Phillips v. US

• Decision Date: 07 August 1990
• Docket Number: No. S88-40C.,S88-40C.
• Citation: 743 F. Supp. 681
• Parties: Jackie PHILLIPS, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

743 F. Supp. 681

Jackie PHILLIPS, Plaintiff, v. UNITED STATES of America, Defendant.

No. S88-40C.

United States District Court, E.D. Missouri, Southeastern Division.

August 7, 1990.

C.H. Parsons, Jr., Parsons, Mitchell, Wilson and Satterfield, Dexter, Mo., for plaintiff.

Eric T. Tolen, Asst. U.S. Atty., St. Louis, Mo., for defendant.

MEMORANDUM

LIMBAUGH, District Judge.

Plaintiff initiated this action against the United States of America after he was hit by a car driven by a member of the United States Corps of Engineers. Plaintiff has filed a one-count complaint against the United States pursuant to the Federal Tort Claims Act. The case was tried before this Court sitting without a jury on February 28, 1989 and March 1, 1989. Due to some evidentiary problems, the matter was not finally submitted to this Court for its determination until April 1, 1990. This Court, having now considered the pleadings, the testimony of the witnesses, the documents in evidence and the stipulation of the parties, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52.

FINDINGS OF FACT

Plaintiff was self-employed as the operator of an auto repair business and service station located in Wayne County, Missouri. On May 25, 1984, around 1:30 p.m., plaintiff was called to a location on Highway "D" about three miles north of plaintiff's garage to do repair on a dump truck owned by T.J. Moore which had stalled while traveling up Walter William Hill, a steep hill three miles south of Shook, Missouri. At the location where the truck was stalled, the highway was a two-lane blacktop surfaced road with no shoulders on either side. The front of the truck was facing uphill and it was stalled in the southbound lane of Highway "D".

Plaintiff and his associate Junior Williams traveled to the site of the stalled truck. Plaintiff got out of his car and walked to the front hood of the dump truck. Junior Williams parked the car in which he and plaintiff had been riding approximately thirty feet in front of the truck and walked back to the dump truck. Plaintiff did not tow the truck off of the Highway before he began working on the truck, but simply worked on the truck while it was stalled in the middle of the road.

Highway D has one southbound lane and one northbound lane. The road leading to the point of collision was curvy from both directions. Because the stalled truck was parked in the entire southbound lane, other vehicles travelling south on Highway D were required to pass by entering the northbound traffic lane. The roads were dry, it was daylight, and there was good visibility.

Plaintiff was in front of the stalled truck. He had the hood raised and was working on the truck engine. A 1981 one-ton Chevrolet truck owned by the Corps of Engineers and operated by Terry Whitmer, a civilian employee of the Corps of Engineers, passed the stalled truck in a southbound direction and stopped several feet in front of the stalled truck with the rear of the Corps truck facing the front of the stalled truck. He was parked on the same steep uphill incline as the stalled truck. He stopped to see if he could offer any assistance in getting the truck started and removed from the southbound lane. Terry Whitmer was acting within the scope of his employment when he engaged in these actions.

Whitmer left the cab of the truck to offer assistance to T.J. Moore. Whitmer left the Corps truck unattended and stopped on the steep incline. T.J. Moore was inside the stalled truck holding the brake while the truck was being worked on. Mr. Whitmer was intending to get a tow chain out of the bed when the government truck slowly rolled backward.

Mr. Moore, who was still sitting in his truck with his foot on the brake, saw the government truck backing toward them and yelled a warning, but the truck rolled back into Mr. Moore's truck pinning plaintiff between the two trucks. When the Corps truck rolled backward, a portion of a trailer hitch on the rear bumper of that truck struck the front bumper of the stalled truck. Plaintiff's leg was caught between the front bumper of the stalled truck and rear bumper of the Corps truck. He had turned his upper body around so that he was facing the Corps truck, as if in an attempt to push the truck off of him, and as a result he injured his back. The distance between the two trucks was about four inches.

Plaintiff was pinned between the two vehicles for a very short period of time until the trucks were separated. Moore backed his truck up so that plaintiff could be released. Also, Whitmer reentered his truck and held it so that plaintiff could be extricated. Plaintiff was trapped for roughly twelve to fifteen seconds. After plaintiff was extricated, he fell over to the shoulder of the road and complained that his leg was hurt. He complained immediately of pain but did not seek medical attention at that time because he believed that he would probably be fine without medical treatment. He pulled his pant leg up and there was no red mark, blood, or bruise on his leg. He did not notice any problems at that time with his back. When asked by Mr. Whitmer whether he wanted an ambulance, plaintiff's response was "No, I'm okay." The trailer hitch on the government truck damaged Moore's front bumper.

During the remainder of that day and through that night plaintiff began to feel worse and he went to Lucy Lee Hospital Emergency Room the next day, May 26, 1984. His primary complaint at that time was pain in his right leg. He was examined, treated and released with instructions regarding care for his leg and to remain on bed rest. He was also instructed to see Dr. S.L. Gernstetter if he continued to have problems. X-rays were taken which showed only a bruised right leg.

Plaintiff did continue to have problems with his leg and began to experience low back pain. Thus, plaintiff went to see Dr. Gernstetter on May 30, 1984 with complaints of low back and leg pain. On June 7, 1984, plaintiff again saw Dr. Gernstetter and had complaints of back pain. Dr. Gernstetter put him on a lifting limit of ten pounds and told him to do no stooping or bending over.

Plaintiff was referred to Dr. A.D. Brookreson, and on June 20, 1984 he saw Dr. Brookreson with complaints of back pain in the lumbar spine area. Dr. Brookreson treated plaintiff conservatively with pain medication and limitation of activities. Plaintiff continued to see Dr. Brookreson on several occasions throughout the next year. He was last seen by the Doctor on April 10, 1985. On that date, Dr. Brookreson reviewed a CAT scan taken of plaintiff the week before, and diagnosed plaintiff as having a bulging disc at L5-S1 level of his back. He advised plaintiff to refrain from heavy lifting an to remain off work for eight to twelve weeks. Dr. Brookreson further noted that plaintiff's condition will be permanent. He also believed that plaintiff's injuries were directly related to the accident of May 25, 1984.

Plaintiff continued to experience back pain. He remained off work for about one year during which he limited his activities and took pain medication. He did not seek additional medical attention until October 6, 1986 when he saw Dr. Gordon W. Eller, an orthopaedic surgeon. Dr. Eller diagnosed plaintiff's problem as an old fracture of the apophyseal joint at the L4-L5 level and L5-S1 level of plaintiff's back. The X-rays showed a possible ruptured disc and there was probably an injury to the facette joint. He provided conservative treatment to plaintiff including medication, a facette joint injection and physical therapy, and this treatment helped to relieve plaintiff's pain. It did not, however, cure the problems.

In Dr. Eller's opinion, plaintiff's back problems were caused by the accident of May 25, 1984, when plaintiff was pinned between the Corps of Engineers truck and the stalled truck. Dr. Eller reaches this conclusion on the basis of the history given by plaintiff to him, as well as the x-rays taken October 6, 1986 and October 8, 1986 at St. Francis Hospital in Cape Girardeau, Missouri. It is Dr. Eller's opinion that plaintiff has a permanent partial disability of twenty percent in the lumbar spine and thus the body as a whole.

At the request of defendant, plaintiff was examined by Simon Horenstein, a neurologist. Dr. Horenstein believed that there was no evidence that plaintiff had a fracture which was causing his pain. He believed that plaintiff had degenerative arthritis. He also believed that there was no causal connection between the accident and plaintiff's back problems. He reached this conclusion based strictly upon reviewing the other doctors' combined information, and conducted no X-rays of his own. Further he only saw plaintiff for a one-hour period.

Although Dr. Horenstein diagnosed that the automobile accident did not cause plaintiff's problems, the Court finds Dr. Eller's testimony that the accident was the cause of plaintiff's injuries to be more credible. Additionally, the testimony of Dr. Brookreson supports this conclusion.

Plaintiff's total medical bills as a result of his back injury are approximately two thousand five hundred dollars. Plaintiff did not work at all for fifty four weeks, from May 25, 1984, until June 10, 1985, because of his injury.

Plaintiff was self employed as a certified automotive mechanic at the time of his injury and he had recently acquired the automobile repair business and service station which he was operating. He had purchased the station just one month before the accident. When he purchased the station he paid $10,000 for a down payment and then was required to make monthly payments. Because of the injury, plaintiff was unable to make the monthly payments, and the seller repossessed the garage. Plaintiff did not receive any of his down payment back. He was earning net income from his self-employment of approximately four...