Ligus v. USA

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
TAMI LIGUS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
Case No. 3:18-cv-000187-TMB
ORDER ON PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY
JUDGMENT (DKT. 23)
I. 	INTRODUCTION
The matter comes before the Court on Plaintiff Tami Ligus’ Motion and Memorandum for
Partial Summary Judgment (the “Motion”) pursuant to Fed. R. Civ. P. 56(a).1 Ms. Ligus filed suit
against the United States for damages under 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671, et seq.,
the Federal Torts Claims Act (“FTCA”).2 Ms. Ligus alleges that she suffered bodily injury as a
result of the United States’ negligence.3 Now, in her Motion, Ms. Ligus requests the Court grant
partial summary judgment as to certain facts that she argues are undisputed.4 Although the United
States concedes that certain facts listed in Ms. Ligus’ Motion are undisputed, it nevertheless
1 Dkt. 23 (Motion).
2 Dkt. 1 (Complaint).
3 Id. at 3–5.
4 Dkt. 23 at 2.
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opposes the Motion.5 The matter has been fully briefed and is now ripe for resolution.6 For the
reasons discussed below, Ms. Ligus’ Motion at docket 23 is GRANTED.
II. 	BACKGROUND
This case arises out of a slip and fall in a Burger King on Joint Base Elmendorf-Richardson
(“JBER”) in Anchorage, Alaska.7 The record is largely undisputed and is summarized below.
On or about January 25, 2018, Ms. Ligus—a 96-year-old woman—was walking into the
JBER Burger King with her son, Dr. Thomas Ligus.8 After entering the vestibule of the JBER
Burger King, Ms. Ligus slipped and fell.9 Dr. Ligus requested the JBER Burger King staff to call
the paramedics.10 The paramedics transported Ms. Ligus to the emergency room on JBER.11 At
the hospital, a CT scan of Ms. Ligus’ pelvis showed right inferior and superior pubic rami fractures
and a comminuted distal third clavicle fracture.12 On August 15, 2018, Ms. Ligus filed her
Complaint against the United States.13
5 Dkt. 24 at 1–6 (Response).
6 Dkts. 23, 24, 25 (Reply).
7 Dkt. 1 at 3.
8 Dkts. 23-1 (Ballard Report); 23-2 at 4–5 (Ligus Deposition).
9 Dkt. 23-2 at 5–6.
10 Id. at 7–8.
11 Id.
12 Dkt. 23-3 at 1–2 (JBER ER Medical Records).
13 Dkt. 1.
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After Ms. Ligus filed her Complaint, she submitted to an examination by the United States’
medical evaluator, Dr. John Ballard, M.D.14 Dr. Ballard diagnosed Ms. Ligus with a right
comminuted distal third clavicle fracture, right inferior and superior pubic rami fractures,
lumbosacral strain, thoracic kyphosis, and neck pain.15 In his opinion, Ms. Ligus’ injuries were
caused by a slip and fall.16 Dr. Ballard also opined that the medical treatment Ms. Ligus received,
“including the emergency room, diagnostic studies and her physical therapy,” was reasonable and
appropriate.17
III. 	LEGAL STANDARD
Summary judgment is appropriate where, viewing the evidence and drawing all reasonable
inferences in the light most favorable to the nonmoving party,18 “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”19 Material facts are those which might affect the outcome of the case.20 A genuine issue of
material fact exists “if the evidence is such that a reasonable jury could return a verdict for the
14 Dkt. 23-1
15 Dkt. 23-1 at 6.
16 Id.
17 Id.
18 Scott v. Harris, 550 U.S. 372, 378 (2007).
19 Fed. R. Civ. P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986); Jensinger
v. Nev. F. Credit Union, 24 F.3d 1127, 1130–31 (9th Cir. 1994).
20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”).
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nonmoving party.”21 “There is no genuine issue of fact if, on the record taken as a whole, a rational
trier of fact could not find in favor of the party opposing the motion.”22 A movant’s burden may
be met by “‘showing’—that is, pointing out to the district court—that there is an absence of
evidence to support the nonmoving party’s case.”23
Once a movant has met its initial burden, Rule 56(e) requires the nonmoving party to go
beyond the pleadings and identify facts which show a genuine issue for trial.24 “[W]hen
simultaneous cross-motions for summary judgment on the same claim are before the court, the
court must consider the appropriate evidentiary material identified and submitted in support of
both motions, and in opposition to both motions, before ruling on each of them.”25 Finally,
“[w]here . . . the case turns on a mixed question of fact and law and the only disputes relate to the
legal significance of undisputed facts, the controversy is a question of law suitable for disposition
on summary judgment.”26
21 Id. at 248.
22 Mills v. Wood, No. 4:10-CV-00033-RRB, 2015 WL 2100849, at *1 (D. Alaska May 6, 2015),
aff’d in part, 726 F. App’x 631 (9th Cir. 2018) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)).
23 Celotex, 477 U.S. at 325.
24 Id. at 323–24.
25 Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001).
26 Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1262 (9th Cir. 2016) (quoting Wash. Mut.
Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011)).
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IV. 	DISCUSSION
Ms. Ligus filed her Motion on December 20, 2019.27 Ms. Ligus’ Motion requests the Court
find that there is no genuine dispute of material fact as to the following facts:
1. 	“The plaintiff incurred a comminuted distal third clavicle fracture, right inferior and
superior pubic rami fractures, lumbosacral strain, thoracic kyphosis, and neck pain as
a result of her slip and fall.”28
2. 	“As 	a 	direct 	result 	of 	these 	injuries 	the 	plaintiff 	underwent 	medical 	care,
hospitalization, follow-up medical visits, which were reasonable and appropriate.”29
3. 	“As a result of this injury and the subsequent care received the plaintiff is entitled to an
award of non-economic damages and economic damage related to these injuries.”30
In response, the United States does not dispute Ms. Ligus’ alleged injuries, that those
injuries are consistent with a slip and fall, or that the subsequent medical care she received was
reasonable and appropriate.31 However, the United States contends that these facts do not establish
liability.32 Additionally, it argues that a finding as to what damages plaintiff may or may not be
entitled to is premature at this stage.33
27 Dkt. 23.
28 Id. at 6.
29 Id.
30 Id.
31 Dkt. 24 at 6.
32 Id.
33 Id. at 3‒4.
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A. 	Ms. Ligus Is Entitled to Summary Judgment as to the Extent of Her Injuries that
Resulted from the Slip and Fall.
Ms. Ligus has established that there is no genuine dispute of material fact as to the scope
and cause of her injuries. At the hospital, Ms. Ligus was initially diagnosed with right inferior and
superior pubic rami fractures and a comminuted distal third clavicle fracture.34 Later, the
government’s expert, Dr. Ballard, diagnosed Ms. Ligus with right inferior and superior pubic rami
fractures, right comminuted distal third clavicle fracture, lumbosacral strain, thoracic kyphosis,
and neck pain.35 Dr. Ballard attributed Ms. Ligus’ injuries to a slip and fall.36 The United States
does not provide any evidence to challenge these two consistent diagnoses nor Dr. Ballard’s
conclusion that the injuries resulted from a slip and fall. In fact, the United States concedes these
facts.37 Therefore, there is no genuine dispute of material fact Ms. Ligus is entitled to summary
judgment as to the extent of her injuries that resulted from her slip and fall.
Ms. Ligus has also established that there is no genuine dispute of material fact as to the
quality of the medical care she received following her injuries. Dr. Ballard reported that the
medical treatment Ms. Ligus received, “including the emergency room, diagnostic studies and her
physical therapy” was reasonable and appropriate.38 Again, the United concedes this fact.39
34 Dkt. 23-3 at 1–2.
35 Dkt. 23-1 at 6.
36 Id.
37 Dkt. 24 at 3.
38 Dkt. 23-1 at 6.
39 Dkt. 24 at 3.
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Therefore, Ms. Ligus is entitled to summary judgment as to the quality of her subsequent medical
care.
Accordingly, Ms. Ligus’ Motion is GRANTED as to the extent of her injuries that resulted
from her slip and fall and the “reasonable and appropriate” medical care she received to treat those
injuries.
B. 	Ms. Ligus Is Entitled to Summary Judgment as to the Appropriateness of Non-
Economic Damages Should Liability Be Established
Ms. Ligus requests that this Court grant summary judgment that, assuming the United
States was negligent, “[Ms. Ligus] is entitled to an award of non-economic damages and economic
damage related to [her] injuries.”40 Ms. Ligus relies on Grant v. Stoyer41 for the proposition that
the mere fact Ms. Ligus was injured and received medical care entitles her to some amount of non-
economic damages.42 The United States argues that a ruling on the type or amount of money
damages is premature because Ms. Ligus has not yet proven the United States was negligent.43
It is undisputed that, as a result of her slip and fall, Ms. Ligus suffered physical injuries for
which she required and received medical treatment.44 Under Grant, assuming her injuries resulted
40 Dkt. 23 at 6.
41 10 P.3d 594 (Alaska 2000) (holding where plaintiff proved that she suffered physical injuries
and pain as a result of defendant’s negligence, the jury had discretion to determine nature and
extent of pain and suffering caused by accident, could not refuse to award any noneconomic
damages).
42 Dkt. 23 at 7.
43 Dkt. 24 at 5.
44 Dkts. 23-1 at 2, 23-2 at 8, 23-3.
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from the United States’ negligence, she would be entitled to some economic and non-economic
damages.45
Nothing prevents courts from making rulings as related to the type or amount of damages
at stake prior to establishing liability. Although, judgment on damages ordinarily follows a finding
of liability, courts have on occasion ordered bifurcated trials proceed in reverse—whereby, the
trial for establishing the amount of damages precedes the trial for establishing tort liability.46
The Court agrees with the United States in that Ms. Ligus’ request falls outside the usual
sequence of issues. In almost every case, the question of damages will be put off until liability is
established. However, damages are part-and-parcel of her negligence claim.47 The United States
has not identified any caselaw which restricts a court to only ruling on the elements of Ms. Ligus’
claim in the order they might appear in hornbook law: duty, breach, causation, then harm. The
United States is correct that Ms. Ligus has yet to prove that her injuries resulted from the United
States’ negligence, and that if she fails, the question of damages becomes moot. However, because
Ms. Ligus’ claim fails without all four elements, the sequence of proof is inconsequential.
Therefore, proof of harm may established out of the ordinary order and a finding that damages is
appropriate may precede the determination of negligence.”
45 10 P.3d 594.
46 Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 964 (10th Cir. 1993) (“In fact, courts have
commonly used reverse bifurcation in asbestos cases.”) (citing Borman v. Raymark Indus., 960
F.2d 327, 329 (3d Cir. 1992); In re Joint E. & S. Dists. Asbestos Litig., 798 F.Supp. 940, 944 (E.
& S.D.N.Y.1992), rev’d, 995 F.2d 343 (2d Cir.1993) and rev’d sub nom. Malcolm v. National
Gypsum Co., 995 F.2d 346 (2d Cir. 1993); Hughes v. Owens–Corning Fiberglas Corp., No. 88–
3374, 1991 WL 242185 (E.D. La. Nov. 5, 1991). Bifurcation is committed to the discretion of
district courts by Fed. R. Civ. P. 42(b). Hirst v. Gertzen, 676 F.2d 1252, 1261 (9th Cir. 1982).
47 Dapo v. State, 454 P.3d 171, 178 (Alaska 2019) (“To establish negligence, a party must show
‘(1) a duty of care; (2) breach of the duty; (3) causation; and (4) harm.’”).
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Accordingly, Ms. Ligus’ Motion is GRANTED as to the fact that, assuming she proves
the United States was negligent, that her injuries would entitle her to non-economic and economic
damages.
V. 	CONCLUSION
For the foregoing reasons, Ms. Ligus’ Motion at docket 23 is GRANTED. The Court
HEREBY FINDS as follows:
1. 	Ms. Ligus incurred a comminuted distal third clavicle fracture, right inferior and
superior pubic rami fractures, lumbosacral strain, thoracic kyphosis, and neck pain as
a result of her slip and fall.
2. 	As 	a 	direct 	result 	of 	these 	injuries 	the 	Ms. 	Ligus 	underwent 	medical 	care,
hospitalization, follow-up medical visits, which were reasonable and appropriate.
3. 	Assuming Ms. Ligus proves the United States was negligent, Ms. Ligus is entitled to
an award of non-economic damages and economic damage for the injuries she received
as a result of this slip and fall.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 13th day of February, 2020.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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