Dershowitz v. United States
| Decision Date | 08 April 2015 |
| Docket Number | 12-CV-08634 (SN) |
| Parties | NATHAN DERSHOWITZ, Executor of the Estate Of MARILYN DERSHOWITZ, deceased, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Southern District of New York |
The plaintiff Nathan Dershowitz, as executor of the Estate of Marilyn Dershowitz, filed suit against the defendant United States of America, pursuant to the Federal Torts Claim Act (the "FTCA"), 28 U.S.C. §§ 1346(b) and 2671, et seq., for the alleged wrongful death of his wife, Marilyn Dershowitz. Mrs. Dershowitz died on July 2, 2011, as a result of injuries she sustained in a tragic bike accident that same day. The plaintiff alleges that Ian Clement, a U.S. Postal Service (the "Postal Service") driver who was on-duty and driving a Postal Service truck (the "Postal Truck"), collided with Mrs. Dershowitz, and that Mr. Clement was negligent in his operation of his vehicle, causing the accident and her death. The plaintiff also alleges that the Postal Service was negligent for its placement of a Postal Service trailer (the "Postal Trailer"), which was directly adjacent to where the accident occurred, and protruded over the sidewalk and into the street, obstructing traffic. In turn, the defendant alleges that Mrs. Dershowitz's own actions were a superseding proximate cause of the accident, or, at the very least, a substantial contributing factor.
The Court has federal question jurisdiction over this case pursuant to 28 U.S.C. § 1331.
The parties consented to my jurisdiction pursuant to 28 U.S.C. § 636(c), and the Court conducted a bench trial February 3, 2015 through February 13, 2015.1 Having considered all of the evidence and assessed the credibility of the witnesses, the Court makes the following findings of fact and reaches the following conclusions of law pursuant to Federal Rule of Civil Procedure 52. The Court finds the government 100% liable. Based on the conclusions below, the parties are directed to compute the final award, broken down into past and future amounts (discounted to present value), and submit their final calculations to the Court within 14 days of this opinion.
The accident occurred at approximately 11:59:52 a.m., on Saturday, July 2, 2011, on West 29th Street between Ninth and Tenth Avenues in Manhattan, New York. The contested events span from 11:59:38 a.m. to 11:59:52 a.m., no longer than fourteen seconds.
Four video cameras, attached to Postal Service facilities to the north and south of the accident, captured different angles of the relevant portion of 29th Street within the time period in question. They did not capture every portion of the roadway, however, and did not capture the area of the actual impact or Mrs. Dershowitz in the crucial seconds surrounding the accident. The Postal Truck driver, Mr. Clement, was beyond the Court's subpoena power and did not testify at trial, although portions of his September 27, 2013, deposition testimony were entered into evidence.
The accident occurred on West 29th Street between Ninth and Tenth Avenues. Twenty-Ninth Street runs east to west and, on that block, is a single lane street, although there is room for two cars to drive side-by-side for the first 175 feet of the street. (Tr. 165:7-8; Pl's Ex. 14E). The street is thirty-four feet wide curb-to-curb. (Tr. 323:20-21.) There is no standard width for a single lane street in New York City, but dual or multi-lane roads are required to be delineated by white dotted lines, which 29th Street does not have. (Tr. 326:23-327:14; Clement Dep. 107:8-12.) The street has no bike lane. (Id. at 143:2-4.)
Postal Service facilities known as the Morgan Mail facilities extend the length of the block on both the south and north sides of the street. (Tr. 51:17-22; Pl's Ex. 14E.) One hundred and seventy-five feet from the west curb of Ninth Avenue, there is an overpass above 29th Street that connects the two Morgan Mail facilities. (Tr. 475:14-18, 478:4-7; Pl's Ex. 14E.) On the day of the accident, up until the overpass, there were no vehicles parked on either side of the street. (Pl's Ex. 14E.) Mr. Clement stated that a sign on the overpass indicated that the speed limit was five miles an hour. (Clement Dep. 111:17-112:6.)
Looking west on 29th Street from Ninth Avenue, there are two no parking signs affixed to the overpass above the southern (left) and northern (right) curbs. (Tr. 478:19-479:9; Gov't Ex. 23.) See also Appendix A. The signs were posted by the Postal Service. (Tr. 479:6.) On the southern (left) side of the overpass, the sign states: "THIS SIDE OF THE STREET U.S. POSTAL TRAILER PARKING ONLY." (Tr. 59:15-18; Gov't Ex. 23.) Under the sign and continuing westward, U.S. Postal Service trailers were parked, in a row, parallel to the southern curb and the flow of traffic. (Tr. 315:21-24; see Trailer labeled "019" in Pl's exhibit 14Q.) Thesetrailers were eight feet wide and parked a couple of inches from the curb. (Tr. 322:17-18.) They are parked there "constantly." (Clement Dep. 108:14-18.)
On the northern (right) side of the overpass, the sign states: (Tr. 60:2-3; Gov't Ex. 23.) Under this sign, the relevant Postal Trailer was backed into a loading dock, perpendicular to the street: it blocked the curb entirely and extended south six feet and three inches into the street. (Tr. 54:23-55:24, 315:21-24, 316:7-11, 321:24-322:1; Pl's Exs. 3C, 14Q, 14S.) See also Appendix B. Mr. Clement, Postal Police Officer Rosemary Jones, and New York Police Department Officer Scott Doerzbacher all stated that the Postal Service trailers were regularly parked in such a manner. (Tr. 57:11-13, 61:1-5, 316:20-317:6; Clement Dep. 109:24-110:6.) The Postal Trailer was 200 feet from the west curb of Ninth Avenue, or 25 feet past the beginning of the overpass. (Tr. 475:21-23.)
One effect of the Postal Trailer's positioning was that pedestrians on the northern (right) sidewalk or bikers on the right side of the street would have to go around the trailer, or more than six feet left into the roadway, to continue down 29th Street. A second effect of the Postal Trailer was that, in conjunction with the trailers parked parallel to the curb on the southern side of the street, it narrowed the roadway from its unobstructed width of 34 feet to no more than 19 feet and nine inches. (Tr. 326:1-3.) As a result, traffic had to funnel, or merge, into one center lane to continue down 29th Street - whereas cars were able to drive side-by-side on the previous 29th Street block, which is multi-laned, or even on the same block of 29th Street before reaching the overpass. (Tr. 58:20-59:5, 281:15-18; Pl's Ex. 14Q.)
There are three other pertinent markers on the southern (left) side of 29th Street before the Morgan Mail overpass. First, there is a storm drain 65 feet west of the Ninth Avenueintersection. (Tr. 489:7-9.). Second, there is a square window in the southern cement wall of the Morgan Mail facility, past the storm drain. (Pl's Ex. 14E; Appendix B.) This is a security personnel station, known as "Post 4." (Tr. 53:13-23; Pl's Ex. 14E.) Third, just west of Post 4, but before the overpass and the parallel parked trailers, is a driveway. (Tr. 53:24-54:1; Pl's Ex. 14E.) This is an exit-only driveway for Postal Service vehicles. (Tr. 54:7-9.) To enter the southern Morgan Mail facility, vehicles continue west on 29th Street, under the overpass, to a driveway entrance that is closer to Tenth Avenue, then loop back - or east - within the building, and exit through the driveway next to Post 4. (Tr. 54:10-18; Clement Dep. 101:22-102:11.)
On July 2, 2011, the Saturday of the July 4th holiday weekend, the Dershowitzes set out from their apartment for a bike ride. (Tr. 160:20, 161:9-10.) Mrs. Dershowitz was a "very comfortable" and avid biker. (Tr. 161:23-162:14.) Mr. Dershowitz testified that, (Id.) She regularly biked to and from work during the week, and the couple would ride together a couple of times a week, as well. (Tr. 161:23-162:5-14.) Mrs. Dershowitz rode a 26-inch Fuji bike with thick tires, although not as thick as those on a mountain bike. (Tr. 162:15-21.) Her bike had reflectors on each pedal and under the seat in back. (Tr. 164:1-4.) It also had a bike basket, which she often used to pick up groceries on the way home from work. (Tr. 173:6-8.) Mr. Dershowitz rode a standard 28-inch hybrid bike. (Tr. 163:3-4) The Dershowitzes had serviced both of their bicycles that spring. (Tr. 163:8-13.)
It was a "very pretty, sunny, nice Saturday" with dry road conditions. (Tr. 164:16-20; Clement Dep. 98:15-99:7.) Their plan was to bike to the West Side promenade along the Hudson River where "Marilyn had never ridden." (Tr. 164:24-25.) They set out from their apartment in Tudor City, located between 40th and 44th Streets and between First and Second Avenues in Manhattan. (Tr. 160:10-12.) Their first stop was a bicycle shop to check the air pressure in their bicycle tires. (Tr. 163:16-19.) They then biked down Second Avenue and continued across, or west, on 29th Street. (Tr. 165:4-6, 11.) Both Dershowitzes were wearing bicycle helmets. (Pl's Ex. 1.)
On 29th Street between Second and Fifth Avenues, there were few to no cars. (Tr. 165:22-25.) Between Fifth and Sixth Avenues, there were some commercial vehicles, and by Ninth Avenue, there were fewer cars again. (Id.) When Mr. Dershowitz reached the intersection of 29th Street at Ninth Avenue, he biked through it before the light changed and continued west to Tenth Avenue. (Tr. 167:6-15.) To pass...
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