Miller v. U.S. ex rel. Dept. of Army, 88-2880

• Decision Date: 26 April 1990
• Docket Number: No. 88-2880,88-2880
• Citation: 901 F.2d 894
• Parties: Freddie MILLER, as Guardian of the Person and Estate of Christopher Linn Johnson, an Incompetent Person and Freddie Miller, Individually, Plaintiffs-Appellees, v. UNITED STATES of America, ex rel. DEPARTMENT OF the ARMY, Defendant-Appellant, Baylor Institute For Rehabilitation, and Baylor University Medical Center, Intervenors-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 894

901 F.2d 894

Freddie MILLER, as Guardian of the Person and Estate of Christopher Linn Johnson, an Incompetent Person and Freddie Miller, Individually Plaintiffs-Appellees, v. UNITED STATES of America, ex rel. DEPARTMENT OF the ARMY Defendant-Appellant Baylor Institute For Rehabilitation, and Baylor University Medical Center, Intervenors-Appellees.

No. 88-2880.

United States Court of Appeals Tenth Circuit.

April 26, 1990.

Ralph F. Keen, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty., with him on the brief), Muskogee, Okl., for defendant-appellant, U.S. of America, ex rel. Dept. of the Army.

Vester Songer, Hugo, Okl. (Hack Welch, Hugo, Okl., with him on the brief) for plaintiffs-appellees, Freddie Miller, as Guardian of the Person and Estate of Christopher Linn Johnson, an incompetent person and FREDDIE MILLER, individually.

Before LOGAN, BALDOCK, Circuit Judges, and SAFFELS, ^* District Judge.

SAFFELS, District Judge.

This is an appeal from a judgment in a Federal Torts Claim Act case, in which the United States was found liable for injuries suffered by plaintiff's minor son in the amount of $7,065,873.71.

This case involves the tragic story of Christopher Linn Johnson. Plaintiff Freddie Miller, the mother and guardian of Christopher, brought this action to recover damages for personal injuries sustained by Christopher as result of an automobile accident. On November 17, 1986, at approximately 11:35 p.m., Christopher was driving west at about 45 miles per hour on U.S. Highway 70 in Choctaw County, Oklahoma, about one-half mile west of Hugo, Oklahoma. There was heavy fog in the area that evening and visibility was approximately 200 feet. Sergeant Richard Ricks, Jr., acting within the scope of his employment for the Department of the Army, an agency of the United States, was driving a two and one-half ton army truck which was towing a 24 foot equipment trailer. Sergeant Ricks, who had been traveling east on U.S. Highway 70, pulled the truck off on the south side of the highway and attempted to turn around to get into the westbound lane of U.S. Highway 70. As Christopher was approaching, the army truck pulled out into the westbound lane. Christopher hit the trailer before he could stop his car. The district court found that Sergeant Ricks saw, or should have seen, the headlights of Christopher's vehicle before crossing U.S. Highway 70 and could have easily stopped or yielded to Christopher's vehicle. Finding of Fact No. 8.

As a result of the collision, Christopher suffered severe injuries, including brain damage, multiple fractures, nerve damage, and lacerations. These injuries resulted in his total and permanent disability requiring continuous personal care. Before the accident, Christopher was a healthy, active, athletic seventeen-year-old high school student.

The United States District Court found the driver of the United States vehicle 90 percent negligent and that such negligence was the direct cause of the collision. The trial court assessed 10 percent of the negligence to plaintiff's minor because he should have been traveling at a reduced speed, given the fogging conditions. Finally, the district court found the total amount of damage sustained by plaintiff's minor to be $7,850,970.79. The district court reduced this amount to account for the 10 percent negligence on the part of plaintiff's minor son, resulting in a judgment for plaintiff in the amount of $7,065,873.71.

On appeal, the United States makes two general arguments. First, the United States challenges the trial court's assessment of the parties' relative fault. Secondly, the United States challenges the trial court's award of damages.

Defendant's arguments challenge findings of fact made by the trial court. This court will not set aside findings of fact unless the findings are clearly erroneous. See Velez v. Metropolitan Life Ins. Co., 723 F.2d 7, 10 (10th Cir.1983) (quoting Rule 52(a) of the Federal Rules of Civil Procedure); see also Inryco, Inc. v. CGR Bldg. Sys., Inc., 780 F.2d 879, 882 (10th Cir.1986) (determinations of fact by the district court are binding on this court if the findings of fact are not clearly erroneous). If there is substantial evidence to support the trial court's findings, the judgment should be affirmed on appeal. United States ex rel. Clark Engineering Co. v. Freeto Constr. Co., 547 F.2d 537, 540 (10th Cir.1977).

After reviewing the record on appeal, we are convinced that the trial court's apportionment of fault is supported by substantial evidence. The evidence supports the trial court's finding that the driver of the United States' truck should have seen the headlights of plaintiff's minor son's vehicle before crossing the highway and could have yielded. Thus, the trial court's apportionment of 90 percent of the fault to the United States is supported by the evidence. We cannot say that the trial court's assessment of 10 percent fault on the part of plaintiff's minor son for traveling at a speed slightly faster than he should have been given the foggy road conditions is clearly erroneous. Therefore, this court affirms the trial court's apportionment of fault.

The second matter on appeal is the government's challenge to the trial court's award of damages. The district court's judgment on the amount of damages will not be overturned unless it is clearly erroneous. Fed.R.Civ.P. 52(a); Whiteis v. Yamaha Int'l. Corp., 531 F.2d 968, 972 (10th Cir.), cert. denied 429 U.S. 858, 97 S.Ct. 157, 50 L.Ed.2d 135 (1976); see also Low v. United States, 795 F.2d 466, 471 (5th Cir.1986). Nevertheless, damages recovered under the Federal Torts Claim Act must not be punitive in nature. 28 U.S.C. Sec. 2674.

The parties stipulated that plaintiff's minor son's medical expenses up to the date of trial are $415,582.53. The trial court, relying on the testimony of plaintiff's economist, awarded $5,127,276.17 for future medical costs and life care, based on a reduced life expectancy of seven years to the age of 65. The district court awarded $808,112.09 for loss of future income. The trial court further awarded $1,500,000 for past and future physical and mental pain and suffering.

Defendant United States first contends that the amount for lost future income amounts to a double compensation. The United States argues that the award for future medical care and life care includes all expenses that would have been purchased with...