Mingo v. U.S.
| Decision Date | 05 August 2003 |
| Docket Number | No. CV 01-1839(ADS).,CV 01-1839(ADS). |
| Citation | 274 F.Supp.2d 336 |
| Parties | Mignon MINGO, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Judy Moses, Esq., Central Islip, NY, Percy M. Samuel, Esq., Elmont, NY, for Plaintiff.
Roslynn R. Mauskopf, United State Attorney Eastern District of New York by Susan Riley, Assistant United States Attorney, Central Islip, NY, for Defendant.
This is an action brought under the provisions of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1) and 28 U.S.C. § 2674 et seq., to recover damages for personal injuries sustained by the plaintiff Mignon Mingo ("Mingo" or the "plaintiff').
The following facts are undisputed. On September 22, 1997, the plaintiff was shot and seriously injured at her home by one Edward M. Babb ("Babb"), a special agent of the United States Immigration and Naturalization Service ("INS"). After shooting the plaintiff three times, Babb shot and killed himself. On April 6, 1999, the plaintiff was declared a victim of a crime. On September 6, 2000, the plaintiff filed a standard form 95 claim for damages or injury with the INS. On October 2, 2000, a notice of denial and a report to sue letter was sent to the plaintiff.
On March 26, 2001, the plaintiff commenced this action by the filing of a complaint which sets forth four causes of action. The first cause of action is based on the "negligent entrustment of dangerous weapons." The second is for "vicarious liability for an employee's action." The third and fourth causes of action are for pain and suffering. In effect, the first and second causes of action are the only substantive causes alleged.
The primary issues in this case concern the defendant's contentions, supported by a motion for summary judgment, that it is entitled to a dismissal of the complaint on the grounds that, (1) the plaintiff failed to exhaust the administrative remedies required under the FTCA because she did not file her administrative claim with the INS within the two-year limitation period set forth in 28 U.S.C. § 2401(b); and (2) Babb, a federal employee, was not acting within the scope of his employment, as is required by 28 U.S.C. § 1346(b). In response, the plaintiff argues that she did not know the existence and cause of her injuries until she was declared a victim of a crime and that the INS was negligent in issuing guns to Babb. The Court addressed these two material factual issues at a hearing held on July 2, 2003 and July 28, 2003.
At the hearing, Mingo testified that she had a troubled relationship with her fiance Edward Babb who lived in the basement apartment of her house. Mingo described Babb as possessive and jealous and stated that he wanted her to account for all of her time away from him. Mingo stated that Babb had a gun issued by the INS and carried it with him at all times. Mingo conceded that she never reported any of Babb's threats to the INS.
Mingo testified that on the day of the shooting, Babb was not on duty with the INS either that day or in the evening. During direct examination, she described the September 22, 1997 shooting, as follows:
THE WITNESS: And we were — we had discussed not being together. And he was not very happy about it. And that evening we had gotten back home from counselling by the pastor of our church. And when we got home I was eating — finished eating supper and was getting ready to go and visit a friend. And on my way going, I realized he was following me. And I turned back and came home. And he came home after me and wanted to talk. And we started the discussion. And I asked him why was he following me. And he didn't really respond. He was —
Q What happened next?
A He said to me he wanted to know where I was going. And I said, I told you where I was going. And I said we just came from counselling and our minister told us what we should do, and you are doing something different from what we were told. And I was going to call the pastor to let him know what happened. Because he advised us if anything happened that neither of us was happy. To call him. He said, yes, he agreed I should call. And as I turned away to go and get the phone, I asked him to pick up the other phone so he can hear what I am saying and both of us could be on the phone at the same time. And as I reached the phone and I turned around, he was right there in front of me with his weapon and he shot me.
* * * * * *
Q And it is at this point when you go in to use the telephone in your bedroom that Mr. Babb appears in front of you with a gun; is that correct?
A Yes.
* * * * * *
Q Where was Mr. Babb when he fired the shots?
A In front of me, close range.
Tr. at 54-55, 82, 84.* (emphasis supplied).
When asked whether she lost consciousness, Mingo stated "somewhat, yes" and recalled the detectives talking to her to "keep me alert." At Mercy Hospital, her first recollection was following her surgery. One week after Mingo was discharged from Mercy Hospital, she "passed out" from severe pain and was readmitted to the hospital for another two weeks. At the present time, she is assisted by neighbors, friends and her son and daughter, but can no longer afford a nurse or an aide. Mingo testified that one of the three bullets still remains in her body.
One week after Ms. Mingo was discharged from Mercy Hospital, she "passed out" from severe pain and was re-admitted to the hospital for another two weeks. When she was discharged from the hospital she stayed with her sister for two months with a nurse and an aide. She needed the services of the aide for almost a year. At the present time she is assisted by neighbors, friends and her son and daughter, but no longer can afford a nurse or an aide. She had physical therapy for almost a year. Ms. Mingo owns a car and has a New York State driver's license but does not drive by herself because she is dizzy and lightheaded most of the time. Ms. Mingo stated that she was lightheaded and dizzy the morning of the day she testified at the hearing.
On cross-examination, it was again brought out that at the time of the shooting Mingo was face-to-face with Babb and knew what happened.
Q You were face to face with Babb on September 22nd, 1997, when he shot you; is that correct?
A Yes.
Q And the first shot hit your arm; is that correct?
A Yes.
Q And which arm was hit in that first shot?
A My left.
Q And you were shot twice after that; is that correct?
A Yes.
Q You only saw one gun; is that correct?
A Yes.
Q Now, you didn't lose consciousness when Babb shot you; is that correct? A Yes.
Q And you, in fact, saw Babb shoot himself; is that correct?
A Yes.
Q And, in fact, you saw him shoot himself twice; is that correct?
A Yes.
Q And as you sit here today, you remember the shooting, don't you, as you described it here today?
A Yes.
Q And you had known at the time you were shot on September 22nd — on September 22nd, 1997, you knew that Edward Babb shot you, didn't you?
A Yes.
Q And you knew that he shot himself; is that correct?
A Yes.
Tr. at 74-75 (emphasis added).
It was also brought out during cross-examination that after the shooting, when she was on the floor and still conscious, she told her son Jermaine that Edward Babb had shot her and told him to call the police, which he did. Police arrived at the scene fairly quickly, and Mingo told the police that Babb had shot her.
Q And you knew on September 22nd, 1997 when Babb shot you, you knew you were hurt, physically injured by having been shot by Babb, you knew that, correct?
A Yes.
At the hearing, the plaintiff produced two medical witnesses on the issue of timeliness. The first witness was Dr. Magdi S. Sourdour, a specialist in internal medicine, pulmonary disease and critical care, who was the plaintiff's treating doctor with regard to her pulmonary condition. Dr. Sourdour first saw the plaintiff at Mercy Hospital on September 23, 1997, the day after the shooting. She complained to him that she was unable to breathe properly as a result of being shot in the left side of her chest and that she suffered continuous pain as a result of chest surgery. Dr. Sourdour treated the plaintiff intermittently through the years to the present time and testified that he treated only her pulmonary condition. He prescribed a number of medications for her including painkillers and sleeping pills furnished "at her request." Dr. Sourdour noted that she complained of abdominal pain, back pain and depression throughout her treatment and referred Mingo to a psychiatrist, a psychologist, and a chiropractor for various other complaints.
Significantly, Dr. Sourdour testified that the plaintiff did not sustain or suffer from a brain injury and had no damage to the brain or amnesia as a result of being shot. Also of importance, he stated that she remembered what happened on September 22, 1997; namely, she told him she was shot by her boyfriend. In addition, Dr. Sourdour testified that the plaintiff was lucid, alert and oriented at all times.
Q And at all times Mrs. Mingo has been lucid, correct?
A Yes, ma'am.
Q And that would be at all times since November 3, 1997 up to the last time you saw her, on July 14, 2003. Correct?
A Yes, ma'am.
Q She has been alert and she has been oriented. Isn't that correct?
A Yes.
* * * * * *
Q Miss Mingo is very articulate, correct?
A Yes.
Q And she is very well groomed, correct?
A Yes.
During the years Dr. Sourdour treated Mingo, he said that she has been upset "about the fact that her boyfriend shot her." Dr. Sourdour testified that she was competent to make decisions regarding her treatment and that at no time did he ever diagnose her as being mentally incompetent. In fact, he testified that, despite her medications and depression, Mingo...
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