### The FTCA allows suits against the United States for "mone y 1 

### damage s . . . for injury or loss of property, or personal injur y

. . . caused by the negligent or wrongful act or omission of an y employee of the Government while acting within the scope of hi s office or employment, under ci rcumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place wher e the act or omission occurred." 28 U.S.C. § 1346(b). By consent of the parties, the case was tried before a feder al magis trate judge, see 28 U.S.C. § 636(c), on only the issues o f liability. No. 96-1111

Lewis A. Heller, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Nebraska. United States of America, * * [UNPUBLISHED] Appellee. *

Submitted: September 13, 1996 Filed: October 23, 1996

Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.

PER CURIAM.
Lewis A. Heller brought this action under the Federal Tort Clai ms Act (FTCA), 28 U.S.C. § 2671, after he sustained injuries from a fall on an ic e patch in front of a United States Pos t Office in Yutan, Nebraska. Heller 1 claimed that the Unit ed States was negligent in creating a condition that posed an unreasonable risk of harm, and in failing to inspect the premises , remove the ice, or warn him of the danger.

### 2 The law of the state in which the allegedly negligent acts o r omissions occurred governs the determination of negligence under the FTCA. See LeFond v. United States , 781 F.2d 153 (8th C ir. 1986). Under Nebraska law, a claim of negligence by a business invitee requires proof of th e following five elements: (1) the possessor defendant either created the condition, knew of the condition, or by the exercise of reasonable car e would have discovered the condition; (2) the defendant should have realize d the condition involved an unreasonable risk of h arm to a business invitee; (3) the defendant should have expected that a bu siness invitee such as the plaintiff either (a) would not discover or realize the danger, or (b) woul d fail to protect himself against the danger; (4) the defendant failed to us e reasonable care to protect the plaintiff invitee against the danger; and (5) the c ondition was a proximate cause of damage to the plaintiff

. Cloonan v. Food-4-Less of 30th & Weber, Inc. , 52 9 N.W.2d 759, 762-63 (Neb. 1995); Richardson v. Ames Ave. Corp. , 525 N.W.2d 212, 215-16 (Neb. 1995); Burns v. VFW , 438 N.W.2d 485, 493 (Neb. 1989).

The court held that Heller met his b urden of proof only with respect to the first element. The court concluded that the ice patch was too smal l to presen t an unreasonable risk of harm, that it was reasonable for th e defendant to expect a postal customer to see the ice and protect himself by avoiding it, and that the proximate cause of Heller's injury was his ow n failure to see and avoid the danger, not any neg ligence on the defendant's part. Based on our review of the record we find no error in the court's determinations. Accordingly, we affirm the court's judgment in favor of the defendant.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.