     17-102-cv
     Estrella-Jones 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.
 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 14th day of December, two thousand seventeen.
 4
 5   PRESENT:             JOSÉ A. CABRANES,
 6                        DEBRA ANN LIVINGSTON,
 7                        SUSAN L. CARNEY,
 8                               Circuit Judges.
 9
10
11   BRENDA ESTRELLA-JONES,
12
13                                     Plaintiff-Appellant,                  17-102-cv
14
15                                     v.
16
17   UNITED STATES OF AMERICA,
18
19                                     Defendant-Appellee.
20
21
22   FOR PLAINTIFF-APPELLANT:                                     SCOTT N. SINGER, Danielle M. Doman (on
23                                                                the brief), Sacks & Sacks, LLP, New York,
24                                                                New York
25
26   FOR DEFENDANT-APPELLEE:                                      JAMES R. CHO, Assistant United States
27                                                                Attorneys, for Bridget M. Rohde, Acting
28                                                                United States Attorney for Eastern District
29                                                                of New York
30
31          Appeal from a judgment of the United States District Court for the Eastern District of New
32   York (Carol Bagley Amon, Judge).

33          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
34   ADJUDGED, AND DECREED that the December 15, 2016 judgment of the District Court be
35   and hereby is AFFIRMED.

                                                              1
 1            Plaintiff-Appellant Brenda Estrella-Jones (“Estrella-Jones”) appeals from a memorandum and
 2   order (“decision”) of the District Court setting forth findings of fact and conclusions of law reached
 3   after a two-day bench trial. She seeks reversal and remand to the District Court for a new trial. We
 4   assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
 5   issues on appeal, which we briefly recount below.

 6           Estrella-Jones suffered a knee injury after tripping in the parking lot of a Veterans
 7   Administration (“VA”) hospital in Brooklyn, New York, on August 9, 2011. As she exited the hospital
 8   at around 7:30 pm, she walked on a concrete sidewalk towards the parking lot adjacent to the main
 9   entrance. As she stepped from the curb onto the parking lot, with her right foot on the ground, she
10   tripped and fell forward. Looking back, she noticed that the pavement where she fell was eroded and
11   worn. Estrella-Jones brought this action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§
12   1346(b), 2671-80, alleging that the United States negligently failed to maintain and repair the asphalt in
13   the area in which she fell, and that this alleged negligence proximately caused her fall and injuries.
14   Following a bench trial, the District Court concluded that Estrella-Jones failed to meet her burden of
15   demonstrating by a preponderance of the evidence that the United States was liable for her injury.

16             On appeal from a district court’s decision following a bench trial, we review findings of fact
17   for clear error and conclusions of law de novo. See Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d
18   Cir. 2010). Liability under the FTCA is determined by the law of the place where the act or omission
19   occurred; thus, it is undisputed that New York law governs in this case. 28 U.S.C. § 1346(b)(1). To
20   establish that the United States breached its duty of care, Estrella-Jones must show by a
21   preponderance of the evidence that a dangerous condition existed and that the United States either
22   created or had actual or constructive knowledge of the condition but failed to correct it within a
23   reasonable time of acquiring that knowledge. See, e.g., Putnam v. Stout, 38 N.Y.2d 607, 612 (1976); Cisse
24   v. S.F.J. Realty Corp., 256 A.D.2d 257, 258 (1st Dep’t 1998).

25           Estrella-Jones contends that the District Court erroneously concluded that the defect in the
26   parking lot’s asphalt surface was trivial, and thus not a dangerous or defective condition such that the
27   United States could be liable for her injuries. In determining whether a dangerous condition existed,
28   courts applying New York law do not use a mechanistic test that looks solely at the minimum height
29   or depth of a defect. Instead, they examine “the width, depth, elevation, irregularity and appearance of
30   the defect along with the time, place and circumstance of the injury.” Trincere v. Cty. of Suffolk, 90
31   N.Y.2d 976, 977 (1997) (internal quotation marks omitted). Upon review of the record, we conclude
32   that the District Court properly took all of these factors into account in reaching its determination and
33   did not clearly err in determining that the parking lot defect was trivial. In view of this disposition, we
34   need not reach Estrella-Jones’ remaining argument regarding constructive knowledge.

35                                               CONCLUSION

36            For the foregoing reasons, we AFFIRM the December 15, 2016 judgment of the District
37   Court.

38                                                            FOR THE COURT:
39                                                            Catherine O’Hagan Wolfe, Clerk




                                                          2
