Carmely v. United States

CourtUnited States District Courts. 4th Circuit. Western District of North Carolina
Docket Number3:20-cv-00689-RJC-DCK
Decision Date13 April 2023




No. 3:20-cv-00689-RJC-DCK

United States District Court, W.D. North Carolina, Charlotte Division

April 13, 2023


Robert J. Conrad, Jr. United States District Judge


This case was tried before the undersigned on March 6-8, 2023. Plaintiffs David and Michal Carmely sued Defendant United States of America under the Federal Tort Claims Act (“FTCA”) for injuries arising from a road collision between David Carmely and a United States Postal Service carrier, Tammy Miller. The Carmelys alleged claims for negligence, gross negligence, and loss of consortium. (Doc. No. 1).

Before trial, the Court denied the United States' motion for summary judgment as to gross negligence but granted the motion limiting loss of consortium to $25,000. Following the bench trial, the Court makes the following Findings of Fact and Conclusions of Law, concluding that Ms. Miller was negligent in operating her Postal Service vehicle; that Mr. Carmely may recover $1,860,601.68 under his negligence claim, and that Ms. Carmely may recover $25,000 for loss of consortium.



On December 19, 2017, Defendant, U.S. Postal Worker Tammy Miller, drove her USPS vehicle on Hiwassee Road approaching the Huntingtowne Village Road intersection. She signaled a left turn and waited for traffic to clear. At the same time and place, Plaintiff, David Carmely approached from the opposite direction riding his motorcycle (Trial Transcript at 55-56 (hereinafter “Tr.”)).[1] Wrongly thinking her path clear, Miller turned left, striking Mr. Carmely and his motorcycle, ejecting him into a wooded area near the intersection. (Pl. Ex. 22, at 47; Tr. at 57, 66-67).

At the time of the accident, Mr. Carmely was operating his motorcycle at a safe speed in his own lane of traffic, and he was not under the influence of any drugs or alcohol. (Pl. Ex. 22, at 47; Tr. at 25-26, 56-57). Ms. Miller, through her ordinary negligence, was the sole cause of the collision. (Pl. Ex. 22, at 47, 51-52; Tr. at 57). The Court does not find from the evidence that she held a “pink paper” in front of her face when she hit Mr. Carmely's motorcycle. (Pl. Ex. 22, at 58; Tr. at 57).

Mr. Carmely suffered grievous injury to his left leg. In addition, he sustained a wrist fracture, respiratory failure, traumatic shock, and hemorrhoidal problems, along with attendant mental health difficulties. (Pl. Ex. 61). Ultimately, Mr. Carmely underwent four surgeries for his leg and wrist, including surgeries to reset and repair the bones in his left leg and skin grafts. (Id.).

For months after his injury, Mr. Carmely was totally unable to walk. (Tr. at 71). But his condition improved over time. As of November 2018, Mr. Carmely could walk without a cane,


and though he occasionally did use a cane for support, he was able to enjoy many of the activities he did before his injury. (Def. Ex. 43; Def. Ex. 44; Def. Ex. 45; Def. Ex. 46; Def. Ex. 47; Def. Ex. 48; Def. Ex. 49; Pl. Ex. 61, at 905). Mr. Carmely has not fully returned to work. (Tr. at 86-88, 9293, 100-101; Tr. 3, at 35-38).

Before the collision, Mr. Carmely worked as a garage repair technician for a business he owns with Ms. Carmely, DC Garage Repair (the letters “DC” refer to “David Carmely”). (Tr. at 39-42; Tr. 2, at 3). As a garage repair technician, Mr. Carmely performed a wide array of services: he created and managed customer accounts, he visited repair sites, he assessed garage door issues, and he repaired the garage doors himself, a job which he virtually always completed on a ladder. (Tr. at 40-42).

Though Mr. Carmely still visits repair sites and is able to manage customer accounts, assess garage door issues, and provide support to other technicians, he may be unable to perform some repairs himself if those repairs require working from a ladder at unprotected heights. (Tr. 4, at 110111; Def. Ex. 43; Def. Ex. 44; Def. Ex. 45; Def. Ex. 46; Def. Ex. 47). Additionally, though Mr. Carmely is not working as technician, DC Garage Repair is more profitable than it was in 2017 -since Mr. Carmely's accident, the business hired two technicians to replace Mr. Carmely, and those technicians bring in considerable revenue. (Pl. Ex. 39; Tr. 3, at 37-40). Moreover, though at the time of the injury, Mr. Carmely owned 1% of DC Garage Repair and Ms. Carmely owned the other 99%, the two now own equal shares. (Pl. Ex. 34; Tr. at 43; Tr. 2, at 76-77).

Mr. Carmely will never fully recover from his injuries - as his attending physician, Dr. Hsu, testified, “his life was on a different path from the moment he was injured.” (Tr. 2, at 69). In addition, Ms. Carmely has suffered loss of consortium. (Tr. at 115).



The Court finds the following from the facts presented.

As a threshold matter, the United States is the proper defendant under 28 U.S.C. §§ 2671 et seq., because this is a negligence claim for money damages arising from or out of an alleged negligent or wrongful act of a federal employee committed within the course and scope of her employment. Thus, any negligence by Ms. Miller gives rise to liability on the part of the United States.

At trial, after the Plaintiff had been fully heard, the Court granted Defendant a directed verdict under Federal Rule of Civil Procedure 52 on the issue of gross negligence. See Carter v. Ball, 33 F.3d 450, 457 (4th Cir. 1994) (“A district court sitting without a jury may enter judgment as a matter of law against a party on any claim once the party has had a full opportunity to present evidence on that claim.”) (citing Fed.R.Civ.P. 52(c)).

North Carolina law requires a showing, by preponderance of the evidence, of intentional wrongdoing in order to sustain a claim of gross negligence. F.D.I.C. ex rel. Co-op. Bank v. Rippy, 799 F.3d 301, 314 (4th Cir. 2015) (citing Yancey v. Lea, 354 N.C. 48, 53-54, 550 S.E.2d 155, 158 (2001), superseded by statute on other grounds, N.C. G.S. § 1A-1, Rule 51(b) (2017)). The term “willful and wanton conduct” is often interchanged with gross negligence, and North Carolina courts describe gross negligence as “conduct done with conscious or reckless disregard for the rights and safety of others.” Rippy, 799 F.3d at 314. “An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others.” Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37-38 (1929), quoted in Parish v. Hill, 350 N.C. 231, 239, 513 S.E.2d 547, 551 (1999). An act is willful “when it is done purposely and deliberately


in violation of law or when it is done knowingly and of set purpose.” Foster, 197 N.C. at 191, 148 S.E. at 37.

In the car collision scenario, gross negligence is often shown by circumstances where at least one of three “rather dynamic” factors is present: (1) defendant is intoxicated, Foster, 197 N.C. at 191, 148 S.E. at 37; (2) defendant is driving at excessive speeds (e.g., over one hundred miles per hour), Baker v. Mauldin, 82 N.C.App. 404, 346 S.E.2d 240 (1986); or (3) defendant is engaged in a racing competition. Harrington v. Collins, 298 N.C. 535, 259 S.E.2d 275 (1979); Lewis v. Brunston, 78 N.C.App. 678, 338 S.E.2d 595 (1986). While North Carolina courts have not specifically held these scenarios to comprise an exhaustive list, these examples are an appropriate guide for gross negligence in car collision cases. Yancey, 354 N.C. at 53-54, 550 S.E.2d at 158; see also Blue v. Hill, No. 5:18-CV-00445-M, 2020 WL 4677669, at *6-7 (E.D. N.C. Aug. 12, 2020) (granting summary judgment on a gross negligence claim under North Carolina law where a driver caused a collision by unsuccessfully attempting to change lanes); Justice v. Greyhound Lines, Inc., No. 5:16-CV-132-FL, 2018 WL 1570804, at *3-6 (E.D. N.C. Mar. 30, 2018) (granting summary judgment on a gross negligence claim under North Carolina law where a driver caused a collision by driving too fast for conditions).

The only evidence adduced at trial that could support a finding of gross negligence is Mr. Carmely's unsubstantiated claim that Ms. Miller held a pink paper in front of her face while driving. The Court found Mr. Carmely's claim incredible, and thus, without any evidence on which to base a claim of gross negligence, the Court granted judgment as a matter of law on that claim


under Federal Rule of Civil Procedure 52.[2] The Court therefore addresses the remaining five legal disputes in turn.

1. Tammy Miller was negligent.

To prevail in a negligence action under North Carolina law, the burden is on the plaintiff to establish by a preponderance of the evidence the essential elements of negligence: (1) duty, (2) breach of duty, (3) proximate cause, and (4) damages. Camalier v. Jeffries, 340 N.C. 699, 706, 460 S.E.2d 133, 136 (1995); Miller v. Henry, 270 N.C. 97, 99-100, 153 S.E.2d 798, 800 (1967). A plaintiff's failure to meet the burden on any one element is fatal. Clark v. Perry, 114 N.C.App. 297, 305, 442 S.E.2d 57, 61 (N.C. 1994) (granting directed verdict) (citing Lowery v. Newton, 52 N.C.App. 234, 237, 278 S.E.2d 566, 570 (1981)).

Negligence and contributory negligence are mixed questions of law and fact. Smith v. N.C. Dep't of Transp., 156 N.C.App. 92, 97, 576 S.E.2d 345, 349 (2003). “The existence of a duty is entirely a question of law, and it must be determined only by the Court.” Peal by Peal v. Smith, 115 N.C.App. 225, 230, 444 S.E.2d 673, 677 (1994) (cleaned up). A motorist upon the highway owes a duty of reasonable care to all other persons using the highway “to maintain a lookout in the direction in which the motorist is traveling,” and thus, Ms. Miller owed that duty to Mr. Carmely. Watson v. White, 309 N.C. 498, 505, 308 S.E.2d 268, 273 (1983); see also Exum v. Boyles, 272 N.C. 567, 576, 158 S.E.2d 845, 852-53 (1968).


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