Voccia v. United States

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: MATSUMOTO, United States District Judge
• Decision Date: 31 March 2017
• Docket Number: 12-CV-05909(KAM)(SMG)
• Citation: Voccia v. United States, 12-CV-05909(KAM)(SMG) (E.D. N.Y. Mar 31, 2017)
• Parties: MARIO VOCCIA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

MARIO VOCCIA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

12-CV-05909(KAM)(SMG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 31, 2017

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MATSUMOTO, United States District Judge:

Plaintiff Mario Voccia commenced this action against the United States of America ("defendant"), pursuant to the Federal Tort Claims Act ("FTCA") 28 U.S.C §§ 2671, et seq., seeking damages for a head injury he claims to have suffered in July 2008, when he allegedly was negligently assisted by VA personnel into a shuttle van owned and operated by the United States Department of Veterans' Affairs (the "VA"). The liability portion of the claim was tried before this court on July 12 and July 13, 2016. (See generally, Trial Transcript ("Tr.").)

Having considered the evidence at trial, assessed the credibility of the witnesses, and reviewed the post-trial submissions of the parties,¹ the court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure² ("Rule 52") and ultimately concludes, for the reasons set forth below, that plaintiff has failed to prove that the United States is liable for his injury.

FINDINGS OF FACT

I. Background

A. The Relevant Individuals

Plaintiff was 52 years old at the time of the July 8, 2008 accident that is the subject of this lawsuit (the "Accident").³ (Tr. 80:3-5.) At that time, he wore reading glasses but did not need prescription eyeglasses or contacts for distance vision. He had no issues or limitations with walking short distances or climbing stairs. (Tr. 123:4-124:2.) Plaintiff was about five feet and ten inches tall, and weighed approximately 180 pounds at the time of the Accident in July 2008. (Tr. 122:22-123:3.)

Lou Guo has been employed by the VA as a shuttle driver since 2004. (Tr. 16:18-25.) Mr. Guo was the driver of the VA shuttle involved in the Accident. (Tr. 16:18-23.) At the time of the Accident, Mr. Guo was approximately five feet and five inches tall, and weighed approximately 150 pounds. (Tr. 72:6-17.)

Dewton Williams has been employed by the VA since 2006, initially as a shuttle driver, then as a Motor Vehicle Operator Leader, and currently as a transportation supervisor. At the time of the Accident, Mr. Williams' title was Motor Vehicle Operator Leader. (Tr. 175:5-9, 175:17-21, 176:3-5.) Mr. Williams was the supervisor who responded to the Accident after being called by Mr. Guo. (Tr. 133:6-14, 134:6-13.)

Sgt. Paul Annitto has been a VA Police Officer since 2004, and currently holds the title of Sergeant. (Tr. 192:24-193:8.) Sgt. Annitto also responded to the Accident after being called by Mr. Guo. (Tr. 194:8-11.)

B. The VA Shuttle

At the time of the Accident, the VA operated a courtesy shuttle which transported patients between its New York City metropolitan area facilities. (Tr. 133:22-134:5.) Passengers who wished to take the shuttle arranged to place their names on a list, which was referred to as the passenger manifest. (Trial Exhibit ("Ex.") 3.) The VA courtesy shuttle the plaintiff was enteringwhen the Accident occurred was a 2008 Chevy Express Passenger Van (the "Shuttle"). (Exs. 1, J.) Plaintiff had ridden the shuttle, which used the same type of vehicle, at least twenty times prior to the July 8, 2008 Accident. (Tr. 119:21-120:2.) Passengers entered and exited the Shuttle through double doors on the passenger side of the van (the "Passenger Doors"). (Ex. J; Tr. 30:15-20, 85:17-23, 142:2-13.) The Passenger Doors were held closed by a U-shaped metal latch located at the top, in the middle, of the Passenger Doors (the "Latch"). The Latch was attached by the manufacturer to the Shuttle's ceiling. (Ex. J; Tr. 34:5-14, 157:22- 158:2.) The Latch was visible and unobscured, when the Passenger Doors were open, to someone preparing to enter the Shuttle through the Passenger Doors. (Tr. 177:9-12.)

In July 2008, VA shuttle drivers placed a stepstool in front of the Passenger Doors for passengers to use, if they wished, when entering and exiting the shuttle. (Tr. 145:19-21.) Although no evidence was proffered concerning the stepstool's dimensions, lay witnesses estimated that the top of the stepstool was approximately halfway between the ground and the Shuttle's first step and noted that the stepstool was not as wide as the Passenger Doors. (Tr. 43:24-44:6, 151:4-8, 182:6-7.) No evidence was presented concerning any industry standard requiring that a stepstool be provided for passengers to use when entering theShuttle. (Tr. 225:23-226:13.)

During his testimony, VA shuttle driver Lou Guo explained the general procedure he used in July 2008, when boarding passengers onto the shuttle. Mr. Guo first would park the shuttle in the shuttle loading area, lock the doors, and go into the office and obtain a copy of the manifest. He would then return to the shuttle, unlock the Passenger Doors, take the stepstool out of the shuttle, place it on the ground in front of the Passenger Doors, and call the passengers' names from the manifest. He explained that each shuttle had a stepstool which was stored either under the front passenger seat or in the back of the shuttle. (Tr. 42:4-43:23; see also Tr. 177:17-178:2.)

II. The Accident

On July 8, 2008, plaintiff's name was listed as a passenger on the manifest for the 12:30 p.m. shuttle. (Ex. 3.) Each of the shuttles, on which plaintiff rode at least twenty times before the Accident, had the same double doorway with the central latch through which passengers entered and exited the van. (Tr. 119:21-120:2.)

Plaintiff had ridden the Shuttle many times before the Accident and, therefore, was generally familiar with the Shuttle's configuration, including the latch at the top of the Shuttle's entryway. (Tr. 124:3-12.) Plaintiff was initially unable to boardthe Shuttle because there was no seat available when he attempted to do so. However, another passenger got off and a seat then became available for plaintiff. (Tr. 87:16-88:1, 100:8-15, 141:8-14.) Plaintiff then proceeded to board the Shuttle. He did not slip or trip while doing so. (Tr. 129:17-21.) He was injured when he bumped his head on the Latch. (Tr. 112:25-113:2.)

A. Evidence Concerning the Presence of the Stepstool

Plaintiff testified at trial that he did not see a stepstool at any point on the day of the Accident. (Tr. 88:2-13, 102:11-19, 124:13-15.) Mr. Guo testified that putting the stepstool in place for boarding and alighting was part of his job and his usual custom and practice. He also testified that he had no reason to believe that he deviated from his usual practice of putting the stepstool in place for boarding and alighting on the day of the Accident. (Tr. 72:18-73:11, 73:24-74:19, 75:7-14.) The court finds Mr. Guo's testimony to be credible.

Further, VA Transportation Supervisor Dewton Williams largely corroborated Mr. Guo's testimony. Mr. Williams testified that shortly before the Accident, Mr. Guo called and asked him to come to the shuttle loading area to assist with an issue that had arisen with a passenger who had boarded the Shuttle even though his name was not on the passenger manifest. (Tr. 134:6-19, 139:24-140:5.) Mr. Williams testified that when he arrived at the shuttleloading area, the stepstool was in front of the Passenger Doors, and neither he, nor anyone else, removed the stepstool at any point between when he got to the shuttle loading area and when plaintiff boarded the Shuttle. (Tr. 151:14-19, 184:7-12.) Mr. Williams explained, just like Mr. Guo did, that setting the stepstool in front of the Passenger Doors was part of the general process drivers used in July 2008, before passengers entered and exited the shuttle. (Tr. 72:18-24, 177:17-178:2.) Mr. Williams testified that he always ensured that the stepstool was in place when he was overseeing boarding and that he would not have allowed the boarding process to proceed without the stepstool being in place. (Tr. 178:6-8, 183:16-184:16.) The court finds Mr. Williams testified credibly.

Defendant argues that the court should not credit plaintiff's trial testimony that he never saw the stepstool at any time on the day of the Accident because his prior statement contradicted his trial testimony. (Def. Mem. at ¶ 17; Tr. 88:2-13, 102:11-19, 124:13-15; Ex. B.) Specifically, defendant notes that on June 20, 2011, plaintiff prepared a written statement recounting the events surrounding the Accident (the "June 2011 Statement"). In his June 2011 Statement, plaintiff stated: "As the driver pulled up, opened the doors, and put the stepstool down so people can board, passengers jumped in the van." (Ex. B(emphasis added); Tr. 126:12-127:6; Def. Mem. at ¶ 17.) Plaintiff argues that his earlier, June 2011 statements were not inconsistent with his testimony because the statement that the driver "put the stepstool down" referred to the point in time when the other passengers boarded the van not when plaintiff boarded the van. (Pl. Opp. at ¶ 3.)

Plaintiff also objects to his June 2011 Statement being admitted to evidence because defendant did not lay the proper foundation to support its admission. (Id.) The court finds that defendant elicited testimony from plaintiff that laid a sufficient foundation for admission of plaintiff's June 2011 Statement into evidence. Further, plaintiff's counsel did not object to June 2011 Statement being admitted into evidence at trial; therefore, plaintiff's objections to the admissibility of his June 2011 Statement have been waived. (Tr. 126:5-10.) See Fed. R. Evid. 103(a)(1); United States v. Yu-Leung, 51 F.3d 1116, 1120 (2d Cir. 1995) ("To be timely, an objection . . . must be made as soon as the ground of it is known, or reasonably should have been known to the objector.") (citation and internal quotation marks omitted).

The court finds that plaintiff's earlier statements, including his June 2011 Statement and others, regarding the presence of the stepstool at the time of the Accident are...