PAPAK, United States Magistrate Judge:
Plaintiff Marlene Pickens filed this negligence action against defendant United States of America arising out of alleged injuries to her hearing as a result of an alarm on a U.S. Postal Service vending machine. This court has jurisdiction under 28 U.S.C. § 1346(b), governing actions in which the United States is a defendant. The United States' motion for summary judgment (#32) and motion to strike Pickens' expert statement (#54) are now before the court. For the reasons set forth below, the motion to strike is denied but sanctions are imposed under Fed. Rule Civ. P. 37 as described below, and the defendant's motion for summary judgment is granted.
From 1995-2008, the United States post office in Sherwood, Oregon has used a model 1625B postal products vending machine to dispense postal products to the public. (Breiner Decl., #38, at 2.) The
The 1625B has a security alarm and strobe light security feature. (D'Amato Decl., #40, at 2.) Although maintenance technicians can adjust the sensitivity of the sensors that trigger the security system, the volume of the alarm itself cannot be adjusted. Id. After three minutes, the alarm shuts off automatically. Id.
Standard customer use does not trigger the security alarm. (Bourne Decl. at 3.) Rather, the alarm will sound if a customer hits or moves the machine or otherwise manipulates it outside of the normal course of selecting and paying for postal products. (Bourne Decl. at 3; Breiner Decl. at 3, Kracke Decl. Ex. C at 25, 42.) The machine, however, was temperamental to the extent that the alarm would sound if the machine door was open and the person stocking it did not carefully key in the access code. (Bourne Decl. at 3; Breiner Decl. at 3.) The Sherwood postmaster could not recall an instance when a customer triggered the security alarm by pressing the coin-return button, nor did he know of an instance where the alarm triggered spontaneously. (Breiner Decl. at 3.) The machine did not bear a warning telling customers that an alarm would sound if children played on the machine or if a customer jostled the machine. (Kracke Decl. Ex. C at 66, Ex. D at 22-23.)
The purpose of the 1625B security alarm is to prevent theft and damage to the machine and to alert postal service employees to a potential security issue. Id. The 1625B machine has the capacity to hold $20,650 in postal products and $1,350 in cash to make change for customers. Id. at 3. The machines are occasionally subject to acts of theft and vandalism. (Cort Decl. #39, at 3-4, Fernald Deck, #41, at 2.) The long-time Sherwood lead sales associate, however, could not recall an instance when the alarm sounded when a person was actually trying to break into the machine and the postmaster testified that usually the customer remained by the machine after the alarm sounded. (Kracke Decl. Ex. C at 31, Ex. D at 18.)
The 1625B machine in the Sherwood office typically held about $4,500 in stock and cash. (Cort Decl., #39, at 2.) It brought in approximately $1,000 to $1,200 in revenue weekly and $2,500 to $10,000 monthly. (Bourne Decl., #37, at 2; Cort Deck, at 2.) Sherwood's 1625B machine was in the outer lobby, which was open to the public at all times, including when the post office service counter was not open. (Breiner Decl. at 2.) In 2006, someone broke into the post office boxes in the outer lobby at the Sherwood post office. (Breiner Decl. at 4.) In addition, there have been several instances when someone triggered the 1625B machine's security alarm after hours or over the weekend. Id.
On a Saturday in July 2005, Pickens visited the outer lobby of the Sherwood post office accompanied by her 5-year-old grandson, (Second Am. Compl., #28, at 1,
The United States' expert indicated that, if Pickens was standing at her full height in front of the 1625B, she would have been exposed to an average of 90 decibels at 6, 12 or 24 inches from the machine. (Mot. Summ. J. Memo., # 33, Ex. A, at 13.) Had she bent down to the floor, with her ear 26 inches from the floor, she would have been exposed to an average noise level of 94 decibels at 6, 12 or 24 inches away. Id.
After her encounter with the alarm, she reported what happened to the Sherwood postmaster. (Kracke Decl. Ex. B at 31.) He believed her complaint of ringing in her ears because, due to her age, he thought "maybe it affected her more," (Breiner Decl. at 5, Kracke Decl. Ex. C at 52.) Pickens had no prior complaints of hearing loss and now reports continuous, high-pitched ringing in her ears that keeps her from sleeping and has lead to depression. (Kracke Decl. Ex. A-4 at 1-2.) She sought treatment for this condition. (Kracke Decl. Ex. A-1, Ex. A-2, Ex. A-3, Ex. A-4.)
Pickens and the United States exchanged expert reports on the March 18, 2010 deadline to do so. (Supp. Martin Decl., #29, at 2.) Picken's expert disclosure included a three-page statement by Michael Fairchild. (Supp. Martin Decl., Ex. B.) On June 8, Pickens filed a new expert statement from Fairchild in response to the United States' motion for summary judgment. (Supp. Martin Decl. Ex. C.) This was the first time the United States saw the new Fairchild statement. (Supp. Martin Decl. at 2.)
The new Fairchild statement differed from the original statement Pickens provided to the United States within the deadline for exchange of expert testimony statements.
The Occupational Health and Safety Administration regulations provide that employers may expose workers to 115 decibels for fifteen minutes a day, 110 decibels for thirty minutes, and 100 decibels for up to two hours per day. (Mot. Summ. J. Memo., Ex. A, at 5.) The regulations allow exposure to 95 decibels for four hours per day and to 90 decibels for eight hours per day. Id. The National Fire Protection Association fire alarm and signaling code recommends 110 decibels as an alarm's maximum total sound pressure. Id. The Uniform Federal Accessibility Standards provides that audible alarm signals shall not exceed 120 decibels. Id. At least three private companies advertise that their vending machine alarms reach 128 decibels. Id. at 12. Pickens' expert, Fairchild, however, opined in his March 2010 expert report that the OSHA permissible exposure level is not a "safe level of noise" and instead represents a "political compromise," and that, in fact "a positive safe level of exposure is between 70 and 75 decibels." (Pl. Opp., #59, Ex. A at 5.)
The parties dispute the level of noise that Pickens was exposed to when the 1625B alarm sounded. The United States' expert report states that testing of the 1625B's alarm system found that the alarm's maximum and average noise levels, at all distances, were within the standards set forth above. (Mot. Summ. J. Memo., Ex. A, at 12.) At one inch from the floor and six inches from the machine, the alarm reached a maximum of 103.8 decibels and the average was 101.3 decibels. Id. Pickens' March 18 expert report, however, states that, when Pickens picked up her purse and grandson, she was exposed to 103 decibels and that, combined with her grandson's crying, the exposure was "about" 108 decibels. (Pl. Opp., #59, Ex. A at 6.)
The lead sales associate at the Sherwood branch, who worked there from 1981 until 2009, heard the security alarm sound every two to three weeks, and described the alarm as a "very loud" siren sound. (Kracke Decl., #53, Ex. D. at 9.) She sometimes deactivated the alarm, but at no point felt the need to cover her ears. (Bourne Decl. at 2-3.) Her hearing is very good. Id. at 3. In addition, she never saw any customers holding their ears or that appeared distressed as a result of the alarm volume. Id. at 3. At least one time, a customer complained that the alarm was annoying. (Kracke Decl., Ex. D, at 20, 34.)
The Sherwood postmaster held one ear when approaching the 1625B to deactivate the alarm and thought the alarm was too loud, but never experienced any discomfort, perceived hearing loss or ringing in his ears. (Breiner Decl. at 3-4.) He could recall only a "few instances" and a "couple of occasions" over a thirteen-year period, where customers would hurriedly leave the lobby when the alarm sounded, move away
Employees outside of the Sherwood branch also indicated that they had no indication that the alarm could cause physical harm. A training specialist who served for sixteen years indicated that he trained hundreds of employees on the 1625B, that the training involved the alarm sounding in class, and that no student ever requested ear plugs or ear phones or complained in any way about the volume of the alarm. (D'Amato Decl. at 3.) The training specialist himself was exposed to the alarm thousands of times but did not suffer any impairment to his hearing. Id. The technician responsible for maintaining vending machines in the Portland District indicates that he has heard the alarm more than 100 times but has never felt the need to protect his ears, nor has he suffered any hearing damage. (Cort Decl. at 3.) In addition, with the exception of Pickens' case, no attorneys, paralegals, or claims adjudicators at the Postal Service's National Tort Center have knowledge of any other administrative claims or lawsuits that allege hearing loss or damage as a result of a vending machine alarm. (Beatty Decl., # 35 at 3.) The Postal Service's Oregon District Tort Claims office also has no knowledge of any administrative claim, other than Pickens', alleging hearing loss or damages from a stamp vending machine alarm. Id.
Federal Rule of Civil Procedure 37 provides for sanctions against a party who "fails to obey an order to provide or permit discovery." Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir.2006) (citation omitted). Rule 26(a) requires that a party disclose the identity of any expert who may testify at trial, along with a written report prepared and signed by the expert witness that contains "a complete statement of all opinions to be expressed and the basis and reasons therefor." Fed.R.Civ.P. 26(a)(2)(A). Federal Rule of Civil Procedure 37(c)(1) provides "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. . . ." Fed.R.Civ.P. 37(c)(1). Thus, a party may still use its expert witness evidence if the failure to timely disclose that evidence was either "substantially justified" or "harmless." Yeti By Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001). District courts have "particularly wide latitude. . . to issue sanctions under Rule 37(c)(1)." Id. at 1106. It is the obligation of the party facing sanctions to show that its failure to comply with Rule 26(a)(2) was either substantially justified or harmless. Id. at 1107.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any
The United States moves to strike Pickens' expert statement of Michael Fairchild. Because only pleadings are subject to a motion to strike, I deny this motion to strike an expert statement. See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (1983). Nevertheless, I consider whether Pickens violated Fed. R.Civ.P. 26(a)(2)(C) by submitting a new expert statement after this court's deadline, and, if so, whether I should impose a sanction upon Pickens under Fed.R.Civ.P. 37(c)(1) for that violation. See Fed. R.Civ.P. 26(a)(2)(C) ("A party must make these [expert] disclosures at the times and in the sequence that the court orders."); Fed.R.Civ.P.37(c)(1) ("If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.") Here, Pickens filed a significantly changed expert report nearly three months after this court's deadline for exchange of expert statements. Pickens does not dispute that she violated this court's scheduling order, but nevertheless contends that Pickens' late filing was not in bad faith and that even if the court decides to exclude the majority of Fairchild's additions and changes, two statements should be permitted because they are not prejudicial and merely supplemental to content in Fairchild's original report.
Because Pickens does not show that her failure to comply with Rule 26(a)(2) was either substantially justified or harmless, I determine that sanctions are appropriate. As an initial matter, Pickens' contention that her new expert report was not filed in bad faith simply does not amount to an affirmative justification for untimely submission. Further, Fairchilds' new report is prejudicial to the United States in several regards. First, the report advances a new theory of negligence, the United State's failure to include warnings on the machine or the building entrance, that was not properly plead in Pickens' complaint.
The one exception, however, is Fairchild's newly added acknowledgment of his review of Pickens' medical records, which I permit as a supplement to his original statement.
Federal courts are given "particularly wide latitude" in their discretion to issue sanctions under Rule 37(c)(1). Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001). District courts strictly enforce the expert witness disclosure requirements in Rule 26(a) and have held that exclusion of expert testimony "is an appropriate remedy for failing to fulfill" those requirements. Thus, Pickens may not use Fairchild's updated expert statement, with the exception of the single phrase described referencing medical records, to supply evidence for its opposition to the United States' motion for summary judgment. Pickens, however, may rely on the original Fairchild statement that was exchanged in accordance with this court's deadlines.
This court has jurisdiction in this case under 28 U.S.C. § 1346(b), since Pickens has sued the United States for negligence. Under 28 U.S.C. § 1346(b)(1), the United States is liable for "the negligent or wrongful act or omission of any employee. . . 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
Oregon's leading case on negligence holds that in common-law negligence actions, the defendant's liability for the plaintiffs injury depends not on whether defendant owed a duty to the plaintiff, but on whether the defendant's conduct "unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff." Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326, 1336 (1987). Thus, to prove a claim for negligence, the plaintiff must establish the following elements: "(1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiffs harm, and (5) that plaintiff was within the class of persons and plaintiffs injury was within the general type of potential incidents and injuries that made defendant's conduct negligent." Solberg v. Johnson, 306 Or. 484, 760 P.2d 867, 870 (1988) (citing Fazzolari, 734 P.2d 1326). The Oregon Supreme Court has held that both the foreseeability of risk of harm to a plaintiff and the reasonableness of defendant's conduct are empirical questions that generally should be determined by a factfinder except in an "extreme case." Donaca v. Curry County, 303 Or. 30, 734 P.2d 1339, 1344 (1987) ("The existence and magnitude of the risk . . . bear on the foreseeability of harm. The feasibility and cost of avoiding the risk bear on the reasonableness of defendant's conduct. Both clearly are empirical questions. We do not mean that they must in every case be submitted to a jury; in an extreme case a court can decide that no reasonable factfinder could find the risk foreseeable or defendant's conduct to have fallen below acceptable standards.")
Here, the United States argues that Pickens' negligence claim fails as a matter of law because Pickens does not provide evidence creating a genuine factual dispute concerning the first and third elements. Although it is debatable whether Pickens has created a factual dispute about foreseeability of risk of harm, the first element of negligence, Pickens has certainly not created a genuine issue of fact concerning the third element, whether the United States' conduct was unreasonable. Moreover, the result would have been the same even if I had permitted Pickens to rely on Mr. Fairchild's untimely filed expert statement. Thus, I grant summary judgment in favor of the United States.
The United States argues that its conduct did not cause a foreseeable risk of harm because: (1) the level of noise emitted by the security alarm to was within applicable safety standards; and (2) the lack of complaints concerning hearing-related injuries caused by the alarm made such an injury unforeseeable. Pickens does not dispute that the sound level emitted by the alarm was within applicable standards, but contends that compliance with such standards is not dispositive in determining foreseeability. Pickens argues that an injury from the alarm was foreseeable because the postmaster was aware that the alarm was too loud and because the postmaster was not surprised that Pickens suffered a hearing-related injury from her exposure to the alarm.
Oregon courts have consistently held that even where a statutory standard of care does not apply to a tort defendant, compliance with safety rules promulgated by state and federal authorities provides some indication of whether the defendant met the relevant standard of care. Hansen v. Abrasive Eng'g & Mfg., 317 Or. 378, 856 P.2d 625, 629 (1993). Here, although the parties disagree about the level of noise to which Pickens was exposed, even Pickens' noise exposure estimate of 108 decibels falls within the Occupational Health and Safety Administration maximum levels for industrial noise exposure (115 decibels for fifteen minutes a day), National Fire Protection Association fire alarm and signaling code maximum total sound pressure (110 decibels) and Uniform Federal Accessibility Standards audible alarm signals maximum (120 decibels). Thus, there is no factual dispute that Pickens' noise level exposure was authorized by applicable standards. Even though Pickens' expert asserts that noise exposure within the OSHA standards is not necessarily safe, I exclude that particular statement from consideration on this motion for summary judgment because, absent any reliable authority to support that conclusion, the statement would be inadmissible at trial. Nevertheless, the fact that Pickens was exposed to noise within the applicable standards does not conclusively establish that the 1625B machine's alarm did not create a foreseeable risk of injury.
Further, the cases cited by the United States that reference OSHA noise exposure regulations do not require this court to grant summary judgment on a negligence claim merely because the noise exposure fell below the maximum allowable levels. In Hoier v. Global Digital Media Xchange, Inc., an employee claimed he suffered permanent hearing loss and other injuries as the result of a "tonal blast" during an test of an evacuation alarm system at his workplace. Hoier v. Global Digital Media Xchange, Inc. No. B183060, 2006 WL 3423359, at *1, 2006 Cal.App. Unpub. LEXIS 10824, at *2 (Ct.App. Nov. 29, 2006). The employee sued the building owner and manager, the designer and the installer of the alarm system, and the manufacturer of components of the system for negligence. Id. A defense expert measured the alarm's maximum noise level at 115 decibels, within the applicable OSHA and NFPA standards. Id. at *1, 2006 Cal.App. Unpub. LEXIS 10824, at *3. Another defense medical expert found that the employee's hearing loss was not a result of an acute acoustical trauma due to an alarm tone burst, but rather was caused by a cumulative noise exposure over a prolonged period, exacerbated by the employee's work history as a rock musician, producer and audio engineer. Id. Following the presentation of evidence
In Salas v. Wetherington, a state prisoner filed a § 1983 action alleging that the correctional institution and its officers were liable under the Eight Amendment because fire alarms that activated and stayed on for an excessive period of time caused permanent damage to his ear drum. Salas v. Wetherington, No. 1:03-CV-32 (WLS), 2005 WL 3531467, at *1, 2005 U.S. Dist. LEXIS 38042, at *1-2 (M.D.Ga. Dec. 22, 2005). Defendants moved for summary judgment contending that the plaintiff failed to produce evidence of deliberate indifference to a substantial risk of serious harm. The defendants showed that prison log books had no entry for a fire alarm sounding during the time period in question, that the prisons fire alarms sounded at 103 decibels, a level considered to be safe by OSHA, and that any hearing damage the plaintiff sustained did not occur as a result of loud noises such as the fire alarm bells. Id. at *6-7, 8-9. In granting the defendant's motion for summary judgment, the district court concluded that "[t]he plaintiffs allegations remain unsupported by credible evidence and are largely conclusory, falling far short of overcoming the defendants' summary judgment showing." Id. at *4, 2005 U.S. Dist. LEXIS 38042, at *10. Consequently, Salas does not establish that summary judgment is warranted simply because the plaintiff was exposed to sound levels within the OSHA standards. In sum, as my analysis in the next section demonstrates, the United States could have created a foreseeable risk of injury even though the 1625B alarm emitted noise levels deemed acceptable by regulators and industry groups.
Whether a risk is foreseeable is a factual inquiry. Lamorie v. Warner Pacific College, 119 Or.App. 309, 850 P.2d 401, 402 (1993). The actual sequence of events causing an injury does not have to be predictable in order for the injury to be foreseeable. Id., citing Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326, 1338 (1987). Oregon cases establishes the general principle that injury need only fall into the general category of risk reasonably to be anticipated to be foreseeable. Connolly v. Bressler, 283 Or. 265, 583 P.2d 540, 542 (1978).
Pickens relies primarily on this principle of Oregon law to argue that her injury was
Unfortunately, this line of Oregon cases only establish that foreseeability is still a question for the factfinder where an unusual mechanism, like a gunshot-induced stampede or basketball scrimmage, causes an increased risk of any physical injury. This case requires analysis of a very different question. Here, this court must determine whether a reasonable juror could conclude that the existence of a common, unpleasant, but usually harmless condition—loud noise—creates a foreseeable risk of a very specific injury—hearing-related damage. The United States provides one case that is more directly focused on that type of inquiry.
In Kalmbach v. Hill, a police officer pulled over a man who drove more than 22 miles per hour above the speed limit with an expired license and without proof of insurance. Kalmbach v. Hill, Civil Case No. 07-786-KI, 2009 WL 395156, 2009 U.S. Dist. LEXIS 7819 (D.Or. February 2, 2009). There, the police ticketed the man and let him drive away, but eight hours later, the man drove the wrong way on the same highway, striking another car and causing a fatal injury. Id. at *3-4, 2009 U.S. Dist. LEXIS 7819, at *9. This court granted summary judgment in the negligence claim, concluding that "[s]peeding, an expired license and lack of proof of insurance are violations of the law that are
Here, it is unclear whether the loud volume of the 1625B alarm is qualitatively different from the alarm posing a risk to damage to the hearing of customers exposed to it. On one hand, courts have recognized the linkage between exposure to loud noises and hearing loss, indicating that exposure to loud noise is qualitatively similar to hearing-related injuries. In addressing a personal injury action under the Federal Employer's Liability by a former railroad employee alleging that he sustained hearing loss as a result of exposure to locomotive horns, the Second Circuit observed that "there is a generally understood causal connection between physical phenomena—in this case, very loud sounds, which we refer to colloquially as `deafening'—and the alleged injury. . . ." Tufariello v. Long Island Rail Road Co., 458 F.3d 80, 88 (2006), citing Simpson v. Northeast Ill. Reg'l Commuter R.R. Corp., 957 F.Supp. 136, 138 (N.D.Ill.1997). On the other hand, however, courts have noted that the precise noise level that produces hearing loss is not common knowledge, suggesting that mere exposure to a loud alarm might be qualitatively different from a severe hearing-related injury. See Turner v. Norfolk & Western Railroad Co., 785 S.W.2d 569, 571 (1990).
In this case, the Sherwood postmaster's testimony indicated that he was aware that the alarm was too loud but not that the alarm was harmful or injurious. Pickens presents evidence that the Sherwood postmaster held one ear when approaching the 1625B when the alarm had activated, thought the alarm was too loud, and had seen customers hurriedly leave the lobby, move away from the machine, or cover their ears when the alarm sounded. Consistent with those concerns, the postmaster asked if the alarm volume could be lowered. Thus, despite the lack of complaints of hearing-related injuries, the Sherwood postmaster attempted to reduce the volume of the alarm. These facts might permit a reasonable juror to find that the United States' conduct in continuing to use the loud alarm created a foreseeable risk of hearing-related injury.
Pickens does not provide sufficient evidence to create a genuine issue of material fact concerning the reasonableness of the United States' conduct. In determining whether a defendant's conduct is reasonable under Oregon law, the trier of fact may consider the following factors: (1) the "likelihood of harm;" (2) the "severity of the possible harm;" (3) the "cost of action that would prevent harm;" and (4) the "defendant's position, including the defendant's relationship with the plaintiff." Fuhrer v. Gearhart By the Sea, Inc., 306 Or. 434, 760 P.2d 874, 878 (1988). Like foreseeability, the reasonableness of a defendant's conduct should generally be determined by a factfinder, except in an "extreme case." Donaca v. Curry County, 303 Or. 30, 734 P.2d 1339, 1344 (1987). Oregon courts are mindful, however, that the reasonableness of defendant's conduct is a separate inquiry from foreseeability of harm. Graham v. Multnomah County, 158 Or.App. 106, 972 P.2d 1215, 1216-1217 (1999) ("we decline to equate and conflate the elements of foreseeability of harm and unreasonableness of conduct" because to do so would "greatly expand liability for negligence beyond that allowed under Fazzolari and its progeny.")
Regarding the first and second factors, "the character and probability of the risk that is claimed to be foreseeable bears on the steps [defendant] reasonably should take to avert it." Fazzolari, 734 P.2d at 1338. Here, the United States has produced ample evidence showing that the likelihood of a postal service customer suffering a hearing-related injury from exposure to the 1625B alarm is vanishingly low. For example, no individual other than Pickens had entered a claim against the postal service regarding a hearing injury from the alarm, a trainer who triggered the alarm hundreds of times during his classes reported that no student ever complained about the volume of the alarm, and a technician responsible for maintaining vending machines in the Portland heard the alarm more than 100 times but has never felt the need to protect his ears. Moreover, I am not persuaded by Pickens' argument that a risk of a hearing-related injury is much more likely because of the significant frequency of hearing loss from noise exposure nationwide. (D.'s Mot. for Summ. Judgm., #33-2, Ex. A at 3-4) (statement of United States' expert that "[A]pproximately 15% of people [in the US] between the ages of 20 and 69 have high frequency hearing loss that may have been caused by exposure to loud sounds or noise at work or in leisure activities.")
The second factor, severity of the possible harm, also favors the United States. Other than reporting Pickens' own tinnitus symptoms, Pickens presents no evidence concerning the severity of possible hearing-related injuries that could be caused by the 1625B alarm. On the other hand, the United States points to OSHA standards suggesting that exposure to the level of noise created by the alarm is harmless even without protective equipment. Thus, Pickens' failure to demonstrate that the alarm presents a risk of severe injury also weighs in favor of the United States.
Concerning the third factor, the cost of action to prevent the harm, the Oregon Supreme Court states that "`[c]ost' includes more than economic cost. Time, effort and risk to defendant are the primary considerations, although monetary cost may also affect the reasonableness of taking action." Gearhart By the Sea, 760 P.2d at 878. Here, the evidence presented by both parties demonstrates that considerable costs were associated with modifying or eliminating the alarm. First, the alarm volume could not easily be lowered. The Sherwood postmaster determined that 1625B alarm volume could not be altered because the alarm's sound level was "preset." (Kracke Deck, #53, Ex. C at 55). Moreover, the United States faced significant financial risk and additional security costs if the alarm was eliminated. The 1625B machine in the Sherwood post office was located in an outer lobby open to the public at all hours, where security was a problem and where there had been a prior break-in to postal boxes. The Sherwood machine typically contained over $4,000 in cash and products and other 1625B machines in Oregon had been victims of break-ins and thefts. (Fernald Decl., #41, ¶ 2.) Further, vending machine alarms were viewed as useful security measures to protect postal products, especially because of the high cost of using security cameras to monitor areas open to the public and because postal staff would be unlikely to respond to a security situation with a 1625B machine during the evening and weekend, when the machines were most vulnerable. Id. at ¶ 3; (Cort Decl., 39, ¶ 6). In sum, the time, effort, and risk to the United States of eliminating the alarm indicates that retaining the alarm was reasonable.
Finally, the fourth factor, the defendant's relationship with the plaintiff, does not alter the balance of this analysis showing that the United States acted reasonably. When the defendant's relationship to the plaintiff consists of a special relationship defined by existing law, Oregon courts have examined the reasonableness of defendant's conduct under that special definition. See Rex v. Albertson's, Inc., 102 Or.App. 178, 792 P.2d 1248, 1249 (1990) (in slip-and-fall case in grocery store, the "obligations of a storekeeper to a customer create a `special relationship' that takes the claim out of the general standards of common law negligence.") Thus, the analysis of the reasonableness of the United States' con duct should proceed
Overall, the relevant factors compel a finding that there is no genuine issue of material fact concerning the third element of a negligence action, whether the United States' conduct was unreasonable in light of the risk. The Oregon Supreme Court has required that "if the risk is great, either in likelihood or magnitude, and the cost is minimal, the reasonableness of the action should be determined by the factfinder." Gearhart By the Sea, 760 P.2d at 878. The opposite is the case here. Both the likelihood and magnitude of the risk of hearing-related injury are low, and the cost to prevent such a risk by eliminating the alarm is high. This is one of the extreme cases where the reasonableness of a defendant's conduct need not be determined by a factfinder. As a matter of law, the United States acted reasonably by employing the 1625B alarm.
For the foregoing reasons, the defendant's motion to strike (#54) is denied. As a sanction under Rule 37, plaintiffs untimely exchanged expert report from Michael Fairchild is disregarded, except for the expert's reference to his review of plaintiff's medical records, which is properly considered as a supplement to the original report. Defendant's motion for summary judgment (#32) is granted. Judgment is entered accordingly.
(Kracke Decl., #53, Ex. C at 51-52.) I, however, do not agree with Pickens that the postmaster's belief in the truthfulness of Pickens' complaint indicates that the United States created a foreseeable risk of injury. The postmaster's testimony shows only that he found Pickens' complaint credible considering her advanced age, not that such injury was necessarily foreseeable.
