United States District Court, M.D. Georgia, Macon Division
T. TREADWELL JUDGE
United States of America has moved for summary judgment. Doc.
23. For the following reasons, the Government's motion
(Doc. 23) is GRANTED.
November 4, 2015, Plaintiff Dustin Hoose, who had just made a
delivery to the Robins Air Force Base Commissary, was injured
while leaving the Commissary parking lot when a wind-blown
gate arm hit his delivery truck. Doc. 25 at 22:15-17,
34:13-18, 36:1-3, 53:25-54:9, 62:22-63:23, 74:18-94:15. The
gate, which secured the only entrance to and exit from the
parking lot, simply consisted of two swinging metal arms that
RAFB personnel would close when the parking lot was closed.
Doc. 31 at 13:9-18. Because he regularly made deliveries to
the Commissary, Hoose was very familiar with the gate. Doc.
25 at 21:5-17. Sometimes, when he arrived to make a delivery,
the gate would be locked, and he would have to wait until the
gate was opened. Id. at 33:1-5. When the gate was
open, the arms were not “secured.” Doc. 31 at
13:9-21. Rather, personnel would simply push the arms past
the curb and out of the roadway. Id. On five or six
occasions, Hoose saw the gate arms swing a few inches back
and forth on windy days. Doc. 25 at 37:23-25. He recognized
this was a potential “hazard” based on his
knowledge of Occupational Safety and Health Administration
“laws.” Id. at 38:7-11, 40:10-22.
Consequently, he reported the hazard to his supervisor
approximately a month before his accident. Id. at
38:12-39:13. However, Hoose never reported the hazard to RAFB
personnel, and there is no evidence that RAFB personnel knew
that winds could blow the gate arms into the roadway.
Id. at 39:14-15; Doc. 31 at 16:2-17, 17:9-15. In
fact, according to Michael Graham, who opened and closed the
gate each day, not even a previous F-1 tornado caused the
gate arms to move. Doc. 31 at 15:6-11.
Hoose was injured was a windy day, but the gate arms were
stationary when he entered the parking lot. Doc. 25 at
43:18-21, 44:15-22. After making his delivery and as he
approached the gate, “he noticed that one of the gates
had swung several feet back into the right side of the
roadway.” Doc. 30-1 at 3 (citing Doc. 25 at 52:17-24,
53:2-10). To avoid the gate arm, he moved to the center of
the roadway. Doc. 25 at 53:3-14. As he neared the gate, he
felt a gust of wind through his truck's open windows and
then saw the right gate arm swing further into the roadway
and toward his truck. Id. at 53:24-54:15. The gate
arm was “not like really fast, but not creeping. It was
. . . almost like a push on the gate.” Id. at
56:3-6. The gate arm hit the fender, and then hit the
windshield. Id. at 56:19-24. The windshield
broke, and the gate arm struck Hoose's right arm and the
back of his head. Id. Hoose claims he suffered a
knot on the back of his head which has resulted in ongoing
headaches, anxiety, and memory loss. Id. at 63:6-10,
alleges in his complaint that the government was negligent
for failing to secure the gate. See generally Doc.
MOTION FOR SUMMARY JUDGMENT STANDARD
shall grant summary judgment “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). “When the moving party has
the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of
material fact: it ‘must support its motion with
credible evidence . . . that would entitle it to a directed
verdict if not controverted at trial.' In other words,
the moving party must show that, on all the essential
elements of its case on which it bears the burden of proof at
trial, no reasonable jury could find for the nonmoving
party.” United States v. Four Parcels of Real
Prop., 941 F.2d 1428, 1438 (11th Cir. 1991) (emphasis in
original) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 331 (1986) (Brennan, J., dissenting)) (other
citation omitted). “Only when that burden has been met
does the burden shift to the non-moving party to demonstrate
that there is indeed a material issue of fact that precludes
summary judgment.” Clark v. Coats & Clark,
Inc., 929 F.2d 604, 608 (11th Cir. 1991).
determining whether a genuine dispute of material fact
exists, the Court must avoid weighing conflicting evidence or
making credibility determinations. Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th
Cir. 1999). Instead, “[t]he evidence of the non-movant
is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (citation omitted). A
material fact is any fact relevant or necessary to the
outcome of the suit, and a factual dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
The FTCA and Applicable Law
Government is generally immune from suit unless it waives
sovereign immunity. United States v. Sherwood, 312
U.S. 584, 586 (1941); Monzon v. United States, 253
F.3d 567, 570 (11th Cir. 2001). Under the FTCA, the
Government waives sovereign immunity in actions by private
parties for torts committed by employees acting on behalf of
the Government if a private individual would be liable to the
plaintiff. 28 U.S.C. § 1346(b)(1). FTCA claims are
governed by the substantive law of the state where the
alleged act or omission giving rise to liability occurred.
Id. The alleged omission in this case occurred on
RAFB in Warner Robins, Georgia, and Georgia law thus applies.
Georgia, an owner or occupier of land owes a duty to
invitees to exercise ordinary care to keep the
premises and approaches safe. O.C.G.A. § 51-3-1.
Generally, in a premises liability action, the
“plaintiff must prove that (1) the owner or proprietor
had actual or constructive knowledge of the hazard and (2)
the plaintiff lacked knowledge of the hazard despite
exercising ordinary care.” Kennestone Hosp., Inc.
v. Harris, 285 Ga.App. 393, 394, 646 S.E.2d 490, 493
(2007) (quotation marks and citation omitted). The
Government, in its motion and briefs, does not argue that
Hoose cannot meet his burden of proving the
Government's superior knowledge of the
hazard. Rather, the Government argues that it has,
as a matter of law, established its affirmative defense of
assumption of risk. Doc. 23-1 at 5-7.