United States District Court, E.D. North Carolina, Northern Division
Earl Britt, Senior U.S. District Judge.
matter is before the court on defendant United States of
America's motion for summary judgment. (DE # 14.)
Plaintiff filed a response in opposition to the motion. (DE #
20.) Defendant filed a reply. (DE # 24.) Defendant has also
filed a motion to seal plaintiff's medical records, which
defendant submitted in support of its motion for summary
judgment. (DE # 19.) Plaintiff did not respond. Thus, the
motions have been fully briefed and are ripe for disposition.
claim stems from her 11 March 2015 fall at the United States
Post Office in Windsor, North Carolina. Plaintiff arrived at
the post office that day around 1:30 p.m. (Pl.'s Dep., DE
# 17-1, at 5-6.) At that time, the sales and service area of
the post office was closed and inaccessible to the public,
but the post office box area was accessible to the public.
(Marley Decl., DE # 17-6, at 3.) Plaintiff parked and then
went to retrieve mail from her post office box. (Pl.'s
Dep., DE # 17-1, at 7.) As she was walking into the post
office on the sidewalk adjacent to the building, plaintiff
saw three or four plastic bands “on the ground
moving." (Id. at 8, 19, 23- 24.) The bands were
made of a clear plastic, such that “some of them blend
in.” (Id. at 18-20.) Plaintiff was able to
walk over the bands when entering the post office.
(Id. at 19; see also id. at 31.) After
retrieving her mail, plaintiff exited the building and began
walking back down the sidewalk. (Id. at 9, 12.) She
noticed a person walking in front of her, whom she later
found out was a Windsor post office employee. (Id.
at 12, 14-15.) Plaintiff suddenly fell forward, landing on
her knees and hands. (Id. at 12.) When she looked
down, she saw “a bunch of” plastic
bands-“more than ten” of them-at her feet.
(Id. at 17-18.) Although she stepped over some bands
previously, according to plaintiff, “the wind was
blowing, so it's a possibility [that the bands] could
have been blown” elsewhere. (Id. at 19.)
Plaintiff estimates that the wind was blowing “about
five miles per hour” and also blowing leaves on the
ground. (Id. at 23.)
her fall, plaintiff described this sequence of events to the
Windsor postmaster, Phillip Marley. (See id. at
25-27; Marley Decl., DE # 17-6, at 4.) They went together to
the area where she fell, and she showed him her injuries.
(Pl.'s Dep., DE # 17-1, at 27.) According to plaintiff,
Postmaster Marley “saw the stuff and . . . said
something to the effect that the workers were . . .
incompetent[.]” (Id. at 26.) Plaintiff went to
the emergency room to seek treatment for her injuries, where
she was given a brace for her left wrist and pain medication
for a month. (Id. at 29-30.)
part, defendant acknowledges that plastic bands are common at
post offices, as they “are used to bundle presorted
mail flats and circulars.” (Marley Decl., DE # 17-6, at
2; see also Williams Decl., DE # 17-7, at 1.)
Defendant is aware these bands are “a potential
tripping hazard.” (Williams Decl., DE # 17-7, at 2.) In
fact, it contracted with a janitor to be responsible for
disposing of the bands. (Id. at 2.) The janitor is
also contracted to inspect the post office grounds.
(Id.) Also, Postmaster Marley normally inspected the
grounds each morning. (Id. at 2-3.) However, he does
not recall whether he did so on the date plaintiff fell.
(Id. at 3.)
plaintiff told him she fell, Postmaster Marley denies seeing
any plastic bands on the sidewalk or elsewhere. (Marley
Decl., DE # 17-6, at 4.) Christine Williams, a postal
employee who saw plaintiff immediately after she fell, did
not see any plastic bands or anything else around
plaintiff's feet that would have caused plaintiff to trip
or slip. (Williams Decl., DE # 17-7, at 3.) Additionally,
according to Postmaster Marley, no one reported seeing any
bands on the post office grounds prior to or after plantiff
fell. (Marley Decl., DE # 17-6, at 5.)
brings this action pursuant to the Federal Torts Claim Act
(“FTCA”), alleging that defendant's
negligence led to her injury. (Compl., DE # 1, ¶ 1.)
After her administrative claim was denied, she timely filed
her complaint in this court. (Id. ¶ 5.)
Defendant claims summary judgment is appropriate because: (1)
plaintiff cannot establish that defendant created the
hazardous condition or had actual or constructive notice of
that condition; (2) plaintiff cannot establish that defendant
negligently inspected the premises; and (3) plaintiff was
contributorily negligent. (Def.'s Mem., DE # 15, at 7.)
In response, plaintiff argues that issues of material fact
exist, specifically whether: (1) postal employees caused the
plastic bands to be present on the post office grounds; (2)
postal employees failed to correct the hazardous condition
after actual or constructive notice of the condition; and (3)
plaintiff should have seen the plastic bands on the ground
when leaving the post office. (Pl.'s Resp., DE # 20, at
judgment is proper only 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). A genuine factual issue exists “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party
seeking summary judgment bears the initial burden of
demonstrating the absence of any genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). Once the moving party has met its burden, the
nonmoving party then must affirmatively demonstrate with
specific evidence that there exists a genuine issue of
material fact requiring trial. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
In determining whether an issue of fact exists, the court
must view the evidence and inferences drawn therefrom in the
light most favorable to the nonmoving party. Shealy v.
Winston, 929 F.2d 1009, 1011 (4th Cir. 1991).
this claim arises under the FTCA, the law of North Carolina,
where the accident occurred, applies. See 28 U.S.C.
§ 1346(b)(1); Medina v. United States, 259 F.3d
220, 223 (4th Cir. 2001). Plaintiff's negligence claim is
based on her status as defendant's invitee. The
owner's duty to an invitee is “to exercise
‘ordinary care to keep in a reasonably safe condition
those portions of its premises which it may expect will be
used by its customers during business hours, and to give
warning of hidden perils or unsafe conditions insofar as they
can be ascertained by reasonable inspection and
supervision.'” Hines v. Wal-Mart Stores E.,
L.P., 663 S.E.2d 337, 339 ( N.C. Ct. App. 2008) (quoting
Raper v. McCrory-McLellan Corp., 130 S.E.2d 281, 283
( N.C. 1963)). To prove her negligence claim, the
invitee-plaintiff must show that the owner-defendant
“either (1) negligently created the condition causing
the injury, or (2) negligently failed to correct the
condition after actual or constructive notice of its
existence.” Id. at 339-40 (citing Hinson
v. Cato's, Inc., 157 S.E.2d 537, 538 ( N.C. 1967)).
North Carolina law, a plaintiff is completely barred from
recovering for any injury proximately caused by the
plaintiff's contributory negligence.” Thorpe v.
TJM Ocean Isle Partners LLC, 733 S.E.2d 185,
188 ( N.C. Ct. App. 2012) (citation omitted). A plaintiff is
contributorily negligent if “(1)  the plaintiff
failed to act with due care and (2) such failure proximately
caused the injury.” Id. at 190 (citation
omitted). In the context of an injury caused by an unsafe
condition, “[t]he doctrine of contributory negligence
will preclude a defendant's liability if the [plaintiff]
actually knew of the unsafe condition or if a hazard should
have been obvious to a reasonable person.” Id.
(internal quotation marks and citation omitted) (alterations
in original). Because “the question of contributory
negligence is ordinarily one for the jury[, ]” courts
should only grant summary judgment on the issue if “the
evidence is uncontroverted that a party failed to use
ordinary care and that want of ordinary care was at least one
of the proximate causes of the injury . . . .”
Id. (internal quotation marks and citation omitted).
genuine issues of material fact exist as to whether defendant
negligently caused the plastic bands to be present on the
sidewalk and whether it failed to warn of or correct the
condition after actual or constructive notice of its
existence, summary judgment on plaintiff's claim is
inappropriate. Similarly, the court concludes that a genuine
issue material fact exists as to whether plaintiff knew, or
should have known, of the existence of the plastic bands in
the location where she fell. Accordingly, the court must deny
defendant's motion for summary judgment.
court now turns to defendant's motion to seal
plaintiff's medical records filed in support of its
motion for summary judgment. Public access to documents filed
with the court arises from two sources: the First Amendment
and the common law. United States v. Appelbaum, 707
F.3d 283, 290 (4th Cir. 2013). “For a right of access
to a document to exist under either the First Amendment or
the common law, the document must be a ‘judicial
record.'” Id. (citation omitted).
“Judicial records” include not only orders filed
by the court but also documents filed with the court that
“play a role in the adjudicative process . . . .”
Id However, “the mere filing of a document
with the court does not render the document judicial.”
In re Policy Mgmt. Sys. Corp., Nos. 94-2254,
94-2341, 1995 WL 541623, at *4 (4th Cir. Sept. 13, 1995)
(citing United States v. Amodeo, 44 F.3d 141, 145
(2d Cir. 1995)). Plaintiffs medical records are not relevant
to the issues underlying the motion for summary judgment. As
a result, the court has not considered plaintiffs medical
records in reaching its decision on the motion. Therefore,
there is no right of public access to plaintiffs medical
records, and the court will grant the motion to seal.
defendant's motion for summary judgment is DENIED, and