Kane v. U.S.

• Decision Date: 22 February 2002
• Docket Number: No. 99 CIV 0399(DC).,99 CIV 0399(DC).
• Citation: 189 F.Supp.2d 40
• Parties: Susan KANE, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

189 F.Supp.2d 40

Susan KANE, Plaintiff, v. UNITED STATES of America, Defendant.

No. 99 CIV 0399(DC).

United States District Court, S.D. New York.

February 22, 2002.

Coblence & Warner, By: Kenneth E. Warner, Howard Schrader, New York, New York, for Plaintiff.

James B. Comey, United States Attorney for the Southern District of New York By: Silvia L. Serpe, David S. Jones, Assistant United States Attorneys, New York, New York, for Defendant.

OPINION

CHIN, District Judge.

On February 5, 1997, plaintiff Susan Kane was crossing Third Avenue at 69th Street when she was struck by a United States Postal Service truck. She brought this action to recover for her injuries. The case was tried to the Court without a jury from February 4 through February 11, 2002. For the reasons set forth below, judgment will be entered in favor of Kane against the United States. Pursuant to Fed.R.Civ.P. 52(a), my findings of fact and conclusions of law follow.

FINDINGS OF FACT

A. Plaintiff

Kane was born in 1960 and is now 41 years old. At the time of the accident, she was 36 years old. She graduated from the University of Scranton in Pennsylvania in 1982 with a bachelor of science in computer science. She also has an associate's degree in business from Rockland Community College. She is presently single, having divorced in November 1988 after a three-year marriage. She has no children. (Tr. at 29-30; Stip. Facts ¶ 1).¹

Prior to the accident, Kane had a highly successful and promising career in computer systems and training. Her first job after college was as a programmer for Peat Marwick Mitchell, making $21,000 per year. (Tr. at 31-32). Over the course of the next 13 years, she held jobs at four different companies (Data General, Federal National Mortgage Association, Digital Equipment Corporation, and Union Bank of Switzerland) and her job responsibilities and compensation steadily increased. By the mid-1990's, she was earning some $70,000 per year, with management, marketing, and training responsibilities in computer systems. (Tr. at 33-34). With a combination of strong technological skills, knowledge of computer systems and software, and interpersonal skills, she prospered professionally. In particular, she had a "knack for taking the technology, the real technical information, and making it sound easy, doable, [by] putting it into end-user's, or layman's, terminology." (Tr. at 34).

In August 1996, Kane joined Credit Suisse as an Associate in Information Technology at a salary of $75,000 per year, with a $5,000 starting bonus as well as a minimum guaranteed bonus for 1996 of $5,000. (PX 39, at 101 1739). Within weeks, Credit Suisse merged with First Boston and the new entity became known as Credit Suisse First Boston ("CSFB"). Kane was shifted over to the First Boston side of the new company and placed in a position where she was to train the top executives and other employees to use computer technology. The job required her to market the computer technology to the executives, to interest them in using computers and computer software. The position gave her visibility, as she worked with the highest executives in the company. (Tr. at 34-41).

Kane was an assistant vice president at the time of the accident. As of January 1, 1997, her salary had increased to $78,000 per annum, not including bonuses. (PX 39, at 248 1580). The work was demanding requiring long hours, including work in the evenings and on weekends. At times, she would go out with friends after the workday but then return to the office to work further. (Tr. at 53). She had a strong work ethic and was performing at a high level; as one of her supervisors testified, she had the "potential to continue to perform at a high level." (Tr. at 334). Even after the accident, her salary continued to increase: rising to $85,800 effective July 1, 1997, and to $92,500 effective January 1, 1998. (PX 39, at 248 1580). If she had continued to work at the same "high level," more likely than not she would have been promoted to vice president in 1998 or 1999. In that event, she would have earned in the range of $140,000 to $160,000 or more (salary and bonus) for 1999 and 2000. (Tr. at 337, 340, 347-50).

In general, before the accident Kane was doing extremely well, physically, psychologically, personally, and socially. She was attractive, outgoing, and energetic. She led an active life. She took scuba diving and cooking classes. She went white water rafting, camping, and mountain climbing. She was a black diamond skier and played volleyball and golf. She went to the gym three times a week, using the treadmill, elliptical fitness machine, stairmaster, and weight machines. She went on many vacations with friends and enjoyed going to restaurants, parties, and clubs. She was an avid dancer. She was often the center of attention and, as her friend Mary Crotty described it, "no matter where we [were], in bars or restaurants or parties, she was always being asked out." She was involved in community activities, including working with at a neighborhood homeless shelter and fund-raising for her church. (Tr. at 43-54, 276, 360-62; PX 36).

Over the years, Kane had her share of stresses in life. In 1983, her younger brother was killed in a motorcycle accident. (Tr. at 29). Her divorce resulted in a year and a half of therapy. (Tr. at 304-05). Her job at Digital Equipment was stressful. (Tr. at 844, 870). But she was never diagnosed with clinical depression, nor was she ever prescribed anti-depressants for depression, and by February 1997 these matters were long behind her. (Tr. at 302-05).

Kane also had some injuries or ailments prior to the accident, but nothing unusual or out of the ordinary. For example, she saw a chiropractor for "general health problems," including menstrual cramps, headaches, and stomach ailments, for approximately two years prior to the accident. (Forster Dep. at 16, 19-21; Tr. at 274). She injured her right knee skiing. (Tr. at 192, 277). At some point she had minor neck, jaw, and back injuries. (Tr. at 274-75, 496-97, 835). In general, however, she was in good health, psychologically and physically, before the accident. (See, e.g., GX D-6 (12/28/93 "Normal CT scan of the neck.")). Her chiropractor described her as being "very upbeat." (Forster Dep. at 23).

B. The Accident

On Wednesday, February 5, 1997, at approximately 6:30 a.m., Kane left her home at 72nd Street and First Avenue for work. She was planning to go to the gym first to work out before starting her workday at CSFB. Her intent was to walk to the subway station at 68th Street and Lexington Avenue to take the subway to her office. (Tr. at 55-56; Stip. Facts ¶¶ 3, 4, 5).

Although it was raining lightly, Kane did not have an umbrella. She was wearing a blue coat and white sneakers. It was still dark; sunrise did not occur until 7:02 a.m. The streetlights were still lit and the cars had their headlights on. (Tr. at 56-57, 60, 491, 875, 896).

Kane reached 70th Street and Third Avenue at approximately 6:40 a.m. She was walking south on the east side of Third Avenue approaching 69th Street. At the same time, a two-and-a-half ton United States Postal truck driven by Carl Huff was stopped at a traffic light on 69th Street. The truck was the first vehicle at the light. (Tr. at 57, 59, 883, 885, 888-90, 896; Stip. Facts ¶¶ 6, 7).

At some point before she reached 69th Street, Kane looked across Third Avenue and saw that the traffic light had changed to "walk." She started to cross Third Avenue, stepping off the curb into the street approximately 18 feet north of the crosswalk. She looked down Third Avenue, saw no cars at the intersection of 69th Street and Third Avenue, and saw some cars stopped at the traffic light on Third Avenue further south at 68th Street. She was walking at a brisk pace on a diagonal, intending to enter the crosswalk approximately at the midpoint of Third Avenue, where she intended to head directly west to reach the northwest corner of the intersection. She did not see the postal truck. (Tr. at 60-68, 70-71, 492, 495, 832, 856-57).

In the meantime, Huff saw his traffic light change from red to green. He had his turn signal on and was intending to make a right turn onto Third Avenue. After the light changed, he checked the mirrors on both sides of the truck. He saw that the truck was clear and he proceeded into the intersection. He cleared the crosswalk on 69th Street (which was 12 feet wide), entered the intersection slowly, and turned right, entering the crosswalk on Third Avenue (which was also 12 feet wide). He started turning into the third lane on Third Avenue (counting from the east side of the avenue). Because of the size of the truck, he turned wide. The truck was moving slowly.² (Tr. at 890-92, 915-22). Third Avenue is seven lanes wide at 69th Street. (Tr. at 68, 859).

Before she reached the crosswalk as she was walking on a diagonal across Third Avenue, Kane heard the sound of a vehicle to her left. Her first thought was one of annoyance, that a car would come so close to her. When she turned, however, she saw a truck bearing down on her, about to hit her. She heard a voice in her head say "Run, Susan, run," and she tried to run but could not. The truck hit her on her left side—her left leg—and she was propelled forward and knocked to the ground, landing on her hands and her chin and face. (Tr. at 72-75).

When Huff had started making his turn, he did not see any pedestrians in the crosswalk. He never beeped his horn. Just as he was about to complete the turn, he heard the noise of an impact with the truck. He immediately stepped on the brakes and stopped the truck. He opened the door, saw Kane, and realized that he had hit her. (Tr. 893-96, 905-09, 923).

Huff never saw Kane before he hit her. He did not see her even though she crossed in front of the entire width of the truck, walking from right to left. Kane was struck by the front bumper on the left side of the truck...