Chambers v. US, C.A. No. H-83-2090.
| Decision Date | 03 April 1987 |
| Docket Number | C.A. No. H-83-2090. |
| Citation | 656 F. Supp. 1447 |
| Parties | Gary CHAMBERS and Linda Chambers Individually and as next Friend for Gary Andrew Chambers, Jr., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
COPYRIGHT MATERIAL OMITTED
Craig Lewis, Fisher, Gallagher, Perrin & Lewis, Houston, Tex., for plaintiffs.
Andrea Larry and Keith Wyatt, United States Atty's. Office, Houston, Tex., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On April 6, 1981, a vehicle-pedestrian accident occurred in the 500 block of Woodmist in Houston, Texas, between a postal vehicle driven by Ramon Alviar and a five year old child, Gary Chambers, Jr. (Testimony of Gary Chambers and Ramon Alviar; police accident report; Plaintiffs' Exhibit No. 31).
2. Ramon Alviar was delivering mail at the time of the accident, and pursuant to stipulation between the Plaintiffs and the Defendant he was acting within the course and scope of his employment for the United States of America. (Testimony of Ramon Alviar and Admissions of Fact contained in Joint Pre-Trial Order).
3. The accident occurred as Alviar was backing up the postal vehicle in order to retrieve a piece of mail which had fallen from his vehicle. (Testimony of Ramon Alviar).
4. Mr. Alviar attempted to back up his postal vehicle by looking into his rearview and side mirrors. At no time did he look back over his shoulder through any of the three windows on the sides and back of the postal vehicle to see if anyone was behind him or to see if it was safe for him to back up to get the mail. (Testimony of Ramon Alviar).
5. Mr. Alviar did not have to back up the postal vehicle to retrieve the letter; he could have stopped the vehicle and walked back the ten or twelve feet to retrieve the letter. (Testimony of Ramon Alviar).
6. There was limited vision to the rear when Mr. Alviar attempted to back the vehicle by only employing the use of mirrors. (Plaintiffs' Exhibit 19, 1-63 consisting of photographs of a postal vehicle identical to the one involved in the accident in the action at bar).
7. Ramon Alviar was familiar with the fact that children frequently played on the street in the 500 block of Woodmist. (Testimony of Ramon Alviar).
8. On April 6, 1981, Ramon Alviar saw that children were playing in the street when he gave the mail to Gary Chambers, Jr. (Testimony of Ramon Alviar).
9. Ramon Alviar admitted that in driving a mail truck in a residential area frequented by children playing in the street, one must be constantly on the lookout for children. (Testimony of Ramon Alviar).
10. On April 6, 1981, Ramon Alviar was negligent in attempting to back the postal vehicle by only looking in the rearview and side mirrors. Such negligence was a proximate cause of the occurrence in question.
11. On April 6, 1981, Ramon Alviar was negligent in attempting to back the postal vehicle without looking over his shoulder and through the rear windows of the postal vehicle. Such negligence was a proximate cause of the occurrence in question.
12. On April 6, 1981, Ramon Alviar was negligent in failing to keep a proper lookout to the rear of the postal vehicle, and such negligence was a proximate cause of the occurrence in question.
13. On April 6, 1981, Ramon Alviar was negligent in failing to stop the postal vehicle and then retrieving the letter on foot by walking the three or four steps back to get the letter which was only ten or twelve feet from his vehicle. Such negligence was a proximate cause of the occurrence in question.
14. Since Ramon Alviar's negligence was a proximate cause of the occurrence in question, Ramon Alviar was not faced with a sudden emergency, and such doctrine is inapplicable to this case.
15. Since Ramon Alviar's negligence was a proximate cause of the occurrence in question, the accident made the basis of this suit was not an unavoidable accident, and such doctrine is inapplicable in this case.
16. The Chambers' home is located at the end of Woodmist, which is a dead end street. (Defendant's demonstrative exhibit of Woodmist plot drawing).
17. Mr. and Mrs. Chambers had warned and instructed their children about riding bicycles in the street. Such instructions included how far their children could ride down the street as well as warnings about riding their bicycles in the street after 3:30 PM or 4:00 PM when their neighbors would be driving home. (Testimony of Gary and Linda Chambers).
18. Immediately prior to the accident on April 6, 1981, Gary Chambers, Jr. was playing with his older brother and two or three other children. (Testimony of Ramon Alviar and Gary Chambers).
19. At the time of the accident, Gary Chambers, Jr., who was five (5) years old was riding his bicycle in the street. Gary was unsupervised, and he was playing in an area where his parents had previously told him not to play. (Testimony of Gary Chambers).
20. At the time of the accident, Gary Chambers, Jr.'s mother was at work. Gary's father, Gary Chambers, Sr., was inside the house watching television. (Testimony of Gary Chambers, Sr. and Linda Chambers).
21. Gary Chambers, Sr. was negligent in failing to supervise his son, Gary Chambers, Jr. Such failure to supervise was a contributing cause, but was not a proximate cause of the accident in question.
22. Gary Chambers, Sr. arrived at the scene of the accident to witness his son's body sprawled under the rear axle of the Defendant's vehicle, and the back of his son's head bloody from the injuries. (Testimony of Gary Chambers, Sr.).
23. When Gary Chambers, Sr. arrived at the scene of the accident, his son was conscious; his body was rigid; his son was crying out with a weird type of "screeching" sound; his eyes would roll back in his head; and he was vomiting various substances. (Testimony of Gary Chambers, Sr.).
24. Following the accident, Gary Chambers, Jr. was taken to the North Shore Hospital Emergency Room where he arrived unconscious but "arousable to deep stimuli." No Babinski sign was present, and the skull series films showed a fracture in the left occipital area. (Emergency Room records of North Shore Hospital, Plaintiffs' Exhibit 1).
25. Gary Chambers, Jr. was thereafter rushed via Life Flight helicopter to Hermann Hospital. In the Emergency Room at Hermann Hospital he was noted to be lethargic, but he did open his eyes on command. His pupils were equal, round, and reactive. Skull x-rays were taken which showed evidence of occipital skull fracture. (Hermann Hospital records; Plaintiffs' Exhibit 2). A definitive diagnosis could not be made, however, because separations in the skull are common in small children; the skull is made of several bones which grow together as an individual gets older. (Government Exhibit 2, pg. 9; Testimony of Dr. Jones). A diastasis of the left lambdoid suture in the occipital area is a minor injury involving the skull. It is not a brain injury. None of the functions controlled by the occipital area of the brain were found to be affected. (Testimony of Dr. Jones). Pain was noted in the left arm, Gary did not move his right arm on command, and his right arm did not respond to painful stimuli. (Hermann Hospital records, Plaintiffs' Exhibit 2). In the Intermediate Care Unit at Hermann Hospital he was noted to be following commands. There were no motor deficits, no blood behind the eardrum, the Babinski reflex was normal, the cranial nerves were intact, and he exhibited an appropriate response to pain. (Testimony of Dr. Jones; Hermann Hospital records; Plaintiffs' Exhibit 2, pg. 9).
26. Skull x-rays showed separation of the sutures in the back of the head. (Testimony of Dr. Jones).
27. Dr. Jones saw Gary Chambers, Jr. again on April 7, 1981. He found no neurological deficit, no atrophy of muscles, and no paralysis. (Testimony of Dr. Jones).
28. While in the Intermediate Care Unit at Hermann Hospital, Gary Chambers, Jr. vomited blood on several occasions. (Testimony of Dr. Jones, Gary Chambers, Sr. and Hermann Hospital records, Plaintiffs' Exhibit 2).
29. On April 14, 1981, Gary Chambers, Jr. was readmitted to Hermann Hospital because of a large swollen area that had developed behind his left ear. The doctor diagnosed that Gary Chambers, Jr. had a cephalohematoma, a condition in which blood had accumulated between the skull and the scalp. His head was again x-rayed and the radiologist noted: (Testimony of Dr. Jones, Gary Chambers, Sr., Linda Chambers, and Hermann Hospital records, Plaintiffs' Exhibit 2).
30. Dr. Jones saw Gary for a final visit on May 26, 1981, about seven weeks after the accident. At that time, Dr. Jones noted that the cephalohematoma had resolved itself and that Gary Chambers, Jr. was neurologically intact. Dr. Jones reported that Gary was doing fine and that he was riding his bicycle again. (Defendant's Exhibit 3, pg. 3; Testimony of Dr. Jones).
31. Following the accident and the Hermann hospitalizations, Gary Chambers, Jr. began complaining of severe headaches. The headaches experienced by Gary Chambers, Jr. would be accompanied by complaints of pain, then vomiting, and thereafter lying down wherever he was at the time. (Testimony of Gary Chambers, Sr., Linda Chambers, and Dr. Jones).
32. The continuing headaches of Gary Chambers, Jr. caused his parents to take him to see Dr. Stuart Yoffe, their pediatrician, who hospitalized Gary Chambers, Jr. at Northwest Medical Center on June 27, 1981. An EEG performed during that hospitalization by Dr. Meyer L. Proler showed that "the patient's electrogram is moderately slow for age." (Testimony of Dr. Jones and Northwest Medical Center Hospital Records, Plaintiffs' Exhibit 7).
33. Gary...
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