Fitzpatrick v. US, Civ. A. No. 88-270-CMW

• Decision Date: 02 January 1991
• Docket Number: Civ. A. No. 88-270-CMW,88-82-CMW.
• Citation: 754 F. Supp. 1023
• Parties: Eileen M. FITZPATRICK, Plaintiff, v. UNITED STATES of America, Defendant. Cheryl Ann and Alan KEHNAST, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Delaware

754 F. Supp. 1023

Eileen M. FITZPATRICK, Plaintiff, v. UNITED STATES of America, Defendant.

Cheryl Ann and Alan KEHNAST, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 88-270-CMW, 88-82-CMW.

United States District Court, D. Delaware.

January 2, 1991.

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Elwood T. Eveland, Jr., of Woloshin, Tenenbaum & Natalie, Wilmington, Del., for plaintiff Fitzpatrick.

Robert Pasquale, and Arthur M. Krawitz, of Doroshow, Pasquale & Linarducci, Wilmington, Del., for plaintiffs Kehnasts.

William C. Carpenter, Jr., U.S. Atty., and Patricia C. Hannigan, Asst. U.S. Atty., Wilmington, Del., for defendant.

OPINION

CALEB M. WRIGHT, Senior Judge.

Plaintiffs Cheryl Ann and Alan Kehnast brought this action in this Court pursuant to 28 U.S.C. § 2671, et seq., (the Federal Tort Claims Act) on February 19, 1988, against Defendant United States of America. Plaintiff Eileen M. Fitzpatrick also commenced an action in this Court pursuant to the Federal Tort Claims Act on May 20, 1988, against Defendant United States of America and Willie D. Davis.¹ These actions were consolidated by an Order of this Court issued on March 14, 1989.

Plaintiffs seek to hold the United States liable for injuries allegedly caused by the negligence of Willie D. Davis, a Sergeant in the United States Army. Plaintiffs claim that Sergeant Davis was acting within the scope of his employment when his government-leased vehicle collided with the stationary vehicle occupied by Cheryl Ann and Alan Kehnast which subsequently collided with the Fitzpatrick vehicle, also stationary.

The Plaintiffs Cheryl Ann and Alan Kehnast also seek to hold the United States liable on a claim of negligent entrustment (of a motor vehicle).²

This Court has Jurisdiction pursuant to 28 U.S.C. § 1346(b).

For the reasons which will be stated herein, the Court enters judgment against the Defendant United States of America and in favor of the Plaintiffs and awards to the Plaintiff Cheryl Kehnast the sum of $64,720.00, to the Plaintiff Alan Kehnast the sum of $46,300.00 and to the Plaintiff Eileen Fitzpatrick the sum of $29,500.00.

A. Findings of Facts

1. The Accident of March 15, 1985

In March of 1985, Willie D. Davis was a Sergeant First Class in the United States Army assigned to Readiness Group Meade, at Fort Meade, Maryland. Sergeant Davis' position was Senior Medical Sergeant which included the responsibility of acting as a medical advisor for the National Guard and Army Reserves in Delaware. Sergeant Davis' position involved assisting in the training of members of the Army Reserves and National Guard on the proper operation of a military medical unit. This position would require Sergeant Davis to travel, frequently for weekend drills, from Fort Meade to the particular location of the National Guard or Army Reserve Unit he was to assist. For such travel Sergeant Davis was authorized to operate a government vehicle and to make his own arrangements for food and overnight accomodations.

On Friday, March 15, 1985, Sergeant Davis obtained a government-leased vehicle from the motor pool at Fort Meade. He then proceeded to drive this vehicle to New Castle, Delaware to participate in the activities of the 116th M.A.S.H. unit of the National Guard over the weekend. Sergeant Davis could not recall what time he arrived in Delaware but remembered checking into a motel and going over and visiting the 116th unit. (Tr 465). He believes the 116th unit was closed or the person he was supposed to see wasn't there so he went next door to the officers' club to look for this person. (Tr 465).

The subsequent events after Sergeant Davis entered the officers' club are contained in an interview of Sergeant Davis, as to this trip to Delaware and the accident which occurred while on this trip, that was conducted by Captain Kenneth Grant, of the Judge Advocate General Corps., on April 16, 1985 (the Grant Memorandum).³ According to this interview Sergeant Davis arrived at the National Guard Unit in Delaware at about 6:00 P.M. on March 15, 1985. Sergeant Davis then attempted to contact Specialist Ralph Scott, the trainee NCO for the 116th M.A.S.H. unit, but was unsuccessful. He then went to the officers' club for the purpose of locating Captain Hayes, the unit executive officer. Upon learning that Captain Hayes was not at the club, Sergeant Davis remained at the officers' club, during which time he consumed alcohol, socialized, and played pool. Sergeant Davis spoke intermittently with a Lieutenant Kearns and they played pool together. They discussed among other things Lieutenant Kearns' job responsibilities within the unit.

At trial Sergeant Davis testified that he remembered leaving the officers' club (Tr-475), but was unable to recall the time without looking at the memorandum of his interview with Captain Grant. Sergeant Davis did state at trial that he believed when he left the club he was headed to the Macintosh Inn where he had checked in previously that evening. (Tr-475). Sergeant Davis supported this belief by his statement at trial that he did not know anywhere else to go in Delaware. All that Sergeant Davis was able to recall at trial prior to the automobile collision, up until the next morning, was driving down a street and approaching a light and perceiving there to be three cars ahead of him. At this point Sergeant Davis blacked out. (Tr-475).

According to the memorandum prepared by Captain Grant, it was about 9:30 P.M. when Sergeant Davis left the officers' club on route to his motel billet. While on his way to the motel, Sergeant Davis collided with the last of three cars stopped at a traffic signal on Route 71, near Churchman's Road, in New Castle, Delaware. The vehicle Davis was driving hit the vehicle of the Plaintiffs Cheryl Ann and Alan Kehnast, which struck the vehicle of the Plaintiff Eileen M. Fitzpatrick, which in turn hit a vehicle driven by Mr. William Sebok. The police were summoned by witnesses to the scene of the accident and upon arriving arrested Sergeant Davis for Driving Under the Influence of Alcohol. Sergeant Davis submitted to a breathalyzer test at Delaware State Police Troop 6 and this test indicated a blood alcohol level of 0.20.

The Plaintiff Cheryl Kehnast was taken to the hospital by ambulance and suffered injuries as a result of this accident. The Plaintiff Alan Kehnast accompanied his wife in the ambulance to the hospital. He did not recieve any care at the emergency room at this time but was subsequently treated the next day for injuries suffered as a result of this accident. The Plaintiff Eileen Fitzpatrick was also taken to the hospital by ambulance and suffered injuries as a result of this accident.

2. Injuries of Plaintiff Cheryl Ann Kehnast

The Plaintiff Cheryl Ann Kehnast was 28 years old and a passenger in the front seat of an automobile driven by her husband, Alan Kehnast, on March 15, 1985, at the time, when the Kehnast's vehicle was struck by the vehicle operated by Sergeant Davis. The force of the impact caused Ms. Kehnast's left shoulder to hit against the dashboard and her knees to be forced underneath the seat. She was not wearing a seatbelt at the time of the impact. Ms. Kehnast came to rest on the floor of the vehicle. Ms. Kehnast was taken by ambulance to the hospital where x-rays were taken, her knees, legs, and shoulder were examined, her shoulder was immobilized in a sling, and she was given pain medication.

John R. Smoluck, M.D., a board certified orthopedic surgeon who has special interest in injuries involving the shoulder and knee examined Cheryl Kehnast on March 18, 1985. Ms. Kehnast related the history of being involved in an automobile accident and the pain she was having around her shoulder and in the low back and the general soreness she was having around the neck. After examining Ms. Kehnast Dr. Smoluck agreed with the diagnosis made in the emergency room of an acromioclavicular sprain. (Tr-358).⁴ At this time Dr. Smoluck continued to have Ms. Kehnast wear the sling.

The next visit with Dr. Smoluck was on April 4, 1985. At this time Dr. Smoluck advised Ms. Kehnast to continue wearing the immobilization strap and to begin a program of physical therapy. (Tr-363). Dr. Smoluck stated that he believed Ms. Kehnast started physical therapy at this time and regularly attended it for at least several months, if not longer. (Tr-366). Dr. Smoluck, however, did not find that the therapy was helping to alleviate her symptoms as she was still experiencing a lot of pain around the shoulder on her next scheduled visit of April 29, 1985.

On June 3, 1985, after several visits to Dr. Smoluck, physical therapy, an arthrogram and x-rays, additional prescriptions for pain medication, and continuing immobilization of her shoulder, Ms. Kehnast continued to have pain, soreness and limited motion around the shoulder and was experiencing clicking and grinding in the shoulder. (Tr-367). At this visit on June 3, 1985, Dr. Smoluck recommended arthroscopy in order to allow him to directly visualize the shoulder joint.⁵ The arthroscopy was performed on June 21, 1985. Upon examination, Dr. Smoluck found Ms. Kehnast's shoulder to be unstable anteriorly and diagnosed a posteroanterior dislocation of the shoulder, anterior instability of the shoulder and a large articular defect of the posterior aspect of the humerus. (Tr-369).⁶ Dr. Smoluck viewed the findings upon doing the arthroscopy as consistent with a traumatic dislocation of the shoulder. (Tr-371).

As of Dr. Smoluck's September 4, 1985 examination of Ms. Kehnast, she had experienced a recurrent episode of dislocation of her shoulder three weeks prior,⁷ and as she had spent a lot of time in physical therapy, Dr. Smoluck believed the criteria indicatied ongoing instability and therefore, recommended surgery. (Tr-376). On October 5, 1985, a Bristow procedure was performed. The purpose of the procedure is to reinforce the structures...