United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER, UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Defendant's Motion for
Summary Judgment [Doc. 33].
Plaintiff, proceeding pro se, brings this action against the
United States of America, seeking damages under the Federal
Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671-2680
(“FTCA”), for injuries she allegedly sustained
after tripping on a stone walkway at the Newfound Gap
observation area in the Great Smoky Mountains National Park.
United States filed the present Motion for Summary Judgment
on November 28, 2017. [Doc. 33]. Pursuant to Roseboro v.
Garrison, 528 F.3d 309 (4th Cir. 1975), the Court issued
an order advising the Plaintiff of her obligations in
responding to the United States' Motion. [Doc. 36]. The
Plaintiff filed a Response in opposition on December 19,
2017. [Doc. 38]. The United States elected not to file a
reply. [Doc. 40].
been fully briefed, this matter is ripe for disposition.
STANDARD OF REVIEW
judgment is proper “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 fact is “material” if it “might
affect the outcome of the case.” News and Observer
Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010). A “genuine dispute”
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
asserting that a fact cannot be genuinely disputed must
support its assertion with citations to the record or by
showing that the adverse party cannot produce admissible
evidence to support that fact. Fed.R.Civ.P. 56(c)(1).
“Regardless of whether he may ultimately be responsible
for proof and persuasion, the party seeking summary judgment
bears an initial burden of demonstrating the absence of a
genuine issue of material fact.” Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522
(4th Cir. 2003). If this showing is made, the burden then
shifts to the non-moving party who must convince the court
that a triable issue exists. Id. Finally, in
considering a party's summary judgment motion, the Court
must view the pleadings and materials presented in the light
most favorable to the non-moving party, and must draw all
reasonable inferences in favor of the non-movant as well.
Adams v. Trustees of Univ. of N.C. -Wilmington, 640
F.3d 550, 556 (4th Cir. 2011).
following forecast of evidence is not in dispute.
December 21, 2014, the Plaintiff, along with her husband and
their two young granddaughters, drove from Gatlinburg,
Tennessee to the Newfound Gap observation area in the portion
of the Great Smoky Mountains National Park located in North
Carolina. [Deposition of Patricia Machnik (“P. Machnik
Dep.”), Doc. 34-1 at 22-37; Deposition of Max E.
Machnik (“M. Machnik Dep.”), Doc. 34-2 at 3-20].
As the Plaintiff's husband explained:
We got out of the car. The girls got out. . . . they were
kind of excited. They wanted to go look at the overview and
they took off - they start taking off running. And you have
to be real careful because there was just a little wall
there. But before you get to the wall and the actual
observation area, there's like the parking lot, sidewalk,
and then a piece of grass and then a sudden drop right off of
that. So ...