The FTCA allows suits against the United States for "money

1

damages . . . for injury or loss of property, or personal injury

. . . caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his

office or employment, 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." 28

U.S.C. § 1346(b). 

By consent of the parties, the case was tried before a federal

magistrate judge, see 28 U.S.C. § 636(c), on only the issues of

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* [UNPUBLISHED]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 Claims Act

(FTCA), 28 U.S.C. § 2671, after he sustained injuries from a fall on an ice

patch in front of a United States Post Office in Yutan, Nebraska. Heller 1

claimed that the United 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 or

omissions occurred governs the determination of negligence under the FTCA.

See LeFond v. United States, 781 F.2d 153 (8th Cir. 1986). Under Nebraska

law, a claim of negligence by a business invitee requires proof of the

following five elements: (1) the possessor defendant either created the

condition, knew of the condition, or by the exercise of reasonable care

would have discovered the condition; (2) the defendant should have realized

the condition involved an unreasonable risk of harm to a business invitee;

(3) the defendant should have expected that a business invitee such as the

plaintiff either (a) would not discover or realize the danger, or (b) would

fail to protect himself against the danger; (4) the defendant failed to use

reasonable care to protect the plaintiff invitee against the danger; and

(5) the condition was a proximate cause of damage to the plaintiff.

Cloonan v. Food-4-Less of 30th & Weber, Inc., 529 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 burden of proof only with respect

to the first element. The court concluded that the ice patch was too small

to present an unreasonable risk of harm, that it was reasonable for the

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 own

failure to see and avoid the danger, not any negligence 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.