Escoto v. United States

• Decision Date: 13 March 2012
• Docket Number: No. CV 10–2223 (ADS)(ETB).,CV 10–2223 (ADS)(ETB).
• Citation: 848 F.Supp.2d 315
• Parties: Dilcia ESCOTO, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

848 F.Supp.2d 315

Dilcia ESCOTO, Plaintiff,

v.UNITED STATES of America, Defendant.

No. CV 10–2223 (ADS)(ETB).

United States District Court,

E.D. New York.

March 13, 2012.

Cannon & Acosta, LLP, by: Gary Small, Esq., of Counsel, Huntington, NY, for Plaintiff.

Loretta E. Lynch, United States Attorney for the Eastern District of New York, by: Diane Leonardo Beckmann, Esq., Assistant U.S. Attorney, of Counsel, Central Islip, NY, for Defendant.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This is an action to recover damages for personal injuries sustained by the plaintiff Dilcia Escoto (the “plaintiff” or “Escoto”) in a motor vehicle collision with a mail delivery truck. The action is brought pursuant to the Federal Tort Claims Act (“FTCA”) against the defendant the United States of America (the “defendant”), the owner of the mail delivery truck, which was operated by its employee, letter carrier Bonnie L. Gross. A two day bench trial was held on December 28 and 29, 2011. The accident occurred on November 25, 2009, at approximately 10:00 am, at or near the intersection of three streets, Wilson Boulevard, Smith Street and Brier Street. The location of the accident is important because it did not occur at the usual two street crossed intersection. There is a diagram in evidence, Dft's Ex. H–8, which shows that Wilson Boulevard is a generally north-south street. Wilson Boulevard is intersected by two other streets, Smith Street on the south and Brier Street on the north. The two side streets intersect Wilson Boulevard and are a short distance apart as they intersect with Wilson Boulevard—(see the diagram annexed as Exhibit A). Shortly before the accident, the plaintiff was proceeding in a westerly direction on Smith Street approaching Wilson Boulevard. Also, shortly prior to the accident, the mail truck was being operated by Bonnie Gross in an approximate southerly direction on Wilson Boulevard approaching Brier Street.

The issues in this non-jury trial are: (1) the liability, if any, of the defendant United States of America for the actions of the driver of the mail truck; (2) the liability, if any, of the plaintiff on the issue of comparative negligence; and (3) damages, if there be a recovery. Also involved in this case—and it is a major issue—is whether the plaintiff sustained a “serious injury” within the provisions of the relevant no-fault law.

For the reasons set forth below, the Court finds that the negligence of the defendant, the United States by its driver Bonnie L. Gross was the sole cause of the accident. However, the Court also finds that the plaintiff did not sustain a “serious injury” within the provisions of the applicable No Fault Law. The Court will review all of these findings in order to establish a record for all purposes.

I. The Trial

A. The Plaintiff's Case

The plaintiff Dilcia Escoto testified with the aid of an interpreter. In places, the Court found her testimony to be somewhat unclear, which had to be remedied. She was involved in other motor vehicle accidents in 2004 and 2006. She was a passenger in one of these occurrences. In those prior accidents, the plaintiff sustained injuries to her neck and back and to her left knee and left ankle. As to these prior accidents, the plaintiff testified that she did not suffer any injury to her right knee, which is the injury involved in this case.

On November 25, 2009, a weekday, at approximately 9:30 to 10:00 am, the plaintiff was coming from her son's school after dropping him off. She was familiar with the area—she knew these roads and had driven there before. The weather was clear and dry. In her car was her baby in the back of her vehicle. At some point she entered Smith Street in Central Islip, a residential area. The plaintiff drove in a westerly direction on Smith Street to the intersection of Smith Street and Wilson Boulevard. There was a stop sign at that intersection for her vehicle on Smith Street. The intersection of Wilson Boulevard and Brier Street is slightly north of the intersection of Wilson Boulevard and Smith Street. It is not a typical “T” intersection in that the two intersecting streets onto Wilson Boulevard are a short distance apart. The plaintiff brought her vehicle to a full stop on Smith Street at its intersection with Wilson Boulevard. She was stopped at that intersection for approximately five seconds. At that time she saw the postal truck on her right side. The postal truck was proceeding south on Wilson Boulevard. The postal truck also had a stop sign at the intersection of Wilson Boulevard and Brier Street. So that both drivers approached the irregular intersection with stop signs facing them.

The plaintiff intended to go from Smith Street to Brier Street, which required that she turn right onto Wilson Boulevard and then make an immediate left turn onto Brier Street. She never made the left hand turn onto Brier Street because of the accident.

After making a full stop on Smith Street for about five seconds, the plaintiff made a right turn to enter Wilson Boulevard. It was her intention to go onto Wilson Boulevard only for a very short distance and then make a left turn onto Brier Street. The accident occurred after the plaintiff made a right turn onto Wilson Boulevard. She was then going straight on Wilson Boulevard and had not reached Brier Street when the accident occurred. Gross later testified that the accident occurred after the postal truck was past or south of Brier Street. The plaintiff testified that she saw the postal truck driver “reading some letters” as her vehicle was at the stop sign heading south on Wilson Boulevard. As stated previously, the plaintiff's testimony, by way of an interpreter was not always clear and understandable, which required some remedial efforts. However, the following is the key portion of her testimony as to the happening of the accident.

Q. Now, the post office truck, did you see that vehicle before the accident over near the stop sign?

A. Yes.

She was like a car length behind the stop sign and she was reading some letters.

THE COURT: She was what?

THE INTERPRETER: Reading some letters.

BY MR. SMALL:

Q. When you say she, you're talking about the driver of the postal service vehicle?

A. Correct.

* * * * * *

BY MR. SMALL:

Q. When you were—I'll back up a second.

Let's go back to the stop sign where you were stopped.

Did there come a time you made a right-hand turn?

A. Okay.

Q. Can you tell us what happened after that please?

A. Okay. Like I said, I was stopped. I had this car on my left side. He had the stop sign. He stopped the car. Then he proceeded to cross over.

After that, I saw to my right and there was a truck from the postal service and it was like a car length behind the stop sign and she was reading some letters.

So after I stopped for five seconds, I then went ahead and made a right turn as I was going then suddenly she just went out and didn't stop at the stop sign.

Q. Did a collision occur at that time?

A. Correct.

Q. To what part of both vehicles?

A. She hit me in front of my vehicle.

Q. What part of the postal service truck was involved in the accident, if you know?

A. The left side.

THE COURT: The left side did you say?

THE INTERPRETER: Yes.

(Tr. at 74, 75).^*

The plaintiff's car was a white BMW. The collision caused little damage to the front of the vehicle. A photograph of the Escoto vehicle is annexed to this decision as Exhibit B. Asked to describe what happened to her as a result of the impact, the plaintiff testified that she hit her neck, lower back and right knee. Her right knee struck the side of the car.

Police and postal services personnel arrived at the scene. Escoto does not speak English and could not communicate with the police. Escoto called her sister who came to the scene, picked her up and the baby and took the baby home. Her sister then drove Escoto to Southside Hospital. At the hospital she complained of pain in the neck, back and right knee. Following the visit to the hospital, the plaintiff was treated by two chiropractors, Drs. Simmetti and Martin. Escoto had “a lot of pain” in the right knee. In addition, there was a “clicking” in the right knee and every time she walked, the right knee buckled. The chiropractor referred her to Dr. Christopher Durant, an orthopedic surgeon.

Dr. Durant referred the plaintiff for an MRI prior to surgery on her right knee which “hurt her a lot.” Thereafter, Dr. Durant performed surgery on the plaintiff's right knee at North Shore Long Island Jewish Hospital. After the surgery she was treated by Dr. Durant on only one occasion. She was also treated for her back and neck by Dr. Martin, the chiropractor for seven to eight months. In October 2010 she started work for an electronic manufacturer. She was provided with a job in which she could sit. However, that sitting job did not last long and she was laid off in May 2011. The plaintiff has not worked since that time. Escoto was asked about her present complaints. She responded in the following manner:

Q. Following the accident of November 2009, can you tell us all the limitations that you had in your daily activities because of your knee injury?

A. Can I play with my baby, run with him, I can't because my knee hurts me a lot. I can not wear high heels. I cannot, like I said, play with the other children like when they ask me to go to the park because I cannot be too long walking, standing. And I cannot go to the gym because all the exercises involved with foot and legs, running and things like that.

Q. Are you able to have a job where you stand up and lift heavy items?

A. No.

(Tr. at 91.)

On cross-examination, the plaintiff again described her route prior to the accident. She was proceeding from Smith Street to Brier Street. In order to do that she had to stop at the stop sign on Wilson Boulevard and then make a right turn onto Wilson Boulevard and then a left on Brier Street. The accident occurred on Wilson Boulevard before she reached...