Wilkins v. United States ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DIANNA WILKINS,
Plaintiff-Appellant,
v. No. 95-2954
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CA-93-161-5-BR)
Argued: March 5, 1997
Decided: April 9, 1997
Before WILKINS, NIEMEYER, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Dolores Jones Faison, Jacksonville, North Carolina, for
Appellant. Eileen Coffey Moore, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie
Cole, United States Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Dianna Wilkins brought this premises liability action against the
United States, seeking to recover for injuries that occurred when she
stepped into a hole on property maintained by the United States Post
Office in Sharpsburg, North Carolina. See 28 U.S.C.A. § 2674 (West
1994). On appeal, Wilkins contends that the district court erred in
granting judgment as a matter of law to the United States on the basis
that she failed to establish negligence. We affirm.
I.
On June 17, 1990, Wilkins traveled with James Evans to the
Sharpsburg post office to mail a letter. A drop box was positioned
adjacent to the post office driveway with a chute protruding over the
driveway. After Evans parked his automobile, Wilkins walked across
a grassy area not normally frequented by postal customers. While
crossing the grassy area, she stepped in a hole approximately ten
inches in diameter and four feet deep.
Shortly after construction of the post office in June 1987, a tempo-
rary service pole was removed from the general vicinity of the drop
box by an entity that was not affiliated with the United States. Wil-
kins asserted that the removal of the utility pole created the hole.
However, Ronald Warren, the Sharpsburg Postmaster since 1976, did
not recall ever seeing a utility pole on the premises. Furthermore, he
testified that he was unaware of the hole prior to Wilkins' accident
even though he regularly surveyed the property for maintenance prob-
lems or hazards. In fact, Warren walked on a daily basis in the area
where Wilkins fell and had never seen the hole. Further, grounds-
keepers who mowed the grass on a weekly basis had never reported
the existence of a hole to Warren.
2
Wilkins initiated this action, alleging that the United States negli-
gently failed to maintain the premises in a reasonably safe condition.
Following a bench trial, the district court ruled that Wilkins failed to
carry her burden of proof on the issue of negligence and granted judg-
ment to the United States. See Fed. R. Civ. P. 52(c). The district court
found that the United States discharged its duty to keep the premises
in a reasonably safe condition since Warren regularly walked the
grounds and conducted informal visual inspections of the property. It
was not unreasonable under the circumstances, the district court con-
cluded, that Warren had not discovered the hole. As a result, the dis-
trict court determined that the United States was not negligent in
failing to repair the condition or warn Wilkins of its existence. This
appeal followed.
II.
North Carolina substantive law governs the resolution of Wilkins'
claim. See 28 U.S.C.A. § 2674; Gupton v. United States, 799 F.2d
941, 942 (4th Cir. 1986). Under North Carolina law, a property owner
"has a duty to exercise ordinary care to keep in a reasonably safe con-
dition ... its premises ... and to give warning of hidden perils or unsafe
conditions insofar as they can be ascertained by reasonable inspection
and supervision." Roumillat v. Simplistic Enters., Inc., 414 S.E.2d
339, 342 (N.C. 1992) (internal quotation marks omitted). If the peril-
ous condition can be attributed to a third party, the plaintiff must
demonstrate that the hazard "existed for such a length of time that
defendant knew or by the exercise of reasonable care should have
known of its existence, in time to have removed the danger or [to
have] given proper warning of its presence." Id. at 343 (internal quo-
tation marks omitted; alteration in original).
We review the factual determinations of the district court for clear
error. See Carter v. Ball, 33 F.3d 450, 457 (4th Cir. 1994); Fed. R.
Civ. P. 52(a). There is no evidence in the record that the United States
created the hole or had actual notice of its existence. The sole issue,
therefore, is whether reasonable inspection and supervision of the
premises should have revealed the existence of the hole. Having had
the benefit of oral argument and having carefully reviewed the record
and the parties' briefs, we conclude that the district court did not
clearly err in finding that the United States made reasonable efforts
3
to discover hidden and dangerous conditions on the premises and that
the failure to find the hole was not negligent.
III.
Accordingly, we affirm the judgment of the district court.
AFFIRMED
4