Nicholas Malfitano May 20, 2016, 9:33am


PHILADELPHIA – Negligence charges against a local church and the United States Postal Service (USPS) in a slip-and-fall case will proceed in federal court, but a loss of consortium claim associated with that same complaint, in part, will not.

U.S. District Court for the Eastern District of Pennsylvania Judge Stewart Dalzell ruled Tuesday that a motion to dismiss from the United States in the lawsuit brought by Philadelphia residents Velmon & Johnny Johnson’s would be denied as to the plaintiffs’ negligence claim, but granted as to Mr. Johnson’s loss of consortium claim.

On Feb. 19, 2014, Velmon Johnson says she was injured when she slipped and fell on an icy sidewalk outside the property at 1613 East Wadsworth Avenue. The plaintiffs averred the property in question was owned, operated and maintained by the defendants; the United States, the USPS and Agape Ministries/Agape Baptist Church, who were responsible for clearing the ice and snow from the sidewalk.

“On the date in question, plaintiffs allege there was a dangerous accumulation of ice on the sidewalk that defendants permitted to exist for a significant period of time prior to Mrs. Johnson’s accident. As a result of her fall, Mrs. Johnson fractured her right elbow, which had to be surgically repaired,” Dalzell said.

On June 4, Mrs. Johnson submitted a claim to the USPS regarding her slip and fall, and on Dec. 21, her counsel sent a letter to the USPS’s tort claims coordinator. The letter stated Mrs. Johnson “intended to file suit, because she had not received a final disposition of her claim within six months.”

Count I consisted of a negligence claim against Agape for allowing the ice to accumulate, failing to remove the ice, and failing to warn Mrs. Johnson of the dangerous condition, with Count II being an identical claim against the United States and the USPS. In Count III, Mr. Johnson brings a loss of consortium claim against all of the defendants.

The United States motioned to dismiss Counts II and III of the complaint for failure to state claim and failure to exhaust administrative remedies, respectively, while Agape has not yet motion to dismiss the lone count against it, Count I.

“Although the complaint does not go into detail regarding the accumulated ice, it claims that defendants permitted the ice to accumulate for a significant period of time before Mrs. Johnson’s accident,” Dalzell said. “Plaintiffs have made factual allegations that Mrs. Johnson slipped and fell on an icy sidewalk that the United States was either wholly or partly responsible for maintaining, and that the United States failed to timely discover, remove, and/or warn about the icy conditions. Such allegations suffice to state a plausible claim for relief, and we will therefore deny the United States’s motion to dismiss Count II of the complaint.”

As to the loss of consortium claim, the United States argued it should be dismissed due to Mr. Johnson “failing to exhaust his administrative remedies…because he never made an administrative claim for damages to the USPS.” Mr. Johnson countered because his wife’s claim to the USPS showed they were married, he was not required to submit a separate administrative claim.

“Under the Federal Tort Claims Act (FTCA), a party cannot sue the United States for money damages unless that party first files a claim with the appropriate federal agency and that agency either denies the claim in writing or fails to make a final disposition within six months, which is treated as a denial,” Dalzell said. “A tort claim against the United States is totally barred unless it is presented in writing to the appropriate Federal agency within two years after the claim accrues.”

Dalzell explained the plaintiffs bore the burden of proof to satisfy these presentment and denial requirements, and spouses suing federal agencies for loss of consortium must fulfill the FTCA’s jurisdictional requirements by filing a separate administrative claim.

“Mr. Johnson cannot proceed on his loss of consortium claim against the United States because he has failed to exhaust his administrative remedies with the USPS. Tort claims against the United States are barred unless the claimant presents his claim in writing to the appropriate Federal agency within two years after the claim accrues,” Dalzell stated.

“Mr. Johnson’s derivative claim accrued on Feb. 9, 2014 – the same date as Mrs. Johnson’s negligence claim. As more than two years have passed, Mr. Johnson’s claim is barred. We will therefore dismiss with prejudice Mr. Johnson’s loss of consortium claim in Count III, with respect to the United States only,” Dalzell said.

“We will deny the United States’s motion to dismiss Count II because the complaint contains sufficient factual matter, accepted as true, to plausibly state a claim for relief against the United States with respect to Mrs. Johnson’s slip and fall,” Dalzell concluded. “But, we will grant the motion with respect to Mr. Johnson’s loss of consortium claim because he failed to exhaust his administrative remedies and his claim is thus barred.”

The plaintiffs are represented by Robert N. Braker and Matthew A. Grubman of Saltz Mongeluzzi Barrett & Bendesky, in Philadelphia.

The defendants are represented by Marc J. Syken of Bodell Bove and Viveca D. Parker of the U.S. Attorney’s Office, also both in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-00254

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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