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Hoose v. United States

United States District Court, M.D. Georgia, Macon Division

November 13, 2019

DUSTIN HOOSE, Plaintiff,



         Defendant United States of America has moved for summary judgment. Doc. 23. For the following reasons, the Government's motion (Doc. 23) is GRANTED.

         I. BACKGROUND [1]

         On 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.[2] 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.

         The day 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.[3] 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, 68:14-19, 92:17-93:13.

         Hoose alleges in his complaint that the government was negligent for failing to secure the gate. See generally Doc. 1.


         A court 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.”[4] 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).

         In 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. at 248.


         A. The FTCA and Applicable Law

         The 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.

         In Georgia, an owner or occupier of land owes a duty to invitees[5] 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.[6] Rather, the Government argues that it has, as a matter of law, established its affirmative defense of assumption of risk.[7] Doc. 23-1 at 5-7.

         B. ...

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