Huss v. US

• Decision Date: 24 April 1990
• Docket Number: No. K86-81 CA4.,K86-81 CA4.
• Citation: Huss v. US, 738 F. Supp. 1098 (W.D. Mich. 1990)
• Parties: John HUSS, Personal Representative of the Estate of Norma J. Davey, Deceased and John Huss, Personal Representative of the Estate of Clarence Davey, Deceased, Plaintiff, v. UNITED STATES of America, and the State of Michigan, Jointly and Severally, Defendants.
• Court: U.S. District Court — Western District of Michigan

738 F. Supp. 1098

John HUSS, Personal Representative of the Estate of Norma J. Davey, Deceased and John Huss, Personal Representative of the Estate of Clarence Davey, Deceased, Plaintiff, v.UNITED STATES of America, and the State of Michigan, Jointly and Severally, Defendants.

No. K86-81 CA4.

United States District Court, W.D. Michigan, S.D.

April 24, 1990.

COPYRIGHT MATERIAL OMITTED

Jeffrey S. Cohen, Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick, Detroit, Mich., for plaintiff.

Richard C. Bensinger, Bensinger, Combs & Cotant, Gaylord, Mich., and Anne Vandermale Tuuk, Grand Rapids, Mich., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MILES, Senior District Judge.

This action is brought by the plaintiff, John Huss, as the independent personal representative of the estates of Clarence and Norma Davey, against the defendants, the United States of America and the State of Michigan.Clarence and Norma Davey, husband and wife, were killed on the evening of August 6, 1983 when their car collided with a Michigan National Guard truck near Camp Grayling in Crawford County, Michigan.

This case was tried before the Court sitting without a jury over a period of four days.Before trial, the parties submitted proposed findings of fact and conclusions of law.Upon the conclusion of the trial, and with the permission of the Court, the parties submitted additional proposed findings and conclusions of law.Accordingly, the case is now ready for decision.

FINDINGS OF FACT

Based upon the testimony and exhibits received at trial, the Court makes the following findings of fact as required by Fed. R.Civ.P. 52(a)¹:

1.The plaintiffJohn Huss is the independent personal representative of the estates of the deceased, Clarence and Norma Davey, husband and wife.

2.At the time of his death on August 6, 1983, Clarence Davey was 55 years old.At the time of her death on August 6, 1983, Norma Davey was 52 years old.The Daveys resided in Grayling, Michigan.

3.The Daveys are survived by three adult children: Michael Davey, age 39, who resides in Howell, Michigan; John Davey, age 38, who resides in Detroit, Michigan; and Bonnie Welemirov, age 36, who resides in Grayling, Michigan.²

4.During the morning and afternoon of August 6, 1983, Clarence and Norma Davey consumed considerable quantities of beer.

5.On the evening of the same date, the Daveys traveled to a party located at a cabin at Camp Arrowhead near Grayling, Michigan.At this party, they continued their beer drinking to an extent that Norma Davey appeared visibly intoxicated.

6.At the time of the accident, Clarence Davey was driving the couple's orange 1972 Volkswagen "beetle" automobile.Norma Davey was the passenger.

7.After leaving the party, and driving approximately ten miles toward their home, as they were traveling in the southbound lane of Military Road, the Davey vehicle collided with a two and one-half ton military truck which was obstructing the road at the intersection with Beaver Creek Road near Grayling, Michigan.Both Clarence and Norma Davey were killed instantly as a result of injuries they sustained upon the impact.The accident occurred shortly after 10:00 p.m. on August 6, 1983.

8.The location in which the collision occurred is a straight, relatively level stretch of road, surrounded by a heavily wooded area.Military Road is a two-lane paved road.Beaver Creek Road is unpaved.The accident occurred shortly after nightfall.

9.The military truck (which will hereinafter be referred to as the "deuce") which the Davey vehicle struck was one of three Michigan National Guard vehicles, containing a total of six active duty members of the Michigan National Guard, who were traveling as a convoy from Kalamazoo, Michigan en route to summer maneuvers at Camp Grayling, a National Guard post in Grayling, Michigan.

The guard vehicles were part of a maintenance "trail party" assigned to follow behind a main convoy of Guard vehicles which had left Kalamazoo earlier for Grayling.The three vehicles on the scene at the time of the accident included the two and one-half ton vehicle, or "deuce," which was struck (which was part of the "C" company), a second deuce (which was part of the "A" company), and a five-ton wrecker (which was also part of the "A" company).In addition, each of the deuces was towing a jeep.Both deuces were painted with camouflage paint.

10.Guardsman Woodrow Caswell was driving the "C" deuce at the time of the collision.The three guard vehicles had turned onto northbound Military Road from the exit of M-27.A short distance south of Beaver Creek Road, all three vehicles pulled over to the right side of Military Road, with the wrecker in the lead, in which two guardsmen, Sargeant Gary Johnson and Robert Grimms, were traveling.Johnson walked back to inform the guardsmen in the two other vehicles that they had passed their exit into Camp Grayling.After some discussion among the guardsmen, it was decided that they would proceed to Beaver Creek Road and turn around at the intersection with Military Road.

11.The three vehicles, with the wrecker in the lead, pulled up to a point immediately south of Beaver Creek Road on the northbound side of Military Road.The wrecker was the first vehicle to turn.With Grimms driving, the wrecker swung left across Military Road, pulled forward onto the southbound side shoulder of Military Road, south of the Beaver Creek intersection, and stopped.

12.Johnson served as a "ground guide"³ while Grimms turned the wrecker.Johnson, positioning himself on the driver's side at the rear of the "C" deuce, continued to serve as ground guide while Caswell proceeded to make his left turn.Due to the length of the deuce, which included the jeep which was in tow behind, Caswell was required to make a three-point turn; he intended to turn left onto Beaver Creek Road, back up across Military Road, and then pull onto the southbound shoulder of Military Road behind the wrecker.

Caswell pulled the deuce far enough onto Beaver Creek Road for the jeep, which was in tow behind the truck, to straighten behind him.In this position, his view north and south down Military Road was obstructed by the trees lining the road area.Thus, he did not look right and left for traffic on Military Road; instead, he looked in his rear view mirror on the driver's side of the deuce to ensure that the jeep did not jackknife.He relied solely on his ground guide Johnson to watch for traffic.As Caswell began to back the deuce, the jeep began to jackknife.He again pulled the deuce forward onto Beaver Creek Road, and again began to back slowly across Military Road, relying solely on Johnson to watch for traffic on Military Road.⁴The jeep once again began to jackknife, its rear wheels caught in a ditch on the northbound side of Military Road.⁵Johnson walked back to the jeep to straighten its wheels and steer it through the ditch.As he continued to maneuver the jeep steering wheel, he observed the headlights of the Davey Volkswagen approaching the passenger side of the "C" deuce on the southbound side of Military Road.At the time Johnson first saw the Volkswagen, it was already ten feet or less away from impact.Caswell did not see the Davey car approaching, nor did any of the other guardsmen warn him of its presence.⁶He was completely unaware of the Volkswagen until he felt its impact.Upon the impact, Caswell was thrown against the driver's side door of the deuce.He was not injured.He did not move his vehicle after he felt the impact.The Volkswagen struck the "C" deuce on the passenger side at its gas tank.

13.Immediately after the collision, Caswell walked over to the Davey car.Caswell walked very close to the car and smelled an odor of alcohol.He observed the Daveys, who appeared unconscious.

14.Shortly after the collision an unidentified female driver traveling southbound on Military Road stopped at the scene, claiming to be a registered nurse.She checked the Daveys to determine whether either of them had a pulse, finding no pulse on either of them.

15.Johnson and Grimms unhooked the jeep which had been in tow behind the "C" deuce.Grimms drove the jeep to the National Guard post to call for help.After unhooking the jeep, Johnson approached the driver's side of the Volkswagen.He smelled a very strong odor of alcohol as he stood next to the Davey's car.The police arrived on the scene approximately ten minutes after the accident.

16.At the time of the collision, the second deuce—the "A" deuce—was parked on the northbound side shoulder of Military Road, immediately south of the "C" deuce and Beaver Creek Road.(This vehicle was preparing to turn around after the "C" deuce completed its turn.)The headlights and emergency flashers of this vehicle were on at the time of the collision, and were facing the direction from which the Davey car approached.Further illumination at the scene was provided by a large yellow flashing beacon located atop the cab of the wrecker (which stood on the southbound side shoulder of Military Road on the opposite side from the Daveys' approach), which in height was substantially taller than the cabs of the deuces.⁷In addition, the head and taillights of the "C" deuce were on.

17.The reflectors located on the "C" deuce were covered at the time of the accident, either by a tarp covering the truck, by camouflage paint, or by camouflage tape.In any event, these reflectors were not visible to the Davey vehicle.However, yellow and red reflectors located on the side of the jeep facing the Daveys were not covered and were visible to approaching traffic.

18.In preparing to execute their turns, none of the guardsmen placed flares, reflective triangles, flashlights, or used any devices other than their vehicle lights, the wrecker beacon, and the "A" deuce emergency flashers to warn oncoming motorists of the potential obstruction of Military Road.Warning equipment...