Cary v. United States
| Decision Date | 20 August 2013 |
| Parties | J.C. CARY PLAINTIFF v. UNITED STATES OF AMERICA DEFENDANT |
| Court | U.S. District Court — Eastern District of Arkansas |
Pursuant to Federal Rule of Civil Procedure 52(a), the Court makes the following specific findings and conclusions:
1. Plaintiff J.C. Cary brings this action against defendant, the United States of America, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et. seq., for damages resulting from the alleged negligence of Beverly McCabe-Sellers, an employee of the United States Department of Agriculture.
2. This case involves a motor-vehicle accident that occurred in Arkansas. In actions brought under the FTCA, courts are bound to apply the law of the state in which the acts complained of occurred. See, e.g., Goodman v. United States, 2 F.3d 291, 292 (8th Cir.1993). Here, the incident complained of occurred in Arkansas, and it is that state's law that will be applied to Mr. Cary's claims.
3. To establish a prima facie case of negligence, Mr. Cary must demonstrate that the defendant breached a standard of care, that damages were sustained, and that the defendant's actions were a proximate cause of those damages. Barriga v. Arkansas and Missouri R. Co., 79 Ark. App. 358, 360-61, 87 S.W.3d 808, 810 (2002).
4. Mr. Cary, a citizen of Arkansas, was traveling north on Highway 49 in Brinkley, Arkansas, on July 9, 2009, when an automobile owned by the United States Department ofAgriculture and driven by its employee, Ms. McCabe-Sellers, exited Interstate 40 at its intersection with Highway 49.
5. After Ms. McCabe-Sellers exited the interstate, she turned right or south onto Highway 49.
6. Thereafter, Ms. McCabe-Sellers came to a stop on Highway 49 and turned left into the McDonald's restaurant parking lot.
7. Mr. Cary was traveling north bound on Highway 49 at this time.
8. This area was under heavy construction at the time, including the use of temporary lanes.
9. The van Ms. McCabe-Sellers was driving collided with the automobile driven by Mr. Cary.
10. The Court determines that Ms. McCabe-Sellers was negligent in connection with the motor-vehicle accident at issue. Section 27-51-502 of the Arkansas Code provides:
The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard. The driver, after having so yielded and having given a signal when and as required by this chapter, may make the left turn after all other vehicles approaching the intersection which constitute an immediate hazard shall have cleared the intersection.
Arkansas Model Jury Instruction (Civil) 903 provides that a violation of this statute, although not necessarily negligence, is evidence of negligence to be considered along with all of the other facts and circumstances in the case. See Bridgforth v. Vandiver, 225 Ark. 702, 707, 284 S.W.2d 623, 625 (1955) ().
11. The Court credits the testimony of Officer Arnold Leon who testified that he saw no indication of any sort to suggest that Mr. Cary was driving more than 40 miles an hour, which is the posted speed limit at the intersection, and that, from the intersection where the accident occurred, an individual can see probably three and a half to four blocks down the road with unobstructed vision.
12. For these reasons, the Court determines the collision was solely caused by the negligence of Ms. McCabe-Sellers which is imputed to defendant, United States of America.
13. As a result of the collision, the van and Mr. Cary's vehicle collided causing property damage to Mr. Cary's automobile and injury to Mr. Cary's person.
14. Ms. McCabe-Sellers was not injured as a result of the collision, and her passenger was not injured as a result of the collision.
15. Mr. Cary denied medical treatment at the time of the collision.
16. The Court determines that the collision at issue in this case was a proximate cause of at least a portion of Mr. Cary's claimed damages. Proximate cause is a cause which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have been reached. Barriga, 79 Ark. App. at 361, 87 S.W.3d at 810. Arkansas Model Jury Instruction (Civil) 501. Proximate cause in a negligence action is for the factfinder to decide. Barriga, 79 Ark. App. at 361, 87 S.W.3d at 810. "[P]roximate causation becomes a question of law only if reasonable minds could not differ." Id. Discussing proximate causation, the Arkansas Supreme Court has determined:
The question of proximate cause, given negligence, is more often than not a question of fact, to be determined by viewing the attendant circumstances. It has been said that proximate cause is a rule of physics and not a criterion of negligence. Proximate cause may be shown by circumstantial evidence. Such evidence is sufficient if the facts proved are of such a nature, and are so connected and related to each other, that the conclusion therefrom may be fairly inferred. In order to pose a jury question on the causal connection between negligence and an injury, it is not necessary that the evidence exclude every other reasonable hypothesis. It is only necessary that there be evidence that would tend to eliminate such other causes as may fairly arise from the evidence, and that the jury not be left to speculation and conjecture in deciding between two equally probable possibilities. But it is not necessary, in order to have sufficient evidence to support a finding of proximate cause, that circumstantial evidence exclude a concurring efficient proximate cause, as distinguished from a totally independent and unrelated cause.
St. Louis Sw. Ry. Co. v. Pennington, 261 Ark. 650, 662-63, 553 S.W.2d 436, 441-42 (1977) (internal citations omitted).
17. Since the collision, Mr. Cary has suffered neck pain that has caused him to undergo medical treatment, miss work, and experience pain and suffering. He testified he was stiff and sore after the accident but believed his symptoms would clear up. They did not clear up. He testified that, instead, his symptoms became worse in a matter of days after the accident when his neck froze up while he was taking his mother to a doctor's appointment in Memphis, Tennessee.
18. Mr. Cary has a medical history of cervical disc degeneration, which is known to cause chronic arthritic neck pain.
19. Mr. Cary had an asymptomatic degenerative neck condition that subjected him to greater injury than a person without that condition or, in the alternative, his condition became symptomatic as a proximate result of this collision. See, e.g., Kudabeck v. The Kroger Co., 338 F.3d 856 (8th Cir. 2003) ().
20. Based on all of the testimony and evidence presented, the Court determines Mr. Cary's injury is permanent.
21. Since the motor vehicle accident, Mr. Cary has received medical treatment, including treatment from chiropractors, from doctors with the University of Arkansas for Medical Sciences ("UAMS"), and Dr. William Ackerman, a pain-management physician in Little Rock, Arkansas.
22. Dr. William Ackerman saw Mr. Cary for the first time on March 24, 2011. His last visit was May 2012. At that time, Dr. Ackerman prescribed Mr. Cary lidocaine ointment for several months and understood Mr. Cary was going to UAMS for other treatment. Dr. Ackerman did request that Mr. Cary return eight weeks from his May 2012 visit, and Mr. Cary did not return.
23. Dr. Ackerman testified by deposition that, in his medical opinion, Mr. Cary's complaints were related to his motor vehicle accident. He assessed that Mr. Cary's complaints included those regarding his cervical spine and lumbar spine, but that his complaints regarding his lumbar spine result from a chronic degenerative problem, not attributable to the accident. He further testified that he believes it would be impossible to determine with any degree of certainty what pain is attributable to Mr. Cary's pre-existing medical condition and what pain is attributable to the motor vehicle accident.
24. Medical records and several witnesses, including but not limited to Tim Heavner, Tanya Sandage, and Elva Waldrob, who have known or worked with Mr. Cary both before andafter this accident, provided evidence that his injuries are significant, are ongoing, and more likely than not resulted in part from this collision
25. Mr. Cary himself attributes his injuries to this accident. He testified in part that he was able to do his job without pain in his head or neck before this accident.
26. The Court credits only for purposes of demonstrating his efforts to mitigate his damages Mr. Cary's testimony that he paid out-of-pocket for much of the treatment he sought after the accident in an effort to reduce the effects of his injuries and provide pain relief.
27. Mr. Cary has a remote history of addiction issues. He also has a commercial driver's license, which is required for his job. For these reasons, he has been reluctant to rely upon narcotic pain medications during the day.
28. Mr. Cary smoked before the collision and continued to smoke during his recovery from the accident. He stopped smoking only after his heart attack. Dr. Ackerman reported...
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