Feis v. United States

11-1259-cv
Feis v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12th day of June, two thousand twelve.
PRESENT:
RALPH K. WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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LOUIS FEIS,
Plaintiff-Appellant,
-v.- 11-1259-cv
UNITED STATES OF AMERICA,
Defendant-Appellee.
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FOR PLAINTIFF-APPELLANT: Susan R. Nudelman, Dix Hills, New
York.
FOR DEFENDANT-APPELLEE: Varuni Nelson, Diane C. Leonardo
Beckmann, Assistant United States
Attorneys, for Loretta E. Lynch,
United States Attorney for the
Eastern District of New York,
Central Islip, New York.
Appeal from a judgment of the United States District
Court for the Eastern District of New York (Seybert, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Louis Feis appeals from the
district court's February 14, 2011 judgment, granting summary
judgment in favor of defendant-appellee United States of America.
The district court entered judgment pursuant to its memorandum
and order dated February 9, 2011.
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
Feis filed this action under the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, in July 2007. He
alleged that he slipped and fell on a wet floor at the Veterans
Affairs ("VA") Hospital in Northport, New York on May 12, 2005
and, as a result, sustained permanent injuries. Feis claimed
that the wet floor was attributable to the VA Hospital's
negligence. Feis testified at his deposition that an
unidentified individual, whom he had previously seen cleaning the
floors on prior visits to the hospital, approached him in the
emergency room after his fall and said, "I'm sorry I left water
on the floor. The squeegee didn't pick it all up." (Ex. A to
Def.'s 56.1 Statement at 42-44 ("Feis Dep.")).
On September 10, 2009, the district court granted the
government's motion for summary judgment, concluding that Feis
had not shown that the VA Hospital created the slippery condition
or that it had requisite notice of the condition. It deemed
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Feis's account of the individual's statement in the emergency
room inadmissible, finding that there was insufficient
circumstantial evidence to establish that the individual was a VA
employee for the purpose of admitting the statement under Federal
Rule of Evidence 801(d)(2)(D) ("A statement . . . is not hearsay
. . . [if it] is offered against an opposing party and . . . was
made by the party's agent or employee on a matter within the
scope of that relationship and while it existed . . . .").
On October 1, 2010, we vacated the district court's
judgment on the basis that it failed to consider the individual's
statement itself in determining whether an adequate foundation
under Rule 801(d)(2)(D) had been established. See Feis v. United
States, 394 F. App'x 797 (2d Cir. 2010) (summary order). On
remand, the district court found that the statement, coupled with
Feis's inability to recall other identifying information about
the individual and the lack of any other evidence as to the
individual's identity or alleged employment, failed to establish
that the individual was an employee of the VA Hospital. It
therefore concluded again that Feis had not laid the proper
foundation on which to admit the statement under Rule
801(d)(2)(D) and granted summary judgment in favor of the
government.
Our review of a grant of summary judgment presenting
evidentiary issues involves two levels of inquiry. LaSalle Bank
Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 211 (2d
Cir. 2005) (citing Raskin v. Wyatt Co., 125 F.3d 55, 67 (2d Cir.
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1997)). First, we review the district court's evidentiary
rulings for abuse of discretion and reverse only for "manifest
error." Id. at 205-06, 211; see also Sage Realty Corp. v. Ins.
Co. of N. Am., 34 F.3d 124, 128 (2d Cir. 1994). Second, with the
evidentiary record defined, we review the district court's grant
of summary judgment de novo. LaSalle Bank, 424 F.3d at 211
(citing Raskin, 125 F.3d at 67). For summary judgment to be
granted, there must be "'no genuine issue as to any material
fact'" and the movant must be "'entitled to judgment as a matter
of law.'" Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.
2010) (quoting Fed. R. Civ. P. 56(a)). In deciding a motion for
summary judgment, the court must resolve ambiguities and draw
reasonable inferences against the movant and review factual
determinations "in the light most favorable to the non-moving
party." Id.We have conducted an independent review of the record
in light of these principles and conclude that the district court
did not abuse its discretion in excluding the statement and that
the district court properly granted summary judgment in favor of
the government.
Recognizing the "wide latitude" we give district courts
in determining the admissibility of evidence, see Meloff v. N.Y.
Life Ins. Co., 240 F.3d 138, 148 (2d Cir. 2001) (citation and
internal quotation marks omitted), we cannot conclude that the
district court's evidentiary ruling here was outside the "range
of permissible decisions," see United States v. Miller, 626 F.3d
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682, 690 (2d Cir. 2010) (citation and internal quotation marks
omitted), or that it was "manifest error," see LaSalle Bank, 424
F.3d at 205-06. Indeed, we have previously affirmed the
exclusion of testimony offered under Rule 801(d)(2)(D) where, as
here, there was little evidence to establish that the declarant
was an agent or employee of the opposing party. See, e.g.,
Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 128-29 (2d Cir.
2005). See also Fed. R. Evid. 801(d)(2) ("The statement . . .
does not by itself establish . . . the existence or scope of the
[agent or employee] relationship under (D) . . . .").
Without the excluded statement of the unidentified
individual, Feis presented insufficient evidence to raise a
genuine issue of fact as to whether the VA Hospital created the
slippery condition or had actual or constructive notice of the
slippery condition. See Bykofsky v. Waldbaum's Supermarkets,
Inc., 619 N.Y.S.2d 760, 761 (2d Dep't 1994) ("[F]or a plaintiff
in a 'slip and fall' case to establish a prima facie case of
negligence, the plaintiff must demonstrate that the defendant
created the condition which caused the accident, or that the
defendant had actual or constructive notice of the condition.").
Feis's only other assertion -- mainly, that he had previously
seen streaks of water on the floor after the squeegee machine had
been used and that he had previously complained about water on
the floor -- is not enough to support the inference that the wet
floor on the day of his fall was caused by the VA Hospital or
that the VA Hospital was, or should have been, aware of it. See
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id. ("To constitute constructive notice, 'a defect must be
visible and apparent and it must exist for a sufficient length of
time prior to the accident to permit defendant's employees to
discover and remedy it.'" (quoting Gordon v. Am. Museum of
Natural History, 67 N.Y.2d 836, 837 (1986)); Lewis v. Metro.
Transp. Auth., 472 N.Y.S.2d 368, 372 (1st Dep't 1984) (presence
of slippery condition alone not enough to establish cause of
action).
We have considered Feis's remaining arguments on appeal
and find them to be without merit. Accordingly, the judgment of
the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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