The opinion of the court was delivered by: Ralph R. Beistline United States District Judge
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
Before the Court is a complaint for negligence filed by Plaintiff Carol Bolt against the United States of America under the Federal Tort Claims Act. Plaintiff claims that the U.S. Army, which owns and operates the base at Fort Wainwright, Alaska, was negligent in its maintenance of the property. She further claims that this negligence was the proximate cause of injuries she sustained when she slipped and fell while carrying trash to the dumpster in the parking lot of her miliary housing unit on the morning of April 1, 1999.
More specifically, Ms. Bolt claims that the Army had a duty to remove snow from the parking lot prior to the date of her accident, and that the Army's breach of this duty resulted in unreasonably icy and dangerous conditions that precipitated her accident. According to Bolt, the Army's duty to remove snow prior to the date of the accident arose under both Army regulations and common law negligence. Therefore, in addition to common law negligence, she seeks relief under the doctrine of negligence per se.
The Government denies liability and raises the defense of comparative negligence. Trial took place on March 4-6, 2009. A final decision was extensively delayed due to Plaintiff's insistence that the Court address perceived discovery violations by Defendant before rendering its decision. This the Court did, finding no such violations occurred.
Trial took place in Fairbanks, Alaska, on March 4 through 6, 2009. Pages 2 through 21 contain an overview of the trial testimony.
Plaintiff first called Sajid Kahn to the stand. At the time of Plaintiff's accident, Mr. Kahn was a Sergeant on active duty in the Army. In addition to his regular military duties, he had an additional assignment as the area coordinator for the housing unit in which Plaintiff was then living.
Plaintiff's Exhibit 49 is a copy of Mr. Kahn's appointment as area coordinator. The appointment memorandum specifically states that Mr. Kahn is "responsible for the safety, health and well being of the families within" his assigned area.*fn1 On the stand, Mr. Kahn agreed with Plaintiff's counsel that he had the "duty to coordinate building residents to ensure that all adjoining areas and common areas were clear of snow and ice."
Plaintiff's counsel questioned Mr. Kahn about statements that he made in November 1999 during an interview with a private investigator. At that time, Mr. Kahn said that the snow had not been removed from the dumpster area at the time that Ms. Bolt fell, and that the area would have been safer had the snow been removed by plowing. The reason the snow had not been removed is that there were residents' cars remaining in the parking lot, and the Army refused to plow parking lots with cars in the lot. He also said in the 1999 interview that the area near the dumpster was a tricky spot due to melting ice, which would pool in low spots and then refreeze, making the area slippery and dangerous to walk on.
At trial, however, Mr. Kahn testified that he was no longer certain that the failure to remove snow prior to Ms. Bolt's accident made the area more dangerous. He stated that after living in Alaska for the last ten years, he now knows that snow plowing can sometimes make the ground more slippery in the short term by glazing over the ice. He attributed his prior contrary statements to the fact that he had only recently arrived in Alaska when he was interviewed back in 1999 and did not yet understand very well the effects of snow removal.
One common method used by the Army for making parking lots less slippery was to spread sand over icy areas. Mr. Kahn did not specifically recall, either during his trial testimony or during his prior deposition, whether he had "sanded" the area around the dumpster in the days leading up to Plaintiff's accident. He was insistent, however, that he was typically very vigilant about remedying dangerous situations. He also insisted that the residents shared in the obligation to spread sand over icy areas.
Mr. Kahn was aware prior to the accident that the area around the dumpster was a dangerous spot because it had a greater tendency to melt and refreeze than other areas in the parking lot. He later found out that this phenomenon was caused by a utility duct that ran underneath the dumpster area. Mr. Kahn did not report the conditions around the dumpster to anyone prior to Ms. Bolt's accident. He did report the conditions to the Director of Public Works (DPW) after the accident.
Mr. Kahn did not recall at either the trial or his deposition whether there was a regular schedule for sanding the parking lot. He does remember that he had a schedule for inspecting common areas such as the parking lot. His regular practice was to sand if needed. As far as his responsibility for organizing the residents to remedy the icy conditions goes, he preferred to lead by example rather than specifically asking each resident to take part in the shoveling and sanding. According to Kahn, the icy areas were not too dangerous if sanded, although spreading sand is not a magic bullet.
On cross-examination, Mr. Kahn discussed the fact that the Resident's Handbook, Exhibit G, specifies that the residents have the responsibility to clear "snow and ice from steps, porches, driveways, mailboxes and sidewalks" near their quarters.*fn2 The Handbook also informed residents that they could obtain ice melt, shovels, and ice chippers from the base Self-Help center at no cost. He observed the residents shoveling snow and ice maybe "once or twice a week."
Mr. Kahn said that the amount of ice melt and sand that could be obtained for free from Self Help was not sufficient for an entire winter, and that he often used his own money to buy extra as a favor to the residents. He stated that he would not inform Post Services, DPW, or the mayor if there was a hazardous condition that he or the other residents could take care of themselves.
Mr. Kahn did not see Ms. Bolt fall and cannot say for certain where she fell.
Mr. Meeks is the civilian Director of Public Works for Fort Wainright, a position which he held as an active duty member of the military at the time of Plaintiff's accident. He was a defense witness, but was called out of turn due to scheduling conflicts.
Exhibit E is the Fort Wainwright Snow Removal Policy that was effective in 1999. The Policy was approved by John Curry, the Post Commander at that time, after a series of public town hall meetings attended by servicemen and family members. Notice of these meetings was posted at the Post Exchange.
The first paragraph of the Snow Removal Plan states: Public Works staffing for snow removal operations has been cut by 48% from the staffing level of the 1997-1998 winter season. This is a result of the ongoing USARAK hiring freeze and the FY98 and FY99 work year restrictions imposed by higher headquarters. Snow removal operations will be conducted in accordance with the priority system as outlined in this plan[.] [H]owever[,] response times will be extended due to the staffing cut.*fn3 The Plan provides for five different priority levels of snow clearing, with snow removal conducted in order of priority. The fifth and lowest level of priority includes "Family Hosing Parking Areas (cleared once per year in late February or March)."*fn4
Mr. Meeks testified that the snow removal crew would annually list the order of snow removal for the various housing units. Public Works would then go down the list removing snow from the parking areas one by one. Residents would receive at least three days' notice before snow removal in order to give them time to remove all cars from the parking lot. If there were cars remaining in a parking lot on the list, it would be bumped to the bottom of the list. This information is also provided in the Snow Removal Policy.
The primary reason for not plowing parking lots with cars in them is one of safety; children may be in and around those vehicles. Also, Public Works was concerned about damage to the vehicles themselves. Additionally, because the housing units were at the bottom of the priority list for snow removal (behind roads and important military facilities such as the hospital and airfield), any new snowfall during the regular snow removal period could result in a delay.
Mr. Meeks stated that the reason for removing snow once a year from the parking lots was to keep accumulated snow from melting and then refreezing during the early stages of the spring thaw. It was impractical based on their resources to plow more often.
Mr. Meeks believed that the snow removal policy represented a "goal" for Public Works to pursue, rather than a "statute" which was binding upon them. Every year that he has been employed with Public Works, there were delays due to residents' failure to remove cars from their parking lots.
In 1999, the winter of Plaintiff's accident, Public Works scheduled some snow removal for April 1, outside the "late February and March" time frame mentioned in the snow removal plan. Mr. Meeks also testified that even if all of the snow removal had been scheduled only through the end of March, it would be impossible to complete all of it before the end of March 31 due to delays, including residents' failure to remove cars, along with the requirement of three days' notice of any rescheduled snow removal. The February/March time frame was only a target, and time overruns into April were a practical certainty according to Mr. Meeks. The only reason for stating the February/March time frame in the Snow Removal Policy was so that residents would have some general idea of when to expect snow removal. Had Public Works scheduled the snow removal any earlier in the winter, they ran the risk of having substantial snowfall after the plowing period.
With a 48% staffing cut for the winter of 1998-99, Public Works anticipated even worse problems with snow removal delays. Plaintiff's unit was scheduled for snow removal on March 9, 1999. Mr. Meeks does not know why her lot was not plowed on that date.
According to Mr. Meeks, gravel was freely available from Self-Help, although a resident or housing coordinator could only obtain a limited amount of ice-melt for free. Mr. Meeks agrees with Sgt. Kahn that it was Kahn's duty to oversee the residents in their remedying of hazardous, icy conditions, and that the residents also had a personal responsibility to participate if able to do so. The residents were not expected to remove all snow down to the asphalt, but rather were expected to remedy small problems around the common areas such as dumpsters, fire hydrants, and postal boxes. Even the snow plowing by Public Works was not meant to remove all snow, but merely to make the parking lot "passable."
Meeks said it was "bad form" to tow the vehicle of a soldier on deployment overseas in order to clear the parking lot.
Plaintiff next called Paul DeHaven, who at the time of Plaintiff's accident was employed by the Army as the Foreman of Roads and Grounds at Fort Wainwright.
During Mr. DeHaven's tenure he kept records of when and where snow was plowed at Fort Wainwright, but has not seen those records since he left that office. There was no requirement for him to retain such documents.
DeHaven concurs with the previous witnesses that it was routine for plowing to run into April. The Army had previously tried to plow twice per winter, once in late autumn and once in spring, but it turned out to be pointless due to the heavy winter ...