Furry v. United States

• Decision Date: 13 March 2013
• Docket Number: No. 12–1888.,12–1888.
• Citation: 712 F.3d 988
• Parties: David FURRY and Diane Nye, Plaintiffs–Appellants, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

712 F.3d 988

David FURRY and Diane Nye, Plaintiffs–Appellants,

v.UNITED STATES of America, Defendant–Appellee.

No. 12–1888.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 26, 2012.

Decided March 13, 2013.

Michael W. Rathsack, Attorney, Chicago, IL, Ben A. Crane, Coplan & Crane, Ltd., Oak Park, IL, for Plaintiffs–Appellants.

James M. Kuhn, Sr., Attorney, Office of the United States Attorney, Chicago, IL, for Defendant–Appellee.

Before EASTERBROOK, Chief Judge, and WOOD and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

In this Federal Tort Claims Act case, David Furry and Diane Nye allege that Ronald Williams, a substitute letter carrier for the United States Postal Service, negligently caused a vehicle collision that resulted in substantial injuries. Furry and Nye, who were in the station wagon that made contact with Williams's postal truck, did not see Williams's vehicle before the accident or observe the collision. At the bench trial, they argued that the vehicle damage, Williams's lack of credibility, and his flight from the scene of the accident all proved that Williams acted negligently. The district court declined to find that Williams breached his duty of ordinary care, and we conclude that the court's factual finding on this issue was not clearly erroneous. To prevail, Furry and Nye needed to show by a preponderance of the evidence that Williams initiated the contact between the vehicles. And because they relied on speculation rather than evidence, they failed to meet their burden. We affirm.

I. BACKGROUND

On the afternoon of May 15, 2007, David Furry, Diane Nye, and their daughter were traveling southbound on Grove Avenue, a one-way street in Berwyn, Illinois. Furry was driving the family's 1978 Ford LTD Country Squire station wagon. It was raining heavily that afternoon and visibility was limited. At the same time, Ronald Williams, a recently hired substitute letter carrier for the United States Postal Service (“USPS”), was sitting in a postal truck that was parallel parked on the right side of Grove Avenue at a slight angle with the front of the truck sticking out. Williams had just visited the home of a friend and, in violation of USPS rules, was away from his designated route.

As Furry's station wagon passed Williams's postal truck, the two vehicles collided. The quarter panel and bumper on the right rear of Furry's car made contact with the left front bumper of the postal truck. The impact pushed Furry against the driver's side window and Nye forward against her seatbelt. Furry and Nye did not see the postal truck before the impact, nor did they see the collision.

After the accident, Furry and Nye examined the damage to their station wagon, which suffered minimal damage to the right rear quarter panel and the right side of the rear bumper, which came off its mount. Williams pulled the postal truck away from the curb, drove several car lengths away, parked, and exited the truck. Furry asked Williams to call the police because Furry and Nye did not have cell phones. Williams offered Furry five hundred dollars to not report the accident and to give Williams an opportunity to leave the scene. While Furry searched for straps to lift the station wagon's bumper off the ground, Nye talked to Williams, who said, “Oh, my God. Oh, my God. Oh, this is great. I'm going to get fired. I have to get the rest of this mail delivered. I'm sorry.” After Nye asked Williams for his information and told him to call the police, Williams then stated again that he was sorry and said, “Oh, my God. Oh, my God. I am going to get fired. I have to get this mail delivered or I'll be fired.” Nye again told him to call the police, but Williams walked back to the postal truck, drove away from the scene, and returned to his postal route. Nye wrote down the number of Williams's vehicle.

After searching for Williams for fifteen to twenty minutes, Furry and Nye returned to their home. Ninety minutes after the collision, Furry called the Berwyn Police Department to report the accident. Officer James Tadrowski met Furry and Nye at their residence. They told the police officer their version of events—that Williams hit their vehicle when he pulled out of his parking space, that they talked to Williams and asked for his information, and that he would not give it to them because he was afraid he would lose his job if the crash were reported. Officer Tadrowski returned to the scene of the collision but did not see any evidence of a crash. He did not take any paint scrapings, photographs, or measurements of the vehicles. Later that day, he located Williams and questioned him at the Furry/Nye residence with Lee Junious, a USPS customer service supervisor. Williams denied any involvement in the collision and claimed that he had never seen Furry or Nye before. Williams resigned from USPS the following day.

After exhausting their administrative remedies, Furry and Nye sued the United States under the Federal Tort Claims Act (“FTCA”), alleging that Williams's negligence caused them $45 million in damages. The court held a bench trial in July and August 2011. The plaintiffs testified that they believed that Williams caused the accident by driving the postal truck out of its parking space into their station wagon. Officer Tadrowski also testified about the damage to the vehicles and his interactions with the plaintiffs and Williams, but the district court did not find him “qualified to opine as to which vehicle struck the other.” The plaintiffs did not offer any expert testimony on the cause of the collision.

Even though both parties subpoenaed Williams, he did not appear at the bench trial. After the plaintiffs declined to compel Williams's attendance, the parties agreed that he would testify by deposition. In his deposition testimony, Williams's account of the incident differed from Furry's and Nye's in several ways. Most importantly, he claimed that the postal truck was stationary at the time of the collision and that he had not yet begun to exit the parking space when the station wagon clipped his vehicle. When the plaintiffs' counsel asked Williams to reconcile his assertion that the postal truck was not moving with the fact that the back end of Furry's car came into contact with the postal truck, Williams responded that he had no explanation and that it was “mystical.” In addition, Williams testified that Furry accepted the offer of five hundred dollars, while the plaintiffs do not mention any acceptance. Finally, Williams asserted that he did not speak with Nye at the scene.

At the conclusion of the bench trial, the court took the matter under advisement. The parties subsequently filed proposed findings of fact and memoranda of law.

In its findings of fact, the court credited the plaintiffs' testimony that “the station wagon impacted the postal vehicle,” but it noted that because they did not see the postal truck or the collision, “their belief [that Williams initiated the collision] is not based on any first-hand observation of movement by the postal vehicle, but rather is based on the fact that they felt an impact.”

The court stated that it “had no opportunity to gauge Williams' credibility for itself because the plaintiffs chose not to ask the court to compel his attendance at trial and decided, instead, to rely on his deposition testimony.” The court then explained that even if it were to assume that Williams lacked credibility and to consider the plaintiffs' testimony not rebutted, their “testimony establishe[d] only that their station wagon and the postal vehicle collided, not which vehicle was responsible for the collision.” The court found that there were other possible causes of the accident, including Furry's vehicle sideswiping the postal truck or hydroplaning (recall that there was heavy rain at the time) into the postal truck unbeknownst to the plaintiffs. And because, according to the parties, USPS could have fired Williams for either being involved in any accident, regardless of fault, or being away from his designated route, the court would not infer that negligencewas the only possible reason Williams left the scene.

The district court entered judgment in favor of the United States, finding that the plaintiffs failed to meet their burden of proof on breach of duty by a preponderance of the evidence because they offered only “sheer speculation”—not evidence or expert opinion—to support their position that the damage to their vehicle and the postal truck conclusively proved that Williams initiated the contact. Furry and Nye appeal.

II. ANALYSIS

In the FTCA, 28 U.S.C. §§ 1346(b)(1) & 2671–80, Congress waived the United States's sovereign immunity for suits brought by persons injured by the negligence of federal employees acting within the scope of their employment. Emp'rs Ins. of Wausau v. United States, 27 F.3d 245, 247 (7th Cir.1994). The “law of the place where the act or omission occurred” governs FTCA claims, 28 U.S.C. § 1346(b)(1), so we rely on Illinois law here. To succeed on a negligence claim in Illinois, a plaintiff “must allege and prove that the defendant owed a duty to the plaintiff, that defendant breached that duty, and that the breach was the proximate cause of the plaintiff's injuries.” First Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 242 Ill.Dec. 113, 720 N.E.2d 1068, 1071 (1999). The parties agree that Williams had “a duty to exercise reasonable care in the operation of his vehicle and to have his vehicle under such control as [would] enable him to avoid collision with other vehicles or pedestrians.” Moran v. Gatz, 390 Ill. 478, 62 N.E.2d 443, 444 (1945). So the issues presented for resolution at the bench trial were breach, proximate cause, and damages.

A. Clear Error Standard of Review

In an appeal from a bench trial, we review the district court's findings of fact and applications of law to those findings for clear error. Trs. of Chi. Painters & Decorators...