Saint v. U.S.

• Decision Date: 23 April 2007
• Docket Number: No. CV 04-2118(ADS).,No. CV 04-2221(ADS).,CV 04-2118(ADS).,CV 04-2221(ADS).
• Citation: 483 F.Supp.2d 267
• Parties: Eve SAINT, as Guardian Ad Litem for her son Thomas Saint, Plaintiff, v. UNITED STATES of America, Defendant. Nationwide Mutual Insurance Company a/s/o/ Thomas Saint, Plaintiff, v. United States of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

Page 267

483 F.Supp.2d 267

Eve SAINT, as Guardian Ad Litem for her son Thomas Saint, Plaintiff, v. UNITED STATES of America, Defendant.

Nationwide Mutual Insurance Company a/s/o/ Thomas Saint, Plaintiff, v. United States of America, Defendant.

No. CV 04-2118(ADS).

No. CV 04-2221(ADS).

United States District Court, E.D. New York.

April 23, 2007.

COPYRIGHT MATERIAL OMITTED

Hanly Conroy Bierstein Sheridan, Fisher & Hayes, LLP by Clinton B. Fisher, Esq. and Gregory Hach, Esq., New York City, for Plaintiff Eve Saint.

D'Ambrosio & D'Ambrosio, P.C. by James D'Ambrosio, Esq., Irvington, NJ, for Plaintiff Nationwide Mutual Insurance Co.

Roslynn B. Mauskopf by Vincent Lipari, Assistant United States Attorney, Central Islip, NY, United States Attorney.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This decision is rendered following a four day non-jury trial. This is an action brought under 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 to Thomas Saint, the son of Eve Saint, his mother and guardian ad litem.

The time was June 7, 2002 at about 6:20 a.m. The location was at the intersection of Route 110 and the north service road of the Long Island Expressway ("LIE"). At that time and place, there was a collision between a tractor-trailer ("T-T") owned by the United States Postal Service ("USPS") and operated by Mark P. Arbucci and a Lincoln automobile operated by twenty year old Thomas Saint ("Saint"). This action to recover damages for personal injuries is brought on behalf of Thomas Saint by his mother, Eve Saint as Guardian Ad Litem for her son.

Other than the speed of the respective vehicles and the damages issues, virtually all of the material facts in regard to the collision are undisputed. The T-T was being operated by Arbucci in a southbound direction on Route 110. The Lincoln car was being operated by Saint in a northbound direction on Route 110. As the Lincoln car approached the intersection of Route 110 and the north service road of the LIE it moved into the left turn lane and made a left turn and entered the intersection. The T-T, proceeding south, came into contact with the right side of the Lincoln car. There was a severe impact.

Following the collision, the Lincoln car traveled approximately 250 feet, having crossed the grass median dividing Route 100, traversed the northbound lanes of Route 110 and came to a rest on the easterly sidewalk against a metal barrier. The Lincoln car sustained substantial damages to the right side of the car at the initial impact with the T-T, and also, substantial damages to the front of the car when it ended up colliding with the easterly metal barrier. After the collision, the T-T traveled approximately 372 feet and came to a stop in the extreme right southbound lanes of Route 110 near the southbound entrance for the LIE.

As to the weather, it was raining heavily and the streets were wet. At the time of the collision, the traffic lights at the intersection were green for both northbound and southbound traffic on Route 110. There was a green turn arrow facing the Lincoln car as it was proceeding northbound just prior to its turn. However, this turn arrow was not green at the time the Lincoln car turned left.

All of these facts are virtually undisputed. As to liability, the real triable issues are the speeds of the two vehicles, prior to and at the time of the collision.

I. THE FEDERAL TORT CLAIMS ACT

A complaint states a cause of action under the FTCA if it presents a claim that is "[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 1001, 127 L.Ed.2d 308 (1994) (quoting 28 U.S.C. § 1346(b)).

The Supreme Court has consistently held that the reference in Section 1346(b) to the "law of the place" means the law of the State which is a source of substantive liability. Id. at 478, 114 S.Ct. 996; see also, e.g., Miree v. DeKalb County, 433 U.S. 25, 29 n. 4, 97 S.Ct. 2490, 2491 n. 4, 53 L.Ed.2d 557 (1977); United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 1852, 10 L.Ed.2d 805 (1963); Rayonier, Inc. v. United States, 352 U.S. 315, 318, 77 S.Ct. 374, 376, 1 L.Ed.2d 354 (1957). In this case, the law of the State of New York governs the actions of the parties.

II. LIABILITY — AS TO THE LEFT TURN BY THOMAS SAINT IN THE LINCOLN CAR

The movement of Saint's Lincoln car as it approached the intersection was governed by the New York Vehicle and Traffic Law ("VTL"), § 1141, which provides as follows:

§ 1141. Vehicle Turning Left

The driver of a vehicle intending to turn to the left within an intersection ... shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard.

The violation of this statute, which provides that a left-turning automobile must yield to oncoming traffic, constitutes negligence per se. Ciatto v. Lieberman, 266 A.D.2d 494, 495, 698 N.Y.S.2d 54 (2d Dep't 1999).

Both vehicles approached the intersection facing green signal lights. New York Vehicle & Traffic Law § 1111(a)(1) provides:

(a) Green indications:

1. Traffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.

Under the provision of VTL § 1111(a)(1), at an intersection, Saint could properly turn left on a solid green light even if the green turning arrow was not lit, provided he complied with the provision of VTL § 1141. Saint should have yielded the right of way to the USPS T-T, and failed to do so. Therefore, Saint violated the provisions of VTL § 1141. However, the plaintiff contends that Mark Arbucci, the USPS driver was also negligent and bears a share of the total responsibility for the accident, because the USPS vehicle was traveling at an excessive rate of speed on a rainy day on a wet road, namely at least 60 miles per hour on a road where the speed limit was 55 miles per hour.

Another statute involved in this case is VTL § 1180(a), (b) and (e) which states:

(a) No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing;

(b) Except as provided in subdivision (g) of this section and except when a special hazard exists that requires lower speed for compliance with subdivision (a) of this section or when maximum speed limits have been established as hereinafter authorized, no personal shall drive a vehicle at a speed in excess of fifty five miles per hour;

(e) The driver of every vehicle shall, consistent with the requirements of subdivision (a) of this section, drive at an appropriate reduced speed when approaching and crossing an intersection ... and when any special hazard exists with respect to pedestrians, or other traffic by reason of weather ....

In a recent Second Department case the Court reviewed the rules with regard to a left turning vehicle at an intersection with a green light. In Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 520, 813 N.Y.S.2d 120 (2d Dep't 2006), it was held that the straight driving vehicle had the right of way and the driver "was entitled to anticipate that the plaintiff would obey the traffic laws which required him to yield to the defendant's vehicle." In Gabler the plaintiff left turning driver conceded that he never saw the defendant's vehicle prior to making his left turn and it was held that he "was negligent as a matter of law in failing to see that which he should have seen through the proper use of his senses." Id. Here, there is no such proof of Saint not seeing the defendant's vehicle.

It is also axiomatic that not every left turning driver is totally responsible for a collision with a straightaway driver. In Luck v. Tellier, 222 A.D.2d 783, 784-785, 634 N.Y.S.2d 814, 815 (3d Dep't 1995), the defendant driver of a left turning vehicle, that crossed in front of the plaintiff's straightaway motorcycle, pleaded guilty to violating VTL § 1141. However, at the personal injury trial, the defendant driver denied that he was negligent, claiming that it was foggy and raining at the time of the collision and that he never saw the plaintiff motorcycle because its light was "dim." In denying the plaintiff's motion for summary judgment, the Court held that, notwithstanding the plea of guilty to VTL § 1141, the defendant was not foreclosed from proving that he "exercised reasonable care in an effort to comply with the statute, and, thus, his failure to do so should be excused." Id.

III. THE TRIAL

A) As to Liability

In an effort to ascertain whether there is any liability on the part of the T-T driver, the Court will now review what it considers to be the material testimony on this issue.

(1) The Plaintiff's Case on Liability

Kevin R. Theriault is an accident reconstruction expert. He was the only witness for the plaintiff on the issue of liability. He is trained in the field of accident reconstruction. In his field, he has done more than 850 accident reconstructions and over 700 of those situations involved tractor trailers. Theriault was retained in this matter by plaintiff's counsel and provided with the police reports, police photographs and statements from...