Livingston v. US

• Decision Date: 18 March 1993
• Docket Number: No. 91-96-CIV-3-H.,91-96-CIV-3-H.
• Citation: 817 F. Supp. 601
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: John LIVINGSTON, individually and as Administrator of the Estate of David Dean Livingston, deceased, and Jean Livingston, individually, and John Livingston, d/b/a Fayetteville Auto Exchange, a sole proprietorship, Plaintiffs, v. UNITED STATES of America, Defendant.

817 F. Supp. 601

John LIVINGSTON, individually and as Administrator of the Estate of David Dean Livingston, deceased, and Jean Livingston, individually, and John Livingston, d/b/a Fayetteville Auto Exchange, a sole proprietorship, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 91-96-CIV-3-H.

United States District Court, E.D. North Carolina, Fayetteville Division.

March 18, 1993.

Bobby G. Deaver, Fayetteville, NC, for plaintiffs.

R.A. Renfer, Jr., Asst. U.S. Atty., Office of U.S. Atty., Raleigh, NC, for defendant.

ORDER

MALCOLM J. HOWARD, District Judge.

This is an action under the Federal Tort Claims Act ("FTCA") arising out of a September 19, 1990, vehicular accident in which David Dean Livingston received fatal injuries when his car was struck by a government truck driven by an Air Force serviceman. The driver of the truck, Airman First Class ("A1C") Tana Lyn Petersen, subsequently pleaded guilty to state charges of death by vehicle and failing to see before turning from a direct line. The United States does not contest liability and the matter is before the court for determination of damages.

The trial of this action was held on January 21, 1993, in Fayetteville, North Carolina. Following the close of the defendant's case, the matter was taken under advisement. After careful consideration of the evidence presented and the arguments of counsel, it is now ripe for disposition.

STATEMENT OF THE CASE

Prior to his death, David Dean Livingston ("David" or "decedent") led an active life, was a devoted son to his parents, an active participant in his father's business, and an entrepreneur in his own right. He was born on March 17, 1959, in New York City and moved to Fayetteville with his parents in 1967. As an adolescent and an adult, he enjoyed a number of outdoor activities including golf and hunting. He was close to his parents growing up, discussed his activities with his mother, shared hobbies with his father, and was active in the Roman Catholic Church with a particular devotion to Saint Jude. At an early age, he began working in the family business, Fayetteville Auto Exchange.

At no time did David spend any appreciable period away from the Fayetteville area such as for military service or the like. Although he considered the possibility of attending East Carolina University in Greenville, North Carolina, he elected to attend Methodist College in Fayetteville in order to remain close to his parents. Following several months of study, he withdrew from school to work in the family business full time.

When David was 21, he moved out of the family home into an apartment but continued to visit his parents often. Later, he purchased a house "around the corner" from Mr. and Mrs. Livingston and would often drop by to help his parents with yard work and whatever else needed to be done around their home. His parents in return visited their son frequently with Mrs. Livingston doing her son's laundry or cleaning on occasion.

Following his college stint, David threw himself into the activities of Fayetteville Auto Exchange. He participated in every aspect of management of the business and his father came to rely upon him for his advice and expertise. David managed the business' Parmly Drive lot for four years until its closure in 1986 after which he returned to the business' main location.

David expressed his intention to take over the family business following his father's retirement and the Livingstons planned on income from the operation to supplement their Social Security benefits.

David was single at the time of his death and had no dependents.

Fayetteville Auto Exchange prospered through much of the 1980's but encountered a steep decline beginning in 1987 and 1988. When times were good, the decedent drew a healthy salary; when times were not, he took a pay cut so that his parents would not experience a large decrease in their income from the business. David's federal tax returns from 1980 to 1989 reflected in part the fortunes of the business:

                Year     Income      Year     Income
                1980     $ 4,250     1985     $22,620
                1981      16,520     1986      22,620
                1982      19,345     1987      15,225
                1983      19,520     1988       3,480
                1984      19,520     1989         435
                

Eventually, David took out a second mortgage on his residence of approximately $50,000, placing the proceeds into the business. At the time of his death, there was no significant equity remaining in his home.

The decedent took an interest in drag racing, constructing his first race car with the assistance of an expert mechanic. He raced with some success in North and South Carolina, earning a "Rookie of the Year" award as well as a number of trophies, some awarded by a race track and others given by family and friends to commemorate a particular event. Despite his successes, racing was not a profitable pastime for David and he reported losses from the activity on his tax returns of $5,622 in 1984, $8,164 in 1985, and $8,282 in 1986, the last year he raced.

In 1988 and 1989 David tried his hand at the convenience store business, taking over a store with a Sunoco franchise in Goldsboro, North Carolina, while working full time at Fayetteville Auto Exchange. The venture produced a $1,061 profit in 1988 and a $5,975 loss in 1989, when he abandoned the enterprise.

Following David's death, John Livingston was appointed administrator of his son's estate on September 24, 1990. Claims were submitted to the Air Force on behalf of the estate for $830,000 for wrongful death and $70,000 for personal injury. John Livingston as proprietor of Fayetteville Auto Exchange submitted a further claim for $2,900 for the loss of the car destroyed in the accident. The military denied the claims in a letter dated September 30, 1991, exhausting the plaintiffs' administrative remedies.

This action was commenced on October 25, 1991, by the decedent's parents, individually, and by John Livingston on behalf of his son's estate, pursuing recovery for wrongful death, emotional distress, and property damage. The pretrial order indicates that John Livingston, d/b/a Fayetteville Auto Exchange, seeks $2,900 for loss of the automobile. The estate and the Livingstons, individually, demand wrongful death damages consisting of $2,187.05 in hospital expenses, $70,000 for decedent's pain and suffering, funeral expenses of $9,012.95, $142,000 for loss of net income, and a total of $730,000 for lost services, protection, care, assistance, society, companionship, comfort, kindly offices, advice, denial of grandchildren, and loss of bloodline. At trial, the plaintiffs further sought hedonic damages.

The United States does not oppose the plaintiffs' assertions concerning hospital or funeral expenses and the parties stipulate that the value of the automobile was $2,900. However, sharp differences exist on the calculation of economic losses and the propriety and determination of hedonic losses.

DISCUSSION

The matter raises issues concerning the cognizability of several of the claims asserted and the weight to be given to particular evidence introduced at trial.

At the outset, there is some confusion over which party is asserting which claim. Comments made by plaintiffs' counsel at trial following the government's motion to sequester witnesses suggest that Mrs. Livingston had been dismissed as a party, but no motion or order of dismissal is in the record. It is clear that under N.C.Gen.Stat. § 28A-18-2, only the personal representative may maintain a wrongful death action and the action must be brought in the name of the estate. Burcl v. North Carolina Baptist Hospital, Inc., 306 N.C. 214, 293 S.E.2d 85 (1982); Bowling v. Combs, 60 N.C.App. 234, 298 S.E.2d 754, petition den., 307 N.C. 696, 301 S.E.2d 389 (1983). As a result, the Livingstons, individually, will be dismissed as parties to the wrongful death claim.

Mr. and Mrs. Livingston, individually, further assert a separate cause of action for "emotional distress" in the complaint. This count is not mentioned in the pretrial order and is deemed abandoned under Local Rule 25.03(b), E.D.N.C.

The FTCA is a limited waiver of sovereign immunity allowing recovery of compensatory damages against the United States for ordinary torts recognized under state law. See Howell v. United States, 932 F.2d 915 (11th Cir.1991). Administrative remedies with the relevant federal agency must be exhausted before a complaint can be filed in the district court and the amount sought from the agency sets the upper limit of the recovery in the judicial action. 28 U.S.C. § 2674(a) and (b) (1992).

The plaintiffs seek recovery under N.C.Gen.Stat. § 28A-18-2 (1992), which provides for the recovery of:

(1) expenses for care, treatment and hospitalization incident to the injury resulting in death;

(2) compensation for pain and suffering of the decedent;

(3) the reasonable funeral expenses of the decedent;

(4) the present monetary value of the decedent to the persons entitled to receive the damages recovered, including, but not limited to compensation for the loss of the reasonably expected:

a. net income of the decedent,

b. services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,

c. society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered.

A. Pain and Suffering

The plaintiffs contend in their trial brief that David suffered "frightfully" when he realized that a collision was imminent and continued to suffer after the accident until his death a short time later. In its trial brief, the United States maintains that the decedent was comatose throughout the short period he remained alive following the collision.

No evidence was introduced directly on this point at trial nor was it argued by the attorneys. However, given that the circumstances of the accident and the injuries...