Feis v. United StatesFeis v. United States
If the district court‘s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder‘s choice between them cannot be clearly erroneous.
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Our review of the record reveals that, while the evidence before the district court could have been weighed differently, the district court‘s account of the evidence was plausible. See id. We cannot conclude, therefore, that the district court‘s factual findings were clearly erroneous.
Finally, Appellants argue that the district court abused its discretion in denying reimbursement for private investigator costs. The only basis for Appellants’ assertion that they are entitled to this reimbursement is that it is recoverable as part of an award of attorneys’ fees. Because the district court did not abuse its discretion in declining to award attorneys’ fees, Appellants’ argument fails.
We have considered Appellants’ remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
Susan R. Nudelman, Dix Hills, NY, for Plaintiff-Appellant.
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, NY, for Defendant-Appellee.
PRESENT: RALPH K. WINTER, DENNY CHIN and CHRISTOPHER F. DRONEY, Circuit Judges.
SUMMARY ORDER
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“),
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 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
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
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. 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
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 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
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., 210 A.D.2d 280, 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 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, 501 N.Y.S.2d 646, 492 N.E.2d 774 (1986)); Lewis v. Metro. Transp. Auth., 99 A.D.2d 246, 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.