Hodder v. U.S., 01 CV 8086(CLP).

Decision Date29 April 2004
Docket NumberNo. 01 CV 8086(CLP).,01 CV 8086(CLP).
Citation328 F.Supp.2d 335
PartiesFrancisca HODDER and Peter Hodder, Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Eastern District of New York

Harold Chetrick, New York, NY, for Plaintiffs.

Elliot M. Schachner, United States Attorney's Office, Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

POLLAK, United States Magistrate Judge.

On November 29, 2001, plaintiffs Francisca Hodder and Peter Hodder commenced this action, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1291, 1346(b), 1402, 2401, 2402, 2671-2680, for injuries sustained when the vehicle driven by Ms. Hodder struck the vehicle driven by a United States Postal Inspector who was acting within the course of his employment at the time of the accident.

On February 4, 2003, the parties consented to trial before the undersigned. Based on the evidence presented at trial, this Court makes the following findings of fact and conclusions of law.

FACTUAL FINDINGS

On April 17, 2001, at approximately 11:20 a.m., Francisca Hodder, 53 years of age, was driving home on Fourth Avenue in Brooklyn from her job as a nutrition consultant with the New York City Department of the Aging. (Tr. at 2, 4, 9).1 It was a bright sunny day and the roadways were dry. (Id. at 9, 350).

According to the testimony, Fourth Avenue consists of two lanes of traffic in both directions and a parking lane on each side of the avenue. (Id. at 10). As Ms. Hodder was proceeding southbound on Fourth Avenue heading towards the Third Street intersection, she was proceeding in the far left lane with no cars in front of her vehicle. (Id.) Ms. Hodder testified that as she approached the intersection, she noticed that the traffic signal in her direction was green. (Id. at 11). At this point, she was approximately six car lengths from the intersection. (Id.) She testified that as she was proceeding into the intersection, traveling at approximately 30 miles per hour, she saw another vehicle, a minivan, coming from her right, approximately two car lengths away, traveling at a speed of approximately 40 miles per hour. (Id. at 11-12). She testified that by the time she could apply the brakes, the minivan was already in the intersection. (Id. at 13). She applied her brakes hard, striking the driver's side of the minivan with the front of her vehicle. (Id.)

Although she was wearing her seatbelt, the impact caused her to strike her chest against the steering wheel, and her head and neck snapped backwards. (Id.) She testified that she was "unconscious" for approximately "ten minutes." (Id. at 14).

At some point thereafter, the police from the 78th Precinct arrived and Ms. Hodder told them that the other driver ran the red light and that she was dizzy. (Id.) She claims that she was placed on a long board by the emergency service technicians and taken by ambulance to New York Methodist Hospital, where an EKG was performed and x-rays were taken of her neck and shoulder. (Id. at 15-16).

The defendant's witnesses' version of events differed somewhat from that of Ms. Hodder. Thomas Kelly, who was a United States Postal Inspector at the time of the accident,2 testified that on April 17, 2001, he was part of a team of criminal investigators assigned to conduct surveillance of another Postal Service employee. (Id. at 266, 277, 316). This other employee, who was allegedly injured on the job and was receiving disability benefits from the Postal Service, was believed to be faking or exaggerating his injuries. (Id. at 266, 281, 316). It was believed that not only was he employed at another job, but he was suspected of performing physical activity beyond his claimed limits, in violation of 18 U.S.C. § 1920. (Id. at 266-67, 316).

On the day of the accident, the team, which consisted of Inspector Kelly, Inspector Albert Patton, Robert Benson, and Michael Riccuito, was attempting to determine the activities of this individual when he was away from his home. (Id. at 266, 316-17, 324-25). Thus, the goal of the investigating team that day was to conduct surveillance on this individual, to follow him to see where he went and what he did during the hours he was away from home. (Id. at 316-17, 327). If the individual was observed committing a felony in their presence, the inspectors were authorized to arrest him. Both Kelly and Patton testified that they were authorized to carry a weapon and handcuffs and to effect arrests for felonies committed in their presence. (Id. at 268, 315-16).

On the morning of the accident, the team had begun their surveillance at the suspect's home and at approximately 11:15 a.m., they were in the process of following the suspect's vehicle as it proceeded east on Third Street. (Id. at 318). According to Patton, the case agent on the investigation each of the members of the team was in his own unmarked vehicle equipped with emergency lights and sirens. (Id. at 318-19). Kelly, who was driving a green Ford Explorer, was in the first vehicle directly behind the suspect; directly behind Kelly was Patton in a maroon Chrysler van, followed by Benson in a green Chrysler van and Riccuito in a white Dodge van. (Id. at 332).

According to Kelly, he was approximately a block or more behind the subject's car when the subject cleared the intersection of Fourth Avenue and Third Street. By the time Kelly reached the intersection, the light was red. (Id. at 286). The subject vehicle was approaching Sixth Avenue at this point, and Kelly was beginning to lose sight of the car. (Id. at 285, 320). Kelly testified that he stopped his car at the red light, turned on his lights and siren, and looked to his left. (Id.) When he saw that the right and center lanes of traffic had stopped, he "crept" through the intersection, traveling at no more than five miles per hour. (Id. at 273).

Inspector Patton, who was one car length directly behind Kelly, confirmed that when Kelly reached the intersection, he came to a full stop as did Patton. (Id. at 334, 336). They both put on their lights and sirens and waited approximately 30 seconds for the traffic already in the intersection to clear and for the traffic in both directions on Fourth Avenue to stop. (Id. at 320, 322). Patton testified that after observing that the vehicles in the southbound and northbound lanes had stopped, they both proceeded into the intersection at 5 to 10 miles per hour. (Id. at 320, 345, 348). As Kelly proceeded approximately one to one and a half lanes into the intersection, he was struck on the driver's side by Ms. Hodder's vehicle. (Id. at 348, 352). Inspector Patton estimated that Ms. Hodder was traveling at a rate of 30 miles per hour and hers was the only car that passed through the intersection after all the other traffic had cleared. (Id. at 350).

After the accident, Kelly pulled his car to the curb on the other side of the intersection while Inspector Patton pulled his vehicle over to the right side of the road and walked over to Ms. Hodder's Nissan. (Id. at 291, 353-54). Patton spoke to Ms. Hodder and asked her if she needed medical attention. (Id. at 355). The first time he asked, she did not respond. (Id.) The second time he asked, she responded, "Okay," which Patton understood to mean she was not hurt. (Id. at 355-56). Then she said, "the light was green." (Id. at 355). Patton then suggested that she pull her car out of the way and asked her if she wanted one of them to do it for her. (Id. at 373). She declined his offer and proceeded to pull her car to the curb. (Id.) Patton then stayed by her vehicle until the ambulance and the police arrived, which was approximately fifteen minutes later. (Id. at 362).

Inspector Patton testified that while waiting for the police to arrive, Ms. Hodder spoke to a mechanic from a nearby garage who was talking to her about repairs to her car. (Id. at 363). She also told Patton that she was going to call her son on her cell phone. (Id.) Although Patton indicated in his report that she had called her son, he testified that he did not actually see her use her cell phone. (Id. at 373-75). Nor could he recall anyone else approaching her car. (Id. at 363). Neither he or Kelly ever observed Ms. Hodder to be unconscious. (Id. at 275, 323). Moreover, contrary to her claim that she had to be carried to the ambulance on a back board, both Kelly and Patton, whose testimony this Court credits, testified that Ms. Hodder walked to the ambulance. (Id. at 293, 364). The following day, Ms. Hodder called Kelly to find out who Frank Randazzo was. (Id. at 297). Kelly testified that "Frank Randazzo," which was the name of the alleged owner of Kelly's Postal Service car, was a fictitious name. (Id.)

According to both Kelly and Patton, they did not resume surveillance of the suspected Postal Service employee that day because by the time the accident had occurred, the suspect's vehicle had long since disappeared. (Id. at 298, 367). When asked why he or the other members of the team did not proceed to follow the suspect after Kelly's vehicle was hit, Inspector Patton testified that his first priority was to see that everyone was all right. (Id. at 367). He testified, however, that the investigation into the Postal Service employee continued and on a subsequent occasion, surveillance was resumed. (Id. at 371-73).

DISCUSSION
1) Standards

Under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), tort liability for an accident based on the alleged negligence of an employee of the United States is governed by the laws of the state where the accident occurred— in this case, New York. See Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Grant v. United States, 271 F.2d 651, 654 (2d Cir.1959). Under New York law, the plaintiff must establish three elements in order to prevail on a negligence claim: (1) that defendant owed plaintiff a duty of care; (2) that defendant breached that duty; and (3) that...

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