Caplan v. United States

Decision Date08 September 2016
Docket NumberNo. 14 C 8235,14 C 8235
PartiesDANA CAPLAN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
CourtU.S. District Court — Northern District of Illinois

Judge Sara L. Ellis


Plaintiff Dana Caplan receives medical treatment at the Government-run Captain James A. Lovell Federal Healthcare Center ("Lovell") in North Chicago, Illinois, which provides motorized scooters to Veterans Affairs ("VA") patients to assist their mobility in the health center. Caplan received a scooter before a medical appointment in March 2012, and when the scooter tilted, he tried to stop it with his leg and tore his quadriceps tendon. Caplan alleges that the Government gave him a scooter that was inappropriate for his weight and size and that the Government is liable under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1). The Government has filed a motion for summary judgment on Caplan's FTCA claim and to limit the amount of damages that Caplan may recover [20], and Caplan has filed a cross-motion for summary judgment [26]. Because Caplan affirmatively abandons any claim that the Government breached a duty to warn Caplan about the scooter, the Court grants the Government's motion for summary judgment. Further, the Court denies Caplan's cross-motion because he has not shown that he can bring any tort claim other than a duty to warn claim. Because the Government is entitled to summary judgment on Caplan's claims, the Court denies the Government's motion to limit Caplan's damages as moot.


Caplan has received medical treatment at Lovell since 1999. During that time, Lovell has provided motorized scooters to VA patients to assist their mobility in the health center. In 2008, Caplan had foot and leg problems, so he asked for a motorized scooter. The VA instructed Caplan on the general safety of scooter use, and Caplan passed a scooter driving exam that made him eligible for scooters from the VA in 2008.

During the relevant time periods in Caplan's case, the VA loaned two types of scooters at Lovell, the Pride Maxima and the Pride Victory 9. Both have three wheels. Maxima scooters have a weight limit of 400 pounds, and the smaller Victory 9 scooters have a 300-pound weight limit. There are visible differences between the Maxima and the Victory 9 scooters: they have different seats, the Maxima is much larger and is labeled "Maxima," and the Victory 9 is labeled "Victory 9." The scooters that the VA loans out to patients for use in Lovell are kept at Lovell's circle-drive entrance, which provides valet service for patients who drive. The keys to the loaner scooters are kept in a container at the front desk that is situated at the entrance's two sets of automatic doors.

Caplan is 6'5" and weighs more than 420 pounds, and the VA gave him two Maxima scooters to keep for his personal use. Normally, Caplan used these two Maxima scooters to move throughout Lovell during his visits there (his personal truck was capable of carrying, loading, and unloading a scooter); when he did not use his own Maxima scooters he used Maxima scooters loaned to him at Lovell.

On March 9, 2012, Caplan was scheduled for physical therapy appointment at Lovell. His personal scooter had a battery issue, so he called the VA in advance of the appointment to reserve a scooter at Lovell. He identified himself, and his weight, to whomever was on the line, though Caplan does not recall to whom he spoke, and he requested a "fat boy scooter" because he weighed over 400 pounds.

When Caplan arrived at Lovell for the March 9 appointment, Caplan pulled into the circle drive entrance. Vocational rehabilitation unit ("VRU") patient Daryl Thomas was assigned to work the front desk at the circle drive entrance. Valets Steven Negron and Nathaniel Forcier, employees of Advantage Valet, a valet company hired as an independent contractor by the VA, were working the valet stand at the circle drive entrance.

Caplan waited for the valet to take his car. When the valet came out to Caplan's car, Caplan gave his name and stated that he needed a scooter. The VA can refuse to give scooters to patients who cannot operate the scooter safely, in which case the patient must accept a wheelchair or wait for scooter the patient can safely operate. The valet left and returned with a Victory 9 scooter, telling Caplan that it was the only scooter with a charge available. Caplan recognized the scooter as a Victory 9 scooter, reading the "Victory 9" written across its side. Believing that the Victory 9 was the only scooter available for him to use and fearing he would be late for his appointment, Caplan mounted the scooter and found that he fit on the seat and the scooter operated the same way as the other scooters he had used. Caplan drove the scooter, moving approximately 1 mile per hour, and then he made a "U" turn, going back the way he came. As he started to pass the back of his truck, the scooter tipped to his right. He stuck out his right leg, stopping the scooter from tipping but tearing his right quadriceps tendon. After hurting his leg, he was wheeled to the emergency room in a wheelchair.

The only two valets working that day were Negron and Forcier. Caplan does not know the name of the valet who brought him the Victory 9 scooter, nor had he seen him before March 9, 2012. Negron denied he brought the Victory 9 to Caplan; Forcier testified he might have brought the Victory 9 to Caplan. But both valets denied they would ever take a key to a scooter without permission from the person working at the entrance's front desk who was responsible for the keys. Forcier did not remember who was working the Lovell front desk at the circle drive entrance, but he believed it could have been either a volunteer or VRU patient.

Thomas, scheduled to work at the front desk at the time of Caplan's arrival, testified that he had never seen a valet bring a scooter out to a VA patient and denied giving a valet a key to bring a scooter out to a patient. The front desk is not to be left unsupervised; if the person working the desk must leave, they are to be relieved by another VRU patient, volunteer, or employee working at the quarterdeck2 desk.

On November 14, 2013, Caplan filed a claim for damages with the VA, stating the amount of his claim was $500,000.00. However, Caplan testified that, before November 14, 2013, he filed a prior claim for damages with the VA in which he stated the amount of his claim was $500,000.00 plus additional civil veteran pay of $3,000 a month.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56 & advisory committee's notes. The partyseeking summary judgment bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to identify specific material facts that demonstrate a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the Court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The Court considers each cross-motion separately and views the evidence in the light most favorable to the non-movant of each motion considered. Lalowski v. City of Des Plaines, 789 F.3d 784, 787 (7th Cir. 2015).

I. Summary Judgment Briefing Issues

Before addressing the merits of Caplan's claim, the Court must address procedural issues raised by the parties at the summary judgment stage. In reply to its motion for summary judgment and opposition to Caplan's cross-motion, the Government asks the Court to reject facts that Caplan has included in his memorandum supporting his combined cross-motion for summary judgment and response to the Government's motion for summary judgment. The Government takes issue with these facts because they are not presented in the parties' joint statement of facts, are not clearly in support of Caplan's cross-motion or his opposition to the Government's own motion, or are unsupported.

The Court's rules on summary judgment practice are clearly stated in its case procedures, requiring that parties comply with Local Rules 56.1(a)(1)-(2) and 56.1(b)(1)-(2) and the Court's other rules on summary judgment. Judge Sara L. Ellis, Case Procedures, Summary Judgment Practice, available at When moving for summary judgment, the moving party must rely on a joint statement of undisputed material facts, which the parties agree are not in dispute, filed separately from the movant's memoranda of law and supported by citations to admissible evidence. Id. This applies to cross-motions as well. To oppose a motion for summary judgment, the non-moving party may "include facts in its response that it contends are disputed in order to demonstrate that a genuine issue of material fact exists that warrants denying the motion for summary judgment," supporting these facts with citations to supporting material. Id.

Caplan's opening memorandum's statement of facts and argument both include undisputed facts that should have been presented in the joint statement of undisputed facts.3 Doc. 28 at 2-7. He has...

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