SHERYL H. LIPMAN, District Judge.
Plaintiff Rachel Malone ("Malone") brings this action against Defendant United States of America for negligence pursuant to the Federal Tort Claims Act, 26 U.S.C. § 2671
The Court held a bench trial in this case on November 12, 2014. (ECF No. 55.) Plaintiff was represented by David Siegel. The United States was represented by Michelle Kimbril-Parks and Harriet Halmon. Plaintiff presented live testimony from two witnesses, Rachel Malone and Jason Malone, and offered twelve exhibits (exhibits 4-15). Plaintiff was unable to serve a6> subpoena on her third witness, Dr. Vernois Buggs, and he was therefore unavailable for trial. Dr. Buggs deposition was admitted into evidence in lieu of his live testimony. (
For the reasons set forth below, the Court finds that Malone did not meet her burden of proving by a preponderance of the evidence that Ware caused her injuries, and therefore the United States is not liable for negligence.
On August 5, 2010, the plaintiff, Rachel Malone, was operating a 2010 Ford Focus westbound on Yale Road in Memphis, Tennessee. (Stipulated Facts, ECF No. 54 at 3.) Defendant Christopher Taylor (who was operating a 1996 Honda Accord) struck the passenger side of Ms. Malone's vehicle at the intersection of Hanna and Yale Road after he disregarded a stop sign. (
Following her conversation with Christopher Taylor regarding the first accident, Malone walked back to her parked vehicle in order to obtain her insurance information. (Transcript, ECF No. 60 at 27). At this point, just minutes after the first accident, a Postal Service truck driven by Edward Ware (an employee of the United States Postal Service who was acting in the course and scope of his employment) collided with the rear of Malone's vehicle. (Stipulated Facts, ECF No. 54 at 3.) Malone claims that she was standing behind her car at the time, and that Ware also struck her person, throwing her into the grass on the side of the road. (Transcript, ECF No. 60 at 28.) Ware avers that he saw Malone's vehicle just prior to hitting it, that he did not see Malone at the time of the accident, and that he only hit Malone's vehicle. (Transcript, ECF No. 60 at 101.) Both Malone and Ware testified that there were many witnesses at the scene of the second accident (
Police and paramedics were dispatched to the scene of the accidents. Malone reported to the lead EMT on the scene (Megan Shields) that she had general pain on her left side. (Transcript, ECF No. 60 at 190.) Malone did not report to the lead paramedic that a motor vehicle directly struck her person. (Transcript, ECF No. 60 at 195.) This is corroborated by the paramedic's report (Exhibit 9), which states that Malone was in a motor vehicle accident but does not mention that Malone was personally struck by a vehicle. In fact, Shields testified that she would have followed a different protocol of treatment if a car had hit Malone. (Transcript, ECF No. 60 at 195.) Malone also failed to report to the responding police officer (Officer Reginald Kelley) that she had been struck by a vehicle. (Transcript, ECF No. 60 at 153.) This is corroborated by the police report which states that the most harmful event was a collision between a vehicle in transport and a parked vehicle (
Following the accident, Malone went to Methodist North Hospital in Memphis, Tennessee where she underwent several X-rays. (Transcript, ECF No. 60 at 33.) The diagnostic tests did not reveal any fractures. (
Under Tennessee law, plaintiffs must prove five elements to prevail on a negligence claim: "(1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of the duty; (3) an injury or loss; (4) causation in fact; and (5) proximate causation."
The testimony offered at trial did not establish that Plaintiff was hit. She testified that she was, even though her back was turned to the Postal truck as it allegedly struck her. Ware testified that he did not hit her, only striking her car. Although both witnesses appeared credible, they could not both be correct as to what occurred, so the Court must look to other proof offered in the matter.
First, despite allegedly being hit by a large truck moving at moderate speed, Plaintiff did not mention to any of the first responders at the scene (police or EMT) that she had been struck by a vehicle. (Transcript, ECF No. 60 at 153, 195.) Furthermore, despite there being many alleged witnesses on the scene (
Because Malone did not prove that her injuries were caused by Ware's negligence, the Court finds in favor of the Defendant, the United States of America.