JACK B. WEINSTEIN, Senior United States District Judge.
I. Introduction ...221
II. Findings of Fact...221
A. Accident ...221
B. Injury ...226
III. Findings of Law ...227
A. New York Negligence and Motor Vehicle Law ...227
B. Application of Law to Facts ...228
IV. Damages ...228
A. Past Medical Expenses and Past Lost Earnings ...228
B. Future Medical Expenses and Future Lost Earnings ...229
C. Pain, Suffering, and Loss of Enjoyment; Lost Ability to Complete Household Responsibilities ...230
V. Damages, Interest, Costs and Disbursements...233
VI. Conclusion ...234
This case is about a traffic accident that would not have happened had either vehicle operator exercised reasonable care. Plaintiff, a motorcyclist, was not paying attention while riding too fast on his way to work. As he approached an intersection controlled by a traffic light, a United States Postal Service ("USPS") truck was waiting to make a left turn across the lane in which plaintiff was traveling. The truck driver unreasonably proceeded into the intersection and into plaintiff's lane, forcing him to take emergency evasive action; he lost control, was hurled from his motorcycle, sustaining serious injuries.
On March 3, 2014, plaintiff commenced this action against the USPS. 28 U.S.C. §§ 2671 et seq. ("FTCA"); Compl., March 3, 2014, ECF No. 1. He alleges injuries as a result of the USPS truck driver's negligence. Compl., March 3, 2014, ECF No. 1. Defendants filed an answer on May 19, 2014. Answer, May 19, 2014, ECF No. 5. After full discovery, the case was tried by the court between October 6th and 16th, 2015.
Both drivers were equally negligent. Each party is responsible for 50% of the damage. Findings of fact and law are set forth below. See Fed.R.Civ.P. 52(a).
On May 30, 2013, at approximately 4:30 p.m., USPS employee Kenya Little was operating a two-ton mail delivery truck in the vicinity of Louisiana Avenue and Twin Pines Drive, in Brooklyn. Ms. Little was operating the truck in the normal performance of her duties. She was proceeding south on Louisiana Avenue when she stopped at the red light marking the intersection with Twin Pines Drive. Below is a photograph of the intersection looking south:
Plaintiff was traveling north on Louisiana Avenue when he approached the intersection with Twin Pines Drive. Below is a photograph of the intersection of Louisiana Avenue and Twin Pines Drive looking north:
According to plaintiff, he had been traveling at 25 M.P.H. northbound on Louisiana Avenue. He testified that the light was green when he was approximately half a mile from the intersection. Then, when he was approximately 150 yards from the intersection, plaintiff testified that he looked up and saw the light was red. At that point plaintiff says he switched the motorcycle into neutral and prepared to stop. When plaintiff was ten feet from the intersection, he says the light turned green, so he switched gears and began to proceed straight into the intersection. Plaintiff testified that when he entered the intersection he was traveling between 5 and 10 M.P.H. and was accelerating. Trial Tr., Oct. 6, 2015, at 55:1-61:24.
Plaintiff did not keep a proper watch of the intersection and traffic signal. He did not look at the light between the time when he was, according to his testimony, traveling a half mile to less than 150 yards from the intersection. Id. at 56:8-59:19. Based on the nature of plaintiff's injuries, the place where the vehicles came to rest, the damage to the motorcycle, the testimony of defendant's expert, Dr. Jeffrey Ketchman, and the other evidence, the
When the light turned green, Ms. Little entered the intersection of Louisiana Avenue and Twin Pines Drive and began to turn left onto Twin Pines Drive. She failed to look to see if anyone was coming down the lane she was turning into.
Ms. Little testified at trial that she turned the wheel of the USPS truck a little to the left, but the truck itself never crossed the center of the intersection. Trial Tr., Oct. 6, 2015, at 172:2-174:5, 176:10-12. Ms. Little was not a credible witness on this point. Ms. Little brought the front half of her truck through the center of the intersection and into the northbound lane of Louisiana Avenue in a dangerous maneuver.
Upon seeing the postal service truck enter the intersection and cross into his lane, plaintiff testified that he took evasive action in order to avoid what he believed would be a collision. Plaintiff contends that he made a sharp right turn but was unable to maintain control over his motorcycle. As a result, plaintiff testified, the motorcycle fell onto its right side inside the intersection. Id. at 65:8-66:16. Ms. Little testified that the motorcycle fell to the ground before entering the intersection and skidded on its side into the intersection. See id. at 177:1-179:3; Def.'s Trial Ex. I-16.
Ms. Little's testimony is not credited. The nature of plaintiff's injuries, the damage to the motorcycle, the testimony of plaintiff and the testimony of a neutral witness all support the conclusion that the motorcycle fell inside the intersection. It had stopped and turned too sharply, reared-up as its brakes were applied as hard as possible, and entered the intersection out-of-control.
A photograph of the intersection with markings of where the motorcycle lay, as recalled by a neutral witness, is below:
These markings are found to accurately represent where the motorcycle came to rest.
Plaintiff's testimony regarding how the motorcycle landed on his leg is wrong. On this point, the testimony of defendant's expert witness, Dr. Robert Meyerson, is credited; it properly analyzes the x-rays and other medical data to demonstrate that plaintiff was thrown from the motorcycle and that his knee was driven hard into the pavement when he landed:
Trial Tr., Oct. 13, 2015, at 533:19-537:20 (emphasis supplied). The plaintiff fell off the motorcycle, tumbling on the ground. His knee was driven into the pavement, causing the injury.
There was never any physical contact between the motorcycle and the truck. The motorcycle sustained some minor damage to its right side, but did not slide
Plaintiff contends that when the motorcycle fell, it trapped his right leg underneath it, causing a significant injury to his right knee and left shoulder. In fact, the nature of the injury to plaintiff's knee and the fact that it was his left, rather than right, shoulder which was also injured, indicates that plaintiff's injuries were caused by him tumbling off the motorcycle, rather than simply falling on his right side. See Trial Tr., Oct. 13, 2015, at 531:20-542:5.
Injury to plaintiff's right knee was severe. He suffered a comminuted and displaced type five tibial plateau fracture. Parts of plaintiff's knee had been shattered and the pieces were out of the position that they should have been in. Trial Tr., Oct. 7, 2015, at 281:24-282:15. Other injuries were relatively minor.
Before the knee could be repaired, plaintiff's doctors had to wait for severe swelling to go down. During this time plaintiff's leg was immobilized by an external fixator. The installation of the fixator involved the insertion of pins into plaintiff's tibia that would support a rod on the outside of the leg. A second surgery was required to fix the location of the pins. Once the swelling had sufficiently diminished, plaintiff underwent a third surgery for insertion of permanent metal plates.
With respect to plaintiff's left shoulder, the injury was less severe. There was a separation of the acromioclavicular joint (known as the AC joint).
"In a civil case, the plaintiff bears the burden of proving the elements of his claim by a preponderance of the evidence. To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not true." Brown v. Lindsay, Nos. 08-CV-351, 08-CV-2182, 2010 WL 1049571, at *12 (E.D.N.Y. Mar. 19, 2010) (citations omitted).
The court has jurisdiction over this matter pursuant to FTCA. "The FTCA allows plaintiffs to recover damages for an injury caused by the negligence of government employees acting within the scope of their employment." Taylor v. United States, 121 F.3d 86, 89 (2d Cir.1997). It is conceded that the truck driver was acting within the scope of her employment.
Under FTCA, the liability of the United States to a plaintiff for negligence is determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). Because the accident took place within New York, the substantive law of that state applies.
Negligence is defined as acting or failing to act in an unreasonable way under the circumstances:
Silva v. United States, No. 08-CV-4114, 2010 WL 3731172, at *4 (E.D.N.Y. Sept. 20, 2010) (citing New York Pattern Jury Instructions 3d ed. ("N.Y.P.J.I.") 2:10 et seq. (2010)).
"To prevail on a claim of negligence under New York law, a plaintiff must establish: `(1) that a duty of care was owed by the defendant to the plaintiff; (2) that the defendant breached that duty; (3) that the defendant's breach was a proximate cause of the plaintiff's injuries; and (4) that plaintiff was damaged.'" Brown, 2010 WL 1049571, at *13 (quoting Crews v. Cty. of Nassau, 612 F.Supp.2d 199, 205 (E.D.N.Y.2009)).
New York law imposes on operators of motor vehicles a duty of reasonable care taking into account the circumstances of the situation. Goldstein v. United States, 9 F.Supp.2d 175, 186 (E.D.N.Y. 1998); N.Y.P.J.I. 2:77. The same duty of reasonable care is imposed on motorcyclists and four-wheeled vehicles. N.Y. Veh. & Traf. Law § 1250. "This longstanding duty requires drivers to [1] maintain a reasonably safe rate of speed, [2] have the automobile [or motorcycle] under reasonable control, [3] to keep a proper lookout under the circumstances then existing to see and be aware of what was in their view, and [4] to use reasonable care under the circumstances to avoid an accident." Goldstein, 9 F.Supp.2d at 186.
The drivers of the two vehicles were entitled to protection of the New York law:
Vaselli v. United States, No. 12-CV-06221, 2014 WL 4961421, at *5 (E.D.N.Y. Oct. 3, 2014) (quoting Mauro v. Costco Wholesale Corp., No. 09-CV-1391, 2013 WL 3816731, at *4 (E.D.N.Y. July 22, 2013)).
The governing statute is New York Vehicle & Traffic Law § 1160(b). It requires care approaching and moving in an intersection:
N.Y. Veh. & Traf. Law § 1160. A turn described in § 1160(b) shall not be made "until such movement can be made with reasonable safety." N.Y. Veh. & Traf. Law § 1163(a). Drivers must yield the right of way to oncoming traffic before making a left turn across the oncoming traffic's lane. N.Y. Veh. & Traf. Law §§ 1111(a) & 1141; N.Y.P.J.I. 2:79.
By crossing the center of the intersection when plaintiff was at or near the crosswalk proceeding too fast to stop safely in the oncoming lane, Ms. Little violated Sections 1111(a)(1), 1141, 1160(b) and 1163(a). See N.Y.P.J.I. 2:79 & 2:81. These violations represent a breach of defendant's duty of care owed to other motorists on the road. As a result of Ms. Little's actions, plaintiff — a member of the class of people who these statutes were intended to protect — was injured in the way the statutes were intended to prevent. Ms. Little's actions constitute negligence for which defendant, as her employer, is responsible.
Plaintiff was also at fault. He bore a duty "to maintain a reasonably safe rate of speed ... [and] to keep a proper lookout under the circumstances then existing to see and be aware of what was in their view." Goldstein, 9 F.Supp.2d at 186. The evidence shows that he breached this duty by failing to keep a proper lookout and by proceeding into the intersection at a rate of speed that was unsafe in light of the circumstances. But for plaintiff's breach of his duty of care, he would have been able to safely stop his motorcycle.
Plaintiff and defendant are equally at fault for plaintiff's injuries. See N.Y. C.P.L.R. § 1411.
Plaintiff submitted medical bills demonstrating that he has incurred $280,665 in medical expenses since the date of the accident. See Pl.'s Trial Ex. 28. Defendant contends that plaintiff's insurance has paid $118,497.40 in full satisfaction of plaintiff's medical expenses. See Def.'s Trial Ex. X. Following the conclusion of the trial, plaintiff submitted a letter from his insurance company indicating that as of December 1, 2015, the insurance company's payments had increased to $119,200.45. Pl.'s Response to Def.'s Post-Trial Findings of Fact and Conclusions of Law, Dec. 18, 2015, ECF No. 79, at Ex. 2. It is proper to award damages for
There appears to be medical bills of $24,798.42 which may be unpaid. See Pl.'s Trial Ex. 28. Plaintiff has not met his burden of proving that insurance will not pay them and that he will. Thus, they have been omitted from the computation of damages.
The parties' experts disagree on the amount of wages plaintiff lost during the seven months he was out of work as a result of the accident. Plaintiff's expert calculated a total of $26,554 in lost wages, while defendant's expert estimated $31,972. Plaintiff's expert explained that the difference in the two amounts comes from taking into account inflation. See Trial Tr., Oct. 14, 2015, at 610:2-611:10. The defendant's expert's calculation is appropriate because of its inclusion of a reasonable inflation factor.
Plaintiff's doctors opined that plaintiff is likely to need a full knee replacement and surgery on his shoulder in the future. Defendant's expert's testimony is more credible. In court plaintiff walked easily and without a cane, with good posture and no apparent pain. The defense expert's opinion on this point was as follows:
Trial Tr., Oct. 13, 2015, at 542:21-545:13.
Observations by the court or by a jury during a trial are evidence. The trier's evaluation of the credibility, for example, of a witness who at times hobbles with a cane but at other times readily assists his attorney moving exhibits around the courtroom will be noted and given weight. The visage of a witness is taken into account. A view outside of the court during trial is also evidence. See, e.g., In re Appl. to Take Test, in Criminal Case Outside Dist., 102 F.R.D. 521, 524 (E.D.N.Y.1984).
A continued course of moderate physical therapy is the appropriate treatment for plaintiff's injuries. The evidence does not support a finding that plaintiff will require more.
The total cost of weekly visits to a physical therapist for the remainder of plaintiff's expected life span has a present value of $136,000. Trial Tr., Oct. 14, 2015, 632:24-634:17. Plaintiff will also likely incur, in present dollar values, bills of $30,183 for doctor visits, $4,350 for magnetic resonance imaging scans (MRIs), and $9,900 for x-rays. See id. at 653:19-654:2. The total value that plaintiff is entitled to receive for future medical expenses is $180,233.
Despite plaintiff's contention that he has difficulty performing his job, the evidence indicates that he is capable of performing assigned job-related duties. See Def.'s Trial Ex. R-2 (showing that plaintiff worked more than 200 hours of overtime in 2014 and 2015). He is not entitled to any damages for lost future earnings based on his inability to work.
Plaintiff argues that he was in line for a promotion at his job which would have resulted in a significant salary increase. He contends that because he was out of work following the accident, the position was filled by another candidate, causing him to incur significant future lost earnings. The evidence does not support the conclusion that plaintiff would have received this promotion but for his absence from work resulting from his injuries. Plaintiff is not entitled to any damages for lost future income.
It is not possible to establish precisely the appropriate level of damages for pain and suffering. Plaintiff has submitted examples of comparable awards:
The defendant submitted examples of awards from cases it argues are comparable to this one:
The comparative figures submitted by both sides are generally reasonable. See Rivenburgh v. CSX Transp., 280 Fed. Appx. 61, 64 (2d Cir.2008); Torres v. Santus LLC, No. 11-CV-5481, 2014 WL 978431, at *6 (E.D.N.Y. Mar. 12, 2014) ("many courts look to what other fact-finders have found to be reasonable compensation"). An award for pain, lost enjoyment and lost ability to complete full household chores is based on a reasonable evaluation of the above comparative awards submitted by the parties and extended experience of the trier.
Plaintiff sustained a serious injury to his knee and a minor injury to his shoulder. He underwent three operations to repair his knee, as well as a course of physical therapy. Although future operations are not likely to be necessary, plaintiff will probably require further physical therapy.
Since the accident, plaintiff has been unable to bowl, or to contribute fully to household chores.
A reasonable amount for past pain and suffering is $900,000, and for future pain and suffering, loss of enjoyment, and lost ability to complete household chores it is $250,000, based upon general New York state compensation amounts, and the facts in the instant case.
Plaintiff is entitled to an award of damages. Reduced amounts because of a finding of 50% contributory negligence are shown in parenthesis:
Costs and disbursements are not awarded. Each party is equally at fault.
Based on the evidence, plaintiff has met his burden of proof with respect to his negligence claim. A verdict in favor of the plaintiff is entered on that claim.
The total award to plaintiff after taking into account his contributory negligence is $800,302.95. Judgment shall be entered by the Clerk of the court in this amount.
SO ORDERED.
