Lange v. U.S.

• Decision Date: 03 August 1994
• Docket Number: No. 93-2564,93-2564
• Citation: 31 F.3d 535
• Parties: Michael LANGE, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 535

31 F.3d 535

Michael LANGE, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 93-2564.

United States Court of Appeals Seventh Circuit.

Argued April 19, 1994.

Decided Aug. 3, 1994.

Philip H. Corboy (argued), Corboy & Demetrio, Chicago, IL, for plaintiff-appellee.

Nancy K. Needles, Asst. U.S. Atty., Office of U.S. Atty., Civ. Div., Appellate Section, Linda A. Wawzenski, Asst. U.S. Atty. (argued), Office of U.S. Atty., Chicago, IL, for defendant-appellant.

Before COFFEY, FLAUM, and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

Plaintiff-appellee Michael Lange, while driving his motorcycle, collided with a United States Postal semi-tractor trailer driven by Harold Baker. Lange sued the United States under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346 et seq., arguing that the driver of the postal truck was negligent as to a number of rules of the road, including but not limited to failure to keep a proper lookout, violation of a traffic control signal, and maintaining a speed greater than reasonable at a controlled intersection, among others. The district court, following a bench trial, found the Postal Service driver was sixty percent negligent and Lange forty percent negligent. After reducing Lange's total damages of $484,327 by the amount of negligence attributed to him (40 percent), the court entered judgment "in favor of plaintiff, Michael Lange, and against defendant, United States of America, in the amount of $289,997." The United States appeals, arguing that the evidence established that Lange, in an attempt to commit suicide, deliberately drove his motorcycle into the postal truck, and thus the court's apportionment of negligence was erroneous. We affirm.

FACTS

According to the undisputed trial testimony, the collision occurred on July 13, 1988, at about 10:40 p.m., at the intersection of Roosevelt Road and Laramie Avenue in Chicago, Illinois. Roosevelt Road is a six-lane roadway with two eastbound lanes, two westbound lanes, and two left-turn-only lanes for eastbound cars turning north and westbound cars turning south. Laramie Avenue is a four lane road running north-south. The posted speed limit on Roosevelt Road was thirty miles per hour while the speed limit on Laramie is not reflected in the record. The accident occurred when Lange, riding his motorcycle westbound on Roosevelt, collided with a postal truck, which was travelling eastbound on Roosevelt and was in the process of turning north onto Laramie.

An eyewitness, Steve Bogdan, testified that he was travelling south on Laramie Avenue and had stopped his car at the Roosevelt intersection for a red light. Bogdan stated that he observed the postal truck approach the intersection going east on Roosevelt; upon reaching the intersection, the truck began to turn left to go north on Laramie at a speed "around three miles an hour, maybe five, slowing down to make a turn." Bogdan also observed that as the truck began its left-hand turn, a motorcycle was approaching the intersection from the opposite direction (west on Roosevelt) at a speed of "between twenty-five and thirty miles an hour." The witness testified that as "[t]he truck started turning north onto Laramie, ... it appeared to me that the motorcycle drove head-on into it." Bogdan did not hear "any brakes screeching from the motorcycle" and stated that the two vehicles collided, and the operator of the motorcycle "went flying backwards after he hit the truck ... and was separated from the motorcycle." According to Bogdan, at the time the truck "first started its turn," the motorcycle was "thirty or forty feet from where the accident occurred[,]" and at the time of impact, the truck was moving "very slowly." After the accident, the witness Bogdan exited his vehicle and rendered assistance.

Another witness, Louise Pavon, testified that as she approached the intersection from the south and was stopped for the light she "heard a loud squeaking, like an impact, and I seen the truck trying to stop and the kid flying in the air." However, Pavon stated that she "d[id]n't know for sure" whether the noise she heard came from the truck or the motorcycle.

Willie Hall, a pedestrian who was standing near the northeast corner of the intersection, was also present at the time of the accident. Hall testified that he initially observed the postal truck begin its left-hand turn onto Laramie and "heard the motorcycle coming" from the east. According to Hall, the motorcycle was "just west of the next corner from Laramie" at the time the post office vehicle began to turn, and was travelling "[a]bout fifty-fifty-five [miles per hour], something like that." The light for Roosevelt traffic The driver of the motorcycle, Michael Lange, testified that he was unable to recall any of the events surrounding the accident. The loss of memory was undoubtedly caused by the serious head injury. Baker, the postal truck driver, had been deposed sometime prior to trial, and according to the record, the government's attempts to locate him at the time of the trial were futile. Thus, Baker's deposition testimony was offered and received in evidence. According to Baker's deposition testimony, "[t]he light was green until I entered the intersection and then, you know, the light turned yellow.... I started to make my turn when the yellow light came on, I decided to make my turn and I never completed the turn ... [b]ecause I heard a loud noise and then I saw the headlight and I knew it was a motorcycle and I stopped." Baker stated that when he first saw the motorcycle, it was "more than a block" east of him and that by the time he (Baker) reached the intersection, Lange was "about a block" away, travelling behind two cars. By the time the motorcycle had closed the distance "to about half a block[,]" it "seemed" to Baker that Lange "lost control of his bike because he was--his wheel was locked, screaming noise like burning rubber and his, you know, the headlight on the motorcycle was veering left, right, left, right." Baker's description of the locked wheels, burning rubber, and veering headlights strongly suggests that Lange had forcefully applied his brakes in an attempt to avoid the accident. Finally, Baker asserted that his truck was stopped at the time of the collision and that the light for eastbound Roosevelt Road had turned from yellow to red. To say the least as in most accidents, it is apparent that there were a number of inconsistencies in the respective witnesses' recollection of the event.

                was green at the time of the impact.  Hall testified that he did not see the motorcyclist attempt to swerve or stop, and that "[t]he guy braced hisself [sic] just before he hit it."   Hall stated that the truck was moving at the time of the collision
                

The injured Lange was transported to Foster G. McGraw Hospital at Loyola University and was described upon admission as being in a coma, having suffered a "traumatic brain injury," "[a]n open left tibia fracture as well as a displaced right distal radius fracture" of the wrist, and a "subarachnoid bleed." The trauma to Lange's cranial cavity was so severe that it necessitated a craniotomy and the surgical insertion of a "subarachnoid bolt" in his skull to "monitor pressure within [Lange's] head." Dr. Richard Bonfiglio testified that as a precaution, the coma initially was "maintain[ed]" by the use of medications "to decrease brain function ... so that there would be less injury done[.]" (Bonfiglio further stated that Lange was "weaned ... fairly quickly" from the medications which maintained the coma.) ¹ Lange's attending orthopedic physician, Dr. Kenneth Schiffman, testified that on the day following the accident, July 14, 1988, he "brought [Lange] to surgery ... for a sequential or secondary debrisement, that is, cleaning of the wounds and the bone ends and then applying an external fixator, which is a device to stabilize fractures." Four days later, on July 18th, Lange underwent surgery to graft pieces of bone from his pelvis to his tibia and to address the injuries to his right wrist.

On July 19, 1988, at approximately 10 p.m., Lange stated in the presence of one Nurse Canfield that "I want to die. I want to end it all. I tried to end it by running into the truck. I want to die" (the "alleged suicide statement"). Nurse Canfield in her nursing notes referred to the statement. As a result of the remark, the hospital followed its standard precautionary measures placing the patient on a suicide watch and thereafter ordering a psychiatric test by Dr. Deborah Couch. According to Lange's "discharge summary," Dr. Couch described Lange's condition as Dr. Bonfiglio testified that in addition to Lange's brain injury and resulting amnesia, the medications and/or drugs may have influenced Lange's behavior and contributed to the unreliability of the statement. Bonfiglio testified that in the "week to ten days after [the] injury," Lange "was on a number of medications, including some that can affect the thought processes, ... including pain medication, Morphine, Demerol, Visteril, and Codeine." Lange's hospital records indicate that on July 19, Lange's physicians had ordered "Valium Diazepam," "Tylenol Acetaminophen," "Tylenol # 3," "Visteril Hydroxyzine," "Demerol Meperidine," and "Haldol Haloperidol"; all except Valium Diazepam were ordered on an "as needed" basis. The records also indicate that on July 19, Lange actually received Demerol, Haldol, and Valium.

                reflecting a "character disorder rather than actual suicidal intentions."   At trial, Dr. Bonfiglio agreed that the statement Lange made in Nurse Canfield's presence was probably false, noting that "most individuals who have [a] brain injury like this with a period of coma tend not to be a very good historian at the time that they are coming out of coma.  They tend to become--they tend to be confused and disoriented[.]"  Dr. Bonfiglio observed that Nurse Canfield's notes for July 19, 1988

...