III L.P., 464 F.3d 202, 205 (2d Cir. 2006).
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1. Zilgme argues that the Government’s awareness that forklifts could
loosen bolts on the loading dock establishes constructive notice of the loose bolt
that caused his fall. In support, Zilgme has adduced two emails written after
his accident by a Postal Service employee evincing awareness that “[v]ibration
from the fork lifts and the fork blades may loosen the locking nuts” attached to
the bolts, App’x 346, and that “[b]olts become unanchored by fork blades hitting
them and is a fairly common occurrence,” App’x 347.
Under New York law, “actual notice of a particular recurring safety issue
. . . [is] sufficient to establish constructive notice of the specific recurrence” of the
condition. Chianese v. Meier, 98 N.Y.2d 270, 278 (2002). However,
“awareness of a general dangerous condition is not enough to charge a defendant
with constructive notice of the particular dangerous condition that caused an
injury.” Taylor v. United States, 121 F.3d 86, 90 (2d Cir. 1997) (emphasis in
original).
The Government argues, as the district court concluded, that awareness of
potential for loose bolts on the 46 loading docks at the facility is too general to
support constructive notice of the particular bolt at issue here. However, the
question here is not whether general awareness of loose bolts creates
constructive knowledge of the loose bolt that tripped Zilgme, but whether
awareness of the loose bolts rendered foreseeable the tripping hazard posed by a
loose bolt extending one‐and‐a‐half inches from the ground. See Taylor, 121
F.3d 89‐91 (“Constructive notice of a particular condition is inextricably
intertwined with the concept of foreseeability.”) (emphasis in original); Basso v.
Miller, 40 N.Y.2d 233, 241 (1976) (“[F]orseeability shall be a measure of
liability.”).
Since reasonable minds could disagree about whether awareness of loose
bolts on the loading docks makes the risk of tripping over a protruding bolt
foreseeable, the district court erred by granting summary judgment on the issue
of notice.
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2. Zilgme argues that the bolts in the loading dock constituted an
unreasonably dangerous condition even when properly fastened because the
heads of the bolts were raised one‐eighth to one‐quarter of an inch above the
floor, and that the district court failed to consider this claim. Judge Arcara’s
opinion concludes that there was insufficient “evidence for a reasonable trier of
fact to conclude that the [Government’s] loading dock plate assembly created
conditions that violated an applicable standard of care.” District Court Opinion
at 4. The court did not consider the height of the raised bolts as a defective
condition in itself; Zilgme’s opposition to the Government’s motion for summary
judgment listed the raised bolts simply as one of several “factors” supporting his
alternative claim that the dock plate assembly in the loading dock was defective
because of its various differences from the loading dock he usually worked at.
See 15‐cv‐130 (RJA) Doc. No. 32‐5 at 7; see also Plaintiff’s Rule 56.1
Counterstatement, App’x 351.
In any event, based on our “examination of all the facts and circumstances
presented,” Trincere v. Cty. of Suffolk, 90 N.Y.2d 976, 977 (1997), we conclude
that the raised bolts do not “unreasonably imperil the safety” of those walking in
the loading dock and are not actionable as a matter of law, Hutchinson v.
Sheridan Hill House Corp., 26 N.Y.3d 66, 78 (2015) (quoting Wilson v Jaybro
Realty & Dev. Co., 289 NY 410, 412 (1943) (brackets omitted)) (finding cylindrical
sidewalk projection approximately one quarter of an inch in height and five‐
eighths of an inch in diameter to be trivial as a matter of law). The bolts are
raised only one‐quarter of an inch above the floor, are not difficult “to see or to
identify as a hazard or difficult to pass over safely on foot in light of the
surrounding circumstances,” id. at 80, and are “so slight that no careful or
prudent person would reasonably anticipate any danger from [their] existence,”
id. at 81 (quoting Beltz v City of Yonkers, 148 NY 67, 70 (1895) (brackets
omitted)).
Because the raised bolts are inactionable, we need not address Zilgme’s
argument that the Government was on notice of the condition because it installed
the bolts itself.
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We have considered Zilgme’s remaining arguments and conclude they are
without merit. The judgment of the district court is therefore AFFIRMED IN
PART and IN PART VACATED AND REMANDED for further proceedings
consistent with this opinion.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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