United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant's motion to
dismiss. [DE 6]. The motion is ripe for disposition. For the
reasons that follow, defendant's motion to dismiss [DE 6]
January 29, 2018, plaintiff walked into the U.S. Post Office
at 905 S. Garnett Street in Henderson, North Carolina, and
slipped on a clear liquid on the floor. [DE 1, ¶¶
4-5]. There was no posted warning about the liquid on the
floor and the postal worker on duty, Ms. Gwen O'Neal, did
not warn plaintiff about the liquid. Id.
¶¶ 6-7. Ms. O'Neal completed an incident report
about plaintiffs fall and photographed her knees.
Id. ¶¶ 10-11. As a result of her fall,
plaintiff suffered injuries that required medical attention.
Id. ¶¶ 12-13.
2019, plaintiff initiated the instant action against the U.S.
Postal Service, alleging a single negligence claim under the
Federal Tort Claims Act, 28 U.S.C. §§ 2671, et
seq. [DE 1]. Defendant has moved to dismiss plaintiffs
complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, arguing that plaintiff has not plausibly alleged
that defendant had actual or constructive notice of the clear
liquid on the floor of the Henderson Post Office and that
plaintiff therefore cannot prevail on her negligence claim.
[DE 6, 7]. Plaintiff has not timely responded to
defendant's motion to dismiss.
has moved to dismiss plaintiffs complaint for failure to
state a claim upon which relief can be granted under Rule
12(b)(6). When considering a motion to dismiss under Rule
12(b)(6), "the court should accept as true all
well-pleaded allegations and should view the complaint in a
light most favorable to the plaintiff." Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A
complaint must state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Facial plausibility means that the court can
"draw the reasonable inference that the defendant is
liable for the misconduct alleged," as merely reciting
the elements of a cause of action with the support of
conclusory statements does not suffice. Iqbal, 556
U.S. at 678. The Court need not accept the plaintiffs legal
conclusions drawn from the facts, nor need it accept
unwarranted inferences, unreasonable conclusions, or
arguments. Philips v. Pitt County Mem. Hosp., 572
F.3d 176, 180 (4th Cir. 2009).
the United States and its agents, acting within the scope of
their official government employment, enjoy sovereign
immunity. United States v. Sherwood, 312 U.S. 584,
586 (1941). The Federal Tort Claims Act (FTCA) provides a
limited waiver of sovereign immunity, however, providing the
exclusive remedy "for injury or loss of property . . .
arising or resulting from the negligent or wrongful act or
omission of any employee of the [United States] while acting
within the scope of his office or employment." 28 U.S.C.
§ 2679(b)(1). Under the FTC A, the substantive law of
the place where the act or omission occurred is the law that
must be applied. Cibula v. United States, 551 F.3d
316, 319 (4th Cir. 2009) (citing 28 U.S.C. §
1346(b)(1)). Because the acts or omissions in this case took
place in North Carolina, the Court applies North Carolina
order to prevail in a negligence action, plaintiffs must
offer evidence of the essential elements of negligence: duty,
breach of duty, proximate cause, and damages."
Camalier v. Jeffries, 340 N.C. 699, 706, 460 S.E.2d
133, 136 ( N.C. 1995) (citing Lamm v. Bissette Realty,
Inc., 327 N.C. 412, 395 S.E.2d 112 ( N.C. 1990)). In
order to prove negligence in a premises liability case, a
plaintiff must show that the 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." Roumillat v.
Simplistic Enters., Inc., 331 N.C. 57, 64, 414 S.E.2d
339, 342-43 ( N.C. 1992), abrogated on other grounds by
Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 ( N.C.
1998) (citing Hinson v. Cato 's, Inc., 271 N.C.
738, 739, 157 S.E.2d 537, 538 ( N.C. 1967)).
motion to dismiss must be denied. Here, plaintiff appears to
proceed under the second theory, as she does not specifically
allege that the Post Office negligently created the condition
that caused her injury. Under the second theory, the Post
Office had a duty to act reasonably to correct the condition,
but only if it had "actual or constructive notice"
of the condition's existence. Defendant argues that
plaintiff has not alleged sufficient facts to demonstrate
that the Post Office had actual or constructive notice of the
clear liquid on the floor in January 2018. The Court,
however, disagrees. Accepting plaintiffs factual allegations
as true and drawing all reasonable inferences in plaintiffs
favor, plaintiff has sufficiently alleged that the Post
Office had actual or constructive notice of the clear liquid
on the floor. As such, plaintiff has plausibly alleged that
defendant was negligent in failing to correct the condition,
and defendant's motion to dismiss is denied.
because the only proper defendant in this FTCA action is the
United States of America, the United States of America is
hereby substituted as the party defendant on plaintiffs
negligence claim and plaintiffs claim against the U.S. Postal
Service is dismissed. See Iodice v. United States,
289 F.3d 270, n.l (4th Cir. 2002) (finding that, on FTCA
claims against the U.S. Department of Veterans Affairs, only
the United States was the proper defendant).
above reasons, defendant's motion to dismiss [DE 6] is
DENIED. The United States of America is hereby ...