                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-25-2006

Bosco v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4146




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 04-4146
                                      __________

                                   JOSEPH BOSCO;
                                    JANET BOSCO,
                                            Appellants
                                         v.

                         UNITED STATES OF AMERICA;
                      MOTBY MILITARY OCEAN TERMINAL;
                        ABC COMPANY, a fictitious entity
                                 __________

              APPEAL FROM THE UNITED STATE DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                              D.C. Civil No. 01-cv-1684
                 District Judge: The Honorable Harold A. Ackerman
                                     _________

                       Submitted under Third Circuit LAR 34.1(a)
                                  November 16, 2005
                                      _________

     Before: BARRY and AMBRO, Circuit Judges, and POLLAK,* District Judge.

                                 Filed: January 24, 2006
                                        ________

                                        OPINION
                                        ________



      *
       Honorable Louis H. Pollak, District Judge for the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.

                                            1
POLLAK, District Judge:

       Joseph Bosco (“Bosco”), the plaintiff in a personal injury action brought against

the United States (the “government”) under the Federal Tort Claims Act (“FTCA”),

appeals two orders issued by the District Court in connection with that action, asserting

numerous points of error in the District Court’s judgments. For the reasons set forth

below, we will affirm.




                                              I.

       Because we write primarily for the parties, we recite only those facts and aspects

of the procedural history that are of particular pertinence to our analysis.

       In January 1996, Bosco was working at the Marine Ocean Terminal in Bayonne,

New Jersey (“MOTBY”) as a pipe fitter apprentice employed by an independent

contractor at MOTBY. At about 1:30 or 1:45 p.m. on January 19, 1996, Bosco walked

quickly from a construction trailer towards a MOTBY building – Building 72 – located

on the same street as the trailer. It was raining heavily at the time. Bosco walked in the

street for some distance and then decided to cross the sidewalk, between two cars parked

on the sidewalk, in order to reach the rear entrance of Building 72. A puddle had

accumulated in the street, near the curb, at Bosco’s chosen crossing point. Before

reaching the sidewalk, Bosco stepped into the puddle, his foot became caught in a storm



                                              2
sewer grate at the bottom of the puddle, and he fell and injured his ankle.

       Bosco received medical treatment for his ankle injury, and, several months after

the accident, he began to complain of back pain. He eventually underwent extensive

treatment for a lumbar condition. Bosco filed an administrative claim with the

Department of the Army, asserting the government’s negligent maintenance of its

property caused his ankle and back injuries. Bosco claimed $250,000 in damages in his

administrative claim. The Department of the Army denied Bosco’s administrative claim,

leading to this litigation. As relevant to this appeal, Bosco’s lawsuit accused the

government of two “species” of negligence: 1) failure to maintain and enforce a policy

that vehicles be parked only in designated spaces, and 2) failure to properly maintain the

sewer system such that it would not back up and create puddles around sewer grates1 .

       By order dated November 10, 2003, the District Court denied Bosco’s request to

amend his administrative claim by increasing his damages demand, noting this request

had earlier been denied by a magistrate judge, and the magistrate judge’s order had not

been appealed. In the same order, the District Court also dismissed Bosco’s claim that the

government was negligent in failing to maintain and enforce a parking policy. The

District Court found this theory to be nothing more than a claim that the government

failed to adhere to one of its own policies, which is not actionable under the FTCA


       1
         Bosco also claimed the government was negligent in failing to have a policy mandating
routine maintenance of its buildings and grounds and in failing to have a policy requiring
superior officers to keep records of accidents. These claims did not survive summary judgment,
and Bosco’s brief in this appeal does not mention them. We therefore need not address them.

                                               3
without an independent violation of state law. The only negligence theory that survived

the November 10 order was the theory that the government was negligent in failing to

properly maintain the sewer system.

       The court conducted a bench trial of this claim. Bosco’s expert opined at trial that

the only explanation for the puddle surrounding the grate on which Bosco fell was a

blockage in the sewer system, but Bosco produced no direct evidence of a blockage.

Bosco contended the government was negligent in failing to remove the supposed

blockage. The government’s expert testified that a combination of several factors over

which the government had no control – very heavy rain, unusually high tides, and

significant snowmelt – likely led to formation of the puddle in which Bosco fell.

       In its Findings of Fact & Conclusions of Law dated June 29, 2004, the District

Court found for the government. Among the District Court’s conclusions were that

Bosco failed to prove any negligence on the part of the government in its maintenance of

the storm sewer system, as his theory that there was a blockage in the storm sewer system

was unsupported by direct evidence and contradicted by credible expert testimony. The

District Court discounted Bosco’s expert’s testimony on this point, finding the expert’s

qualifications underwhelming and his analysis incomplete; in contrast, the District Court

considered the government’s expert well-qualified and found his analysis thorough and

persuasive. The District Court also found Bosco’s trial testimony less than credible,

pointing to a pattern of evasiveness and inconsistencies in his testimony.



                                             4
       On appeal, Bosco contends the District Court: 1) erred as a matter of law by

dismissing his claim of negligence based on failure to enforce a parking policy; 2)

perpetrated a “gross miscarriage of justice” by finding no negligence by the government

in its maintenance of the storm sewer; 3) committed clear legal error by failing to treat

Bosco’s back injury as an aggravation of prior injury; 4) exhibited unfair bias against

Bosco; and 5) erred in refusing to allow Bosco to amend his administrative claim 2 .




                                                 II.

       The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1346(b),

and this Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

       Our review of the District Court’s conclusions of law, including determination of

subject matter jurisdiction, is plenary. North Penn Gas Co. v. Corning Natural Gas

Corp., 897 F.2d 687, 688 (3d Cir. 1990); Dolan v. U.S. Postal Serv., 377 F.3d 285, 286

(3d Cir. 2004). Our review of the District Court’s factual determinations is deferential;

we may set aside District Court findings only if clearly erroneous. Anderson v. City of

Bessemer City, 470 U.S. 564, 572 (1985); Henglein v. Colt Indus. Operating Corp., 260



       2
          Bosco’s brief also complains that the District Court abused its discretion in requiring the
parties to obtain, with resultant cost to the parties, a transcript of the trial proceedings for
purposes of gearing their proposed findings of fact and conclusions of law to the transcript. This
point requires only very brief comment in the margin. The role of the Court of Appeals is to
review for reversible error, not to micro-manage the District Courts. Because the requirement
complained of could not possibly have affected the outcome of the case, there is no action for us
to take on this matter, and we will not address it further.

                                                 5
F.3d 201, 207 (3d Cir. 2001).




                                                 III.

       Bosco’s first contention on appeal is that the District Court erred as a matter of law

when it dismissed Bosco’s claim that the government was negligent in failing to enforce a

parking policy that would keep cars off the sidewalk near which Bosco fell3 . As both

parties evidently recognize, the FTCA permits a federal court to exercise jurisdiction over

a tort claim against the government only “under circumstances where the United States, if

a private person, would be liable to the claimant in accordance with the law of the place

where the act or omission occurred.” 18 U.S.C. § 1346(b)(1). Therefore, a federal court

does not have jurisdiction over a claim against the government arising from the

government’s failure to follow its own regulation or policy, as “the law of the place”

refers to state law, not federal law. See, e.g., Johnson v. Sawyer, 47 F.3d 716 (5th Cir.

1995). Rather, in order to sustain jurisdiction, an FTCA claimant must show that the

government act or omission, if committed by a private person, would breach an

independent state law duty. Id.

       Bosco cites a line of New Jersey cases for the proposition that commercial



       3
          Bosco describes the District Court’s ruling as a grant of partial summary judgment and
devotes considerable space in his brief to discussion of summary judgment standards. The order
in which the District Court dismissed Bosco’s negligence claim based on failure to enforce a
parking policy did grant summary judgment to the government on other negligence claims, but it
is clear that this particular negligence claim was dismissed for lack of subject matter jurisdiction.

                                                  6
landowners in New Jersey are required to maintain sidewalks abutting their property in a

safe condition. See, e.g., Monaco v. Hartz Mountain Corp., 840 A.2d 822 (N.J. 2004);

Stewart v. 104 Wallace Street, Inc., 432 A.2d 881 (N.J. 1981); Warrington v. Bird, 499

A.2d 1026 (N.J. Super. App. Div. 1985). Bosco contends the government breached this

state law duty – and not just its own policy – by allowing cars to park on the sidewalk,

and therefore it was error to dismiss his parking policy negligence claim. We disagree.

Bosco’s dismissed claim cannot be fairly characterized as a claim that the government

failed to maintain the sidewalk in a safe condition. Rather, Bosco’s claim that the

government allowed cars to be parked on the sidewalk amounts to an assertion that the

government failed to provide unimpeded access to the sidewalk. Bosco cites no New

Jersey case, and we are aware of none, that holds a landowner can be held liable in tort

for failing to provide the public or invitees with unimpeded access to a sidewalk.

          Because Bosco pleaded no facts that could support a finding of negligence under

New Jersey law, his dismissed claim amounted to nothing more than that the government

failed to enforce its own policy. As previously discussed, the federal courts cannot

exercise jurisdiction over such a claim. We therefore find no error in the District Court’s

dismissal of Bosco’s claim of negligence arising out of failure to enforce a parking

policy.




                                             IV.



                                              7
       Bosco’s next assignment of error is that the District Court’s findings of fact and

conclusions of law subsequent to trial represent a “gross miscarriage of justice.” Bosco

contends the District Court’s understanding of the facts was grossly deficient and led to

conclusions that are clearly erroneous. As previously stated, we can review the District

Court’s factual findings only for clear error.

       As noted above, both Bosco and the government presented expert testimony

regarding the likely cause of puddle formation around the storm grate on which Bosco

fell. Bosco’s expert concluded that, because water always flows downhill absent an

obstruction, the puddle could only have formed as a result of a clog in the storm sewer

system. The government’s expert opined that other factors, including excessive rainfall,

unusually high tides, and substantial snowmelt, could, and likely did, lead to formation of

the puddle. Determining the cause of the puddle’s accumulation was crucial to

determining whether the government had been negligent – if the puddle resulted from a

clogged sewer system, the government may have been liable for negligent maintenance of

the system, but if the puddle was created by conditions over which the government had no

control, the government could not be found negligent. As the two parties’ expert analyses

reached conflicting conclusions on the critical point of what led to creation of the puddle,

the District Court had to choose one. The District Court chose the government expert’s

conclusions because it found that expert more qualified and considered his analysis more

thorough and persuasive.



                                                 8
       Having reviewed the relevant portions of the record, we find no error in the

District Court’s findings, let alone clear error. The District Court noted that the

government’s expert had extensive training in storm-water management and had written

articles on the subject. Bosco’s expert, on the other hand, had no relevant publications

and no relevant training within the past twenty years, gave inconsistent testimony, and

failed to recognize the relevance of various factors included in the government expert’s

analysis.

       Bosco correctly points out that the government expert’s analysis had limitations –

in particular, neither he nor any of the other government witnesses actually inspected the

storm sewer system for evidence of blockage. However, Bosco’s expert did not do so

either. Since neither expert had inspected the storm sewer system, all the experts could

do was analyze the data available to both of them and give their opinions as to what likely

caused a puddle to form around the grate on which Bosco fell. Because Bosco’s expert

was less qualified than the government’s expert, because he failed to properly credit the

relevant data that the government’s expert incorporated into his analysis, and because the

District Court, in a far better position to assess the credibility of witnesses than we, found

the government expert more credible than Bosco’s expert, we find no error in the District

Court’s acceptance of the government expert’s conclusions over those of Bosco’s expert.

       Bosco points to an additional piece of evidence that he contends is compelling and

was wrongfully discounted by the District Court – photographs of the accident scene,



                                              9
taken about a week after the accident, depicting a large accumulation of water around the

sewer grate on which Bosco fell. Bosco asserts these photographs are conclusive

evidence that the puddle existing at the time of his fall only grew larger over the next

several days, and thus the only appropriate conclusion is that there was a blockage in the

storm sewer system. We agree with the District Court that these photographs establish no

such thing. As the District Court noted, the foundation laid for admission of these

photographs as evidence was quite weak – it was not entirely clear who took the

photographs, there was some question about when they were taken, and the weather and

flooding conditions at the time of the photographs were different from those existing at

the time of Bosco’s accident. Most importantly, there was no evidence regarding the

status of the puddle in the days intervening between the time of the accident and the time

the photographs were taken. Indeed, Bosco’s expert conceded that the puddle existing at

the time of Bosco’s accident could have drained, and a new puddle could have formed for

whatever reason in the following week. Accordingly, we find no error in the District

Court’s view that the photographs lacked the probative force Bosco attributed to them.

       Finally, Bosco argues the District Court erred in refusing to find the government

negligent for creating a steep drop-off from the street pavement to the storm sewer grate

on which Bosco fell. It appears that the only evidence supporting the assertion that a

substantial drop-off existed are photographs showing the sewer grate three to four inches

below the pavement surface. We agree with the District Court that these photographs are



                                             10
very weak evidence of a drop-off or any unsafe condition of the pavement at the time of

Bosco’s accident, as the photographs were taken over six years after the accident. We

find no error in the District Court’s refusal to enter a finding of negligence based on such

evidence.




                                             V.

       Our disposition of Bosco’s second point of error makes it unnecessary for us to

address his third and fifth, which relate to Bosco’s claim of injury to his back. Because

we have upheld the District Court’s determination that Bosco failed to prove negligence

by the government, Bosco cannot recover any amount of damages for any injury,

including his back injury.

       The fourth point in appellant’s brief on appeal is captioned as follows:

           THE DISTRICT COURT’S TRIAL ERRORS
       SHOW AN UNFAIR BIAS AGAINST THIS PLAINTIFF

       Under this caption the brief spends six pages discussing the testimony of Dr. Jason

Walker, a vocational specialist who, on the government’s behalf, examined the plaintiff

and appeared as an expert witness. Much of Dr. Walker’s testimony focused on what Dr.

Walker perceived to be plaintiff’s lack of motivation to work. Supplementing the direct

and cross-examination conducted by counsel, the District Judge asked the witness a

number of questions. Appellant’s brief characterizes one question as a “loaded question,”

and then states that “[b]ased upon the district court’s further questions,” the witness

                                             11
“apparently [became] aware that the court was interested in loaded responses.”

       The propriety of a trial judge’s asking questions of a witness is beyond dispute.

When, as in the case at bar, the judge is conducting a bench trial, it is routine – indeed,

almost obligatory – for the judge to put questions clarifying pertinent matters that

counsels’ questions may not have fully illuminated. Counsel for plaintiff or counsel for

defendant – or, indeed, counsel for both – may find the judge’s questions unwelcome

when they probe weaknesses or test limits of contentions advanced by a litigant. But a

probing question does not betoken unneutrality.

       Counsel who drafted and signed appellant’s brief have seen fit to charge an able

and respected judge – a judge of long experience, demonstrated accomplishments, and

unwavering dedication to law and the judicial process – with “unfair bias” against a

litigant. The charge, finding no support in the record, is gravely unprofessional. To make

so wholly unwarranted a charge is not conduct befitting members of the bar of the Court

of Appeals or of the District Court – lawyers who are sworn officers of the court.




                                             VI.

       In conclusion, we find no error in the District Court’s dismissal of Bosco’s claim

of negligence based on failure to enforce a parking policy or in the District Court’s post-

trial finding of no negligence by the government. These holdings render moot Bosco’s

points regarding treatment of his back injury as an aggravation of prior injury and



                                              12
amendment of his administrative damages claim. We also find no merit whatsoever in

Bosco’s assertion of unfair bias by the District Judge. We will therefore affirm the

judgments of the District Court in all respects.




                                             13
