VANESSA L. BRYANT, District Judge.
The Plaintiff, Josephina Dominguez ("Dominguez"), brings this negligence action grounded in premises liability for monetary relief against the Defendant United States of America ("United States") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), in recompense for injuries she sustained when she allegedly slipped and fell on snow and/or ice which had accumulated in an outdoor walkway area at the Federal Correctional Institution in Danbury, CT. Currently pending before the Court is the Defendant's Motion for Summary Judgment. For the reasons that follow, the Defendant's Motion for Summary Judgment is DENIED, and this case is DISMISSED without prejudice for lack of subject matter jurisdiction.
As an initial matter, the Court notes that both the Defendant's and the Plaintiff's recitations of facts in the Motion for Summary Judgment and the opposition at times do not comport with the evidence to which the parties cite, and the same is true for the parties' Local Rule 56 statements. Where a party has failed to support an asserted fact with evidence from the record, the Court will not consider the assertion to be fact. D. Conn. L. Civ. R. 56(a)3 (each statement of material fact in a Local Rule 56(a)1 or Local Rule 56(a)2 statement, as well as each denial in a summary judgment opponent's Local Rule 56(a)2 statement, "must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial.").
The following facts relevant to the Defendant's Motion for Summary Judgment are undisputed unless otherwise noted. The Defendant United States operates a Federal Correctional Institution in Danbury, CT ("FCI Danbury"). The Plaintiff, Josephina Dominguez, has been an inmate at FCI Danbury since February 27, 2006. [Dkt. 48-2, D's 56(a)1 Stmnt. ¶¶ 1, 2]. Since August 2006 Dominguez has worked for UNICOR, which is located on FCI Danbury's property, five days per week. [Dkt. 48-2, D's 56(a)1 Stmnt. ¶¶ 4, 5]. Ms. Dominguez has estimated that approximately 100 inmates worked at UNICOR,
On January 8, 2010
[Dkt. 52-1, Dominguez Depo. p. 16(5/8)]. As to her fall, she testified: "I don't know [how I fell]. I was just walking along, and before I knew it, I had fallen because in that patch it was icy. There was ice there. It wasn't just snow." [Dkt. 52-1, Dominguez Depo. p. 16(5/8); Dkt. 48-2, D's 56(a)1 Stmnt. ¶ 11]. Ms. Dominguez recalled that when she fell there were people to her front, to her back, to her right and to her left, all walking together to work. [Dkt. 52-1, Dominguez Depo. p. 17(6/8)]. When asked whether anyone in the group talked about the condition of the pavement on the morning of her fall, Ms. Dominguez responded
[Dkt. 52-1, Dominguez Depo. pp. 17-18 (6-7/8)]. Dominguez recalled that she saw "quite a bit of ice" on the pavement but did not recall whether there was also snow on the ground. [Dkt. 52-1, Dominguez Depo. p. 18(7/8)]. No other slip and fall accidents were reported on January 8, 2010 in the area where Ms. Dominguez fell. [Dkt. 48-2, D's 56(a)1 Stmnt. ¶ 6; Dkt. 52, P's 56(a)2 Stmnt. ¶ 6; Dkt. 48-12, MacGregor Depo. p. 94].
Both parties have submitted a National Weather Service "Record of River and Climatological Observations" for Danbury, CT for the month of January, 2010 ("Weather Record"), which indicates precipitation levels for each day of the month.
The pavement walkway area where Ms. Dominguez fell was maintained by employees of the federal Bureau of Prisons, which was responsible for snow and ice removal. [Dkt. 48-2, D's 56(a)1 Stmnt. ¶ 7; Dkt. 52-2, MacGregor Depo. p. 47 (15/21)]. Facility
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). "In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). "If there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied." Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir.2006) (internal quotation marks and citation omitted).
"A party opposing summary judgment cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible. At the summary judgment stage of the proceeding, Plaintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient." Welch-Rubin v. Sandals Corp., No. 3:03cv481, 2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks and citations omitted); Martinez v. State of Connecticut, 817 F.Supp.2d 28, 37-38 (D.Conn. 2011). Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and
The Defendant urges the Court to grant summary judgment in its favor on two grounds. First, the Defendant claims that the Plaintiff cannot establish that the Defendant had a duty to clear the walkway at the time of Plaintiff's fall because there was a storm in progress, pursuant to Plaintiff's own testimony. Second, the Defendant alleges that it had neither actual nor constructive notice of the alleged pre-existing or accumulated ice or snow on the walkway such that it would have been aware of the defect for a sufficient length of time to have remedied it. Dominguez counters that the United States is liable for her personal injuries because it was negligent in not clearing snow and ice from the walkway at FCI Danbury despite having constructive notice of the existence of snow and ice and despite having a duty to either clear the snow or ice or to delay the inmate work call until the area was cleared. According to Dominguez, Connecticut's ongoing storm doctrine does not bar her negligence claim because an unusual circumstance exception applies: FCI Danbury chose not to delay the inmate work call time on the day in question, thus forcing the Plaintiff to walk through the rear gate area despite the existence of a dangerous condition. The Court finds that genuine issues of material fact exist that preclude a grant of summary judgment.
Dominguez brings this negligence action pursuant to the FTCA, under which the federal government has waived its sovereign immunity where a government employee commits a tort "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 claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). "The applicable law to a claim against the Government under the FTCA is the law that the state where the tortious incident took place would apply in like circumstances involving a private defendant." Silverman v. U.S., No. CV 04-5647, 2008 WL 1827920, at *12 (2d Cir. Mar. 28, 2008) (quoting Caban v. U.S., 728 F.2d 68, 72 (2d Cir.1984)); Davis v. U.S., 430 F.Supp.2d 67, 73 (D.Conn.2006) ("Under the FTCA the government's liability is determined by the application of the law of the place where the act or omission occurred"). Connecticut law applies to Dominguez's claims because it would apply if Dominguez had brought a negligence action against a private defendant.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (Conn.2002) (internal quotation marks and citations omitted). The existence of a duty is a question of law. Gordon v. Bridgeport Hous. Auth., 208 Conn. 161, 171, 544 A.2d 1185 (Conn.1988); Dubuis v. U.S., 3:06CV01443 DJS, 2008 WL 410429, at *4 (D.Conn. Feb. 12, 2008). "Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." Gordon, 208 Conn. at 171, 544 A.2d 1185. The status of a person entering onto a possessor's land determines the duty owed by the possessor to such person: thus, an ascending degree of duty is owed to a trespasser, a licensee, and an
"A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe.... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." Considine, 279 Conn. at 859, 905 A.2d 70 (internal quotation marks and citation omitted). Thus, to prevail on her negligence claim, Dominguez must prove "(1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the defendant should, in the exercise of reasonable care, have discovered it in time to remedy it." Martin v. Stop & Shop Supermarket Cos., Inc., 70 Conn.App. 250, 251, 796 A.2d 1277 (Conn. App.Ct.2002) (internal quotation marks and citations omitted); Considine, 279 Conn. at 870, 905 A.2d 70 ("in the context of a negligence action based on a defective condition on the defendant's premises, there could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it.") (internal quotation marks and citations omitted). To prevail, an invitee must prove
Kelly v. Stop and Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (Conn.2007) (internal quotation and grammatical marks omitted); see also Fisher v. Big Y Foods, Inc., 298 Conn. 414, 423-39, 3 A.3d 919 (Conn.2010) (quoting same); James v. Valley-Shore Y.M.C.A., Inc., 125 Conn.App. 174, 179, 6 A.3d 1199 (Conn.App.Ct.2010) ("the plaintiff [is] required to prove that the defendant had had actual or constructive notice of the specific defect that caused the plaintiff's injuries.") (quoting Riccio v. Harbour Village Condo. Ass'n, Inc., 281 Conn. 160, 164, 914 A.2d 529 (Conn.2007)); Graham v. Kohl's Dept. Stores, Inc., No. 3:04CV949(MRK), 2005 WL 2256603, at *1 (D.Conn. Sept. 8, 2005) ("relevant case law in Connecticut places a heavy burden on a `slip and fall' plaintiff to demonstrate that a defendant had actual or constructive notice of the specific defect that led to the accident and `not merely of conditions naturally productive of that defect even though subsequently in fact producing
The Defendant argues that it is entitled to summary judgment because it owed no duty to Plaintiff to clear the snow and/or ice from the rear gate area based on Ms. Dominguez's own testimony that there was a snow storm in progress at the time of her fall. The Plaintiff counters that this action falls into the "unusual circumstances" exception to the storm in progress doctrine, and thus Defendant must be liable for Plaintiff's injuries.
Pursuant to Connecticut law, "in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps." Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (Conn.1989). "In other words ... the landowner's duty to remove ice and snow does not arise until after a reasonable period has passed following the conclusion of the storm." Umsteadt v. G.R. Realty, 123 Conn.App. 73, 83, 1 A.3d 243 (Conn.App.Ct.2010) ("absent unusual circumstances, a landowner is allowed to await the end of a winter storm, and a reasonable time thereafter, before removing ice and snow deposited by that storm."). The Connecticut Supreme Court has reasoned that "[t]o require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical." Kraus, 211 Conn. at 198, 558 A.2d 240.
The Plaintiff maintains that there was a storm in progress at the time of Plaintiff's fall, but that the unusual circumstances exception to the above rule negates the insulation from liability that the pendency of such a storm would normally provide to the Defendant. The Defendant, however, argues both that there was a storm in progress during the time of Plaintiff's fall, and contrarily that the Weather Record for January 8 indicates that not enough snow had fallen for the Defendant to have had notice of any dangerous condition in the rear gate area.
Both the Plaintiff and Defendant rely on Plaintiff's deposition testimony for the proposition that a storm was in progress at the time of her fall:
[Dkt. 52-1, Dominguez Depo. p. 16(5/8)].
The Defendant claims that the Plaintiff's account is corroborated by the Weather Record for the month of January, which allegedly shows that on January 8, 2010 "1.7 inches of snow fell in Danbury, CT starting around 5 am and continuing until approximately 6 pm." [Dkt. 48-1, D's MSJ p. 9]. Plaintiff also cites to this Weather Record for the proposition that "the Defendant was on notice that it was snowing at the time that Plaintiff had to
Moreover, regardless of whether a winter storm was ongoing at the time of Plaintiff's fall, there still remains a genuine issue of material fact as to whether the Plaintiff fell on snow or ice that had accumulated as a result of this storm, or whether she slipped and fell on ice that had accumulated prior to the date of her fall, making the Defendant potentially liable for her injuries. See, e.g., Kraus v. Newton, 211 Conn. 191, 198, 558 A.2d 240 (Conn.1989) ("Our decision, however, does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of whether a storm has ended or whether a plaintiff's injury has resulted from new ice or old ice when the effects of separate storms begin to converge."). The Weather Record on which both parties rely indicates that two total inches of snow, ice pellets, hail or ice were present on the ground at an unspecified time of observation on January 8, 2010, and precipitation fell that day between 4:00 AM and 3:00 PM, and again between 4:00 PM and 6:00 PM. [Dkt. 48-10, Weather Report, p. 2]. On January 6 two total inches of ice and/or snow were present on the ground at the time of the recorder's
[Dkt. 52-1, Dominguez Depo. pp. 17-18 (6-7/8)]. This testimony, read in conjunction with the Weather Record, supports the Plaintiff's contention that she may have slipped on ice and/or snow that existed on the rear walk area of FCI Danbury prior to the time of her fall and was not necessarily a result of the snow she claims was falling contemporaneously with her walk to UNICOR. Without more evidence in the record, the Court simply cannot make this determination and this issue remains extant for trial. See Berlinger v. Kudej, 120 Conn.App. 432, 437, 991 A.2d 716 (Conn. App.Ct.2010) (reversing grant of summary judgment because genuine issue of material fact existed as to whether plaintiff slipped on pre-existing ice or whether effects of ongoing storm caused his fall); DeSimone v. New Haven Hous. Auth., CV045000155S, 2006 WL 3411041 (Conn.Super.Ct. Nov. 13, 2006) (factual issue as to whether preexisting accumulation of ice or precipitation from ongoing storm caused plaintiff's fall existed, thus precluding summary judgment in favor of defendant).
Lastly, and seemingly contrarily to the Defendant's argument that a winter storm was ongoing at the time of Plaintiff's fall, the Defendant also argues that no snow had fallen or accumulated in the four days leading up to January 8, "only 1.7 total inches of snow accumulated during a 13 hours period" on January 8, and thus "because 1.7 inches of snow fell within a 13 hour time period, between approximately 5 a.m. and 6 p.m., a negligible amount of snow could have fallen" by the time of Plaintiff's fall, thereby providing the Defendant with no notice of any dangerous condition. [Dkt. 48-1, D's MSJ p. 11]. See infra, part c., Notice. Although the Court believes the Defendant has incorrectly interpreted the Weather Record, the Defendant has affirmatively argued both that too little snow had fallen by the time of Plaintiff's fall to have provided notice to any FCI Danbury employee that a dangerous condition existed, and that enough snow was falling at 7:30 AM that the storm in progress doctrine must shield the Defendant from liability in this case. These potentially contrary positions support the Court's conclusion that several genuine issues of material fact exist such that summary judgment is improper.
In sum, the contradictory evidence provided by both parties denotes a genuine issue of material fact as to whether a winter storm was in progress at the time of Plaintiff's fall, and also whether the Plaintiff slipped on ice or snow that had accumulated as a result of some ongoing winter storm, or on ice or snow deposited by an earlier weather event and subsequently not cleared by the Defendant.
Although it is unnecessary to address in light of the predicate issue of material fact
Although the Plaintiff contends that there is no appellate authority explaining the phrase "unusual circumstances," the Connecticut Appellate Court has held that, in consideration of whether "unusual circumstances" exist, the status of the defendant may not be considered. In Sinert v. Olympia & York Dev. Co. the Appellate Court ruled that, in a negligence case where the plaintiff allegedly slipped and fell on ice in an outdoor area as she was leaving her workplace during a winter storm, a jury instruction that required the jury to consider in determining whether unusual circumstances existed "the location of the premises, the use of the premises, the day of the week and the time of day" was improper, "because it takes into consideration the status of the defendants as owners and maintainers of a commercial building in determining the duty owed to a plaintiff." 38 Conn.App. 844, 849, 664 A.2d 791 (Conn.App.Ct.1995). The Appellate Court further reasoned that
Sinert, 38 Conn.App. at 849-50, 664 A.2d 791. Three years after the holding in Sinert, the Connecticut Appellate Court clarified that Sinert "stands for the limited proposition that the defendant's status as a commercial property owner does not constitute an unusual circumstance within the decisional parameters of Kraus." Cooks v. O'Brien Properties, Inc., 48 Conn.App. 339, 346, 710 A.2d 788 (Conn.App.Ct.1998). The Cooks court further held that, where a tenant slipped and fell on uncleared outdoor apartment building steps leading to a plowed driveway during a winter storm, "the trial court properly instructed the jury on the law of Kraus including the unusual circumstances exception that would permit the jury to consider the evidence presented with respect to the changeover in precipitation and the availability of alternative means of egress from the defendant's property in determining whether such unusual circumstances existed on the day of the plaintiff's accident so as to impose on the defendant the duty to remove the snow and ice from the steps prior to 9 a.m." Id. at 346-47, 710 A.2d 788. No further appellate precedent exists as to the meaning of the term "unusual circumstances."
Here, the Plaintiff urges the Court that the facts that FCI Danbury did not delay the start of her work day at UNICOR and that the Plaintiff and other inmates had to report to work at UNICOR on the morning of January 8 constitute "unusual circumstances" such that the storm in
Here, Dubray [a company providing snow removal to plaintiff's employer] knew that double-shift employees would be required by [the employer] to walk out to their cars during a snow storm, to move them to another lot, and then to walk back into the building. Dubray knew or should have known that these employees would be subject to the risks of walking in a parking lot in the midst of a snowstorm. This creates a factual issue about whether these facts present an "unusual circumstance" which would create a duty on the part of Dubray. Only the jury can decide this factual issue. For this reason, the motion for summary judgment must be denied.
2011 WL 1168556, at *2.
Connecticut precedent on the unusual circumstances exception, though, is anything but clear. Although Hickok allowed the unusual circumstances question to proceed to the jury where the plaintiff's employer required her to walk to her car during a snowstorm and in the middle of her work shift, several courts have ruled that no unusual circumstances existed where plaintiffs have slipped and fallen upon exiting their places of employment. See Valagic v. Inline Plastics Corp., CV044000841, 2006 WL 1075147 (Conn.Super.Ct. Apr. 4, 2006) (no unusual circumstances existed where plaintiff slipped and fell outside her place of work); Cowes v. Fusco Harbour Ass'n, CV030473470, 2005 WL 2981769 (Conn.Super.Ct. Oct. 19, 2005) (no unusual circumstances existed where plaintiff slipped and fell outside his place of work, and where he claimed that the fact that it was a work day, he slipped at the end of the work day, and the office building outside which he slipped had thousands of tenants constituted unusual circumstances); Uhelsky v. One Research Drive Associates, Inc., CV010075247S, 2002 WL 31928610 (Conn.Super.Ct. Dec. 20, 2002) (no unusual circumstances where "the plaintiff fell in an unplowed area of the parking lot of her place of employment at the end of her work day during an ongoing storm"). See also Coleman v. Copps Hill Plaza Shopping Associates, CV96 0326258, 1999 WL 369961 (Conn.Super.Ct. May 25, 1999) (granting summary judgment in favor of defendant where plaintiff was a business invitee; "The fact that the property on which the fall occurred is commercial, rather than residential, is therefore insufficient to overcome the Kraus v. Newton rule, and cannot serve as a basis for denying the defendant's motion for summary judgment. Furthermore, whether the activities during the storm induced the plaintiff to enter the property, alters neither the status of the plaintiff, nor the duty of care owed by the defendant.").
Additionally, the federal government owes a duty of reasonable care to safeguard the security of prisoners under its control. See United States v. Muniz, 374 U.S. 150, 164-65, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) (duty of care owed by the Bureau of Prisons to federal prisoners
Here, the Plaintiff argues that her march to work on the morning of January 8, 2010 was both unsafe and mandatory, thus requiring FCI Danbury to clear the premises to ensure her safety on her walk to work. Although the weight of the above precedent appears to indicate that the unusual circumstances of being an employer and knowing that employees must arrive at work at a certain hour does not impose a duty to clear the outside areas of an employer's premises during a snowstorm, here Ms. Dominguez's status as an inmate may create an unusual circumstance akin to that found in Hickok. Without more evidence in the record to support either the Defendant's or the Plaintiff's position on the matter, this question remains extant for trial.
The Defendant further alleges that it is entitled to summary judgment because the Plaintiff has presented no evidence that the Defendant had either actual or constructive notice of the alleged pre-existing or accumulated ice or snow on the walkway such that Defendant would have known of the defect for a sufficient length of time to have remedied it. Dominguez counters that the Defendant had constructive notice of the existence of snow and ice on the walkway. The Court concludes that Plaintiff has provided sufficient circumstantial evidence of constructive notice such that genuine issues of material fact exist as to whether Defendant should have known of the allegedly dangerous condition on the walkway, thus precluding a grant of summary judgment.
"The controlling question in deciding whether the defendant[] had constructive notice of the defective condition is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it. What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case." Riccio, 281 Conn. at 163-64, 914 A.2d 529 (internal quotation marks and citations omitted); see also Kelly, 281 Conn. at 777, 918 A.2d 249 (same); James, 125 Conn.App. at 179, 6 A.3d 1199 (same). "The nature of the business and the location of the foreign substance would be factors in this determination ... To a considerable degree each case must be decided on its own circumstances. Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant." Kelly, 281 Conn. at 777, 918 A.2d 249 (internal citations and quotation marks omitted). "To
Here, as discussed prior, Plaintiff has testified that on the morning of her fall
[Dkt. 52-1, Dominguez Depo. pp. 17-18 (6-7/8)]. Further, the Weather Record indicates that the temperatures on January 6, 7, and 8 fluctuated below and above the freezing point such the snow and ice existing on the ground could have melted and refrozen. See supra part a., Duty of Care: Ongoing Storm/Storm in Progress Doctrine. Bruce MacGregor testified that it was the usual practice of two FCI Danbury employees to inspect the areas outside of the UNICOR building around 6:15 each morning, at which point the employees would decide whether the snow or ice accumulation merited either no action, the application of calcium to light buildups of snow or ice, or the use of a snow plow truck to clear heavier snow or ice loads. Therefore, drawing all inferences in favor of the Plaintiff, it is possible for a trier of fact to conclude that ice existed on the walkway prior to 7:30 AM on January 8, 2010 and, based on the usual practices at FCI Danbury, the two employees reviewing the area around 6:15 AM should have known of any such buildup of ice.
Further, although the Defendant points to the deposition testimony of Facility Manager Bruce MacGregor to support its claim that "FCI Danbury has no record of any complaints or reports of ice on the pavement for January 8, 2010 or prior to that date," the evidence provided to the Court does not support such an inference. [Dkt. 48-1, D's MSJ p. 11]. Instead, Bruce MacGregor has only testified that he "had no reports of anybody [other than the Plaintiff] slipping and falling" on January 8, 2010. No evidence in the record, however, supports the assertion that FCI Danbury has no record and MacGregor received no other complaints of ice on the pavement on January 8 or prior to that date.
Thus, reviewing the provided evidence in its totality, the Court concludes that the Plaintiff has provided enough circumstantial evidence of constructive notice such that a material issue of fact remains. See Berlinger v. Kudej, DeSimone v. New Haven Hous. Auth., supra part a., Duty of Care: Ongoing Storm/Storm in Progress Doctrine.
Although the parties have not addressed the issue of jurisdiction, the Court finds that it lacks jurisdiction over this matter altogether. If Dominguez were the non-incarcerated employee of a private employer/defendant, her sole recourse pursuant to Connecticut law for injuries arising out of and in the course of her employment — such as those alleged here — would be her entitlement to workers' compensation. Conn. Gen.Stat. § 31-284. Likewise, if Dominguez were a federal
5 U.S.C. § 8102(a). Workers' compensation under the FECA is a federal employee's exclusive remedy for personal injury sustained in the performance of his duties. 5 U.S.C. § 8116(c) ("The liability of the United States or an instrumentality thereof... with respect to injury or death of an employee is exclusive and instead of all other liability ..."); see also Votteler v. United States, 904 F.2d 128, 130 (2d Cir. 1990) ("FECA is the exclusive remedy for work-related injuries sustained by federal employees"). Further, "[b]ecause the FECA is an exclusive remedy ... it deprives federal courts of subject-matter jurisdiction to adjudicate claims brought under the FTCA for workplace injuries that are covered by the FECA." Mathirampuzha v. Potter, 548 F.3d 70, 81 (2d Cir.2008).
Moreover, the FECA provides that "[t]he Secretary of Labor shall administer, and decide all questions arising under, [the FECA]." 5 U.S.C. § 8145 (emphasis added). As to who decides whether a claim is within the scope of FECA coverage: the Secretary of Labor or the federal district court asked to adjudicate a claim under the FTCA, the Second Circuit has taken the position of the majority of the Circuits to have addressed the issue:
Mathirampuzha, 548 F.3d at 81-82 (citations and internal quotation marks omitted; collecting Circuit cases; holding that Secretary must decide whether emotional distress claim fell under the FECA); see also Gill v. United States, 641 F.2d 195, 197 (5th Cir.1981) ("district courts may not entertain FTCA suits if there is even a substantial question as to whether the plaintiff's injury occurred in the performance of his federal employment").
Federal prison inmates too are constricted by a statutory compensation scheme for injuries sustained in the course of prison work programs. 18 U.S.C. § 4126 provides that:
18 U.S.C. § 4126(a). The Federal Prison Industries are:
18 U.S.C. § 4126(c)(4).
The prisoner compensation program pursuant to 18 U.S.C. § 4126 provides the exclusive means of redress against the Government for prisoners who sustain injuries in the course of prison employment. United States v. Demko, 385 U.S. 149, 152, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966) (compensation program is sufficiently comprehensive to be exclusive means of redress to prisoners; "that law, as shown by its regulations, its coverage and the amount of its payments to the injured and their dependents, compares favorably with compensation laws all over the country"); Granade v. United States, 356 F.2d 837, 842 (2d Cir.1966) (prisoner could not bring suit under the FTCA for injuries sustained in course of prison employment where 18 U.S.C. § 4126 provided exclusive scheme for compensation); 28 C.F.R. § 301.319 ("Inmates who are subject to the provisions of these Inmate Accident Compensation regulations are barred from recovery under the Federal Tort Claims Act"); Saladino v. Fed. Prison Indus., 404 F.Supp. 1054, 1056 (D.Conn.1975) ("The remedy under Sec. 4126 is exclusive and any attempt by an inmate to recover damages in an amount greater than the award of compensation established by the statute and regulations is barred"). Indeed, "an examination of the regulations makes it quite clear that an award of compensation under Section 4126 is not discretionary but is mandatory as to any claim that comes within their terms."
It appears that this Court thus lacks jurisdiction to hear Dominguez's claim as her sole recourse is compensation pursuant to 18 U.S.C. § 4126 and the regulations promulgated thereunder. See Dunn v. U.S. Fed. Bureau of Prisons, 3:03CV1928(JBA), 2006 WL 695805 (D.Conn. Mar. 20, 2006) (court lacked jurisdiction over FTCA claim of inmate at FCI Danbury who tripped and fell while exiting her assigned work area at UNCOR, and who had applied for and received compensation pursuant to 28 U.S.C. § 4126); Moore v. United States, 85-CV-1151, 1988 WL 70025 (N.D.N.Y. June 30, 1988) (inmate's FTCA claims were barred for lack of jurisdiction where prison Safety Committee determined injury sustained when inmate slipped while walking on an icy pathway between his assigned workplace and another prison facility was work-related and thus compensable under 28 U.S.C. § 4126). Federal courts are courts of limited jurisdiction and may not hear claims over which they have no subject matter jurisdiction. Mims v. Arrow Fin. Servs., LLC, ___ U.S.___, 132 S.Ct. 740, 747, 181 L.Ed.2d 881 (2012); U.S. CONST. art. III, § 2; see also Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (federal courts "possess only that power authorized by Constitution and statute"). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3).
For the foregoing reasons, Defendant's Motion for Summary Judgment is DENIED. However, in light of the Court's lack of jurisdiction, the case is DISMISSED without prejudice to the Plaintiff filing a motion to vacate the dismissal, accompanied by a memorandum of law in support of the motion within 21 days of
IT IS SO ORDERED.
