Wardwell v. US, 90-0085-B.

• Decision Date: 08 May 1991
• Docket Number: No. 90-0085-B.,90-0085-B.
• Parties: Karen WARDWELL, Individually and as Mother and Next Friend of Misty Wardwell and Stormy Wardwell, and Pauline Carter, as Mother and Next Friend of Amy Carter and Adam Carter, Plaintiffs, v. UNITED STATES of America, Defendant and Third Party Plaintiff, v. Anthony ARTHUR, Third Party Defendant.
• Court: U.S. District Court — District of Maine

764 F. Supp. 679

Karen WARDWELL, Individually and as Mother and Next Friend of Misty Wardwell and Stormy Wardwell, and Pauline Carter, as Mother and Next Friend of Amy Carter and Adam Carter, Plaintiffs, v. UNITED STATES of America, Defendant and Third Party Plaintiff, v. Anthony ARTHUR, Third Party Defendant.

No. 90-0085-B.

United States District Court, D. Maine.

May 8, 1991.

Bernard J. Kubetz, Eaton, Peabody, Bradford & Veague, Bangor, Me., for plaintiffs.

Nancy Torresen, Asst. U.S. Atty., Bangor, Me., for USA.

Stephen C. Whiting, Martica S. Douglas, Hewes, Douglas, Whiting & Quinn, Portland, Me., for Anthony Arthur.

Brett D. Baber, Rudman & Winchell, Bangor, Me., limited to defense of counterclaim by USA against Karen Wardwell.

OPINION AND ORDER

GENE CARTER, Chief Judge.

This matter comes before the Court for factfinding and final resolution of claims by Plaintiffs Karen Wardwell, on behalf of herself and as next friend to her minor children Stormy and Misty Wardwell, and Pauline Carter, as next friend to her minor children Adam and Amy Carter, arising out of an automobile accident on July 13, 1988. Plaintiffs' claims, which were tried before the Court without a jury on March 11 and 12, 1991, are brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.

I. FINDINGS OF FACT ON NEGLIGENCE

The Federal Tort Claims Act (hereinafter Act) provides that "the United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674. As a result, Plaintiffs bear the burden of establishing the liability of the United States by showing that a private individual would be liable under state law — Maine law, in this case — for similar conduct in the same circumstances. Platts v. United States, 658 F.Supp. 850, 853 (D.Me.1987) (Carter, J.) (citing United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963).

The respective liabilities of the parties herein were largely resolved by the pleadings, pretrial settlement,¹ and stipulations at trial. No counterclaims or crossclaims were made asserting that Karen Wardwell or the children were responsible for any act or omission which proximately caused the accident. Defendant United States has counterclaimed against Karen Wardwell for contribution and indemnity asserting that her failure to require the use of seatbelts by the minor children who were passengers in her van constituted negligence proximately causing the injuries to the children.²

Third Party Defendant Anthony Arthur brought no claims against Defendant United States. Defendant United States dismissed its cross-claims for indemnity and contribution against Anthony Arthur at trial, and entered into an agreement with Plaintiffs which resulted in three stipulations: (1) Anthony Arthur was causally negligent;³ (2) Anthony Arthur settled Plaintiffs' claims against him as follows: Karen Wardwell — $50,000.00, Misty Wardwell—$6,166.50, Stormy Wardwell — $3,083.33, Adam Carter — $3,083.33, Amy Carter — $6,166.50; and (3) the amount of any individual verdict which may be rendered against Defendant will be reduced by the amount of each Plaintiff's settlement with Arthur, as provided by 14 M.R.S.A. section 163.⁴ Thus, only two sets of liability issues must be decided. First, whether Jack Neelley, an agent of Defendant United States, was negligent, and whether Neelley's alleged negligence proximately caused the accident. Second, whether Karen Wardwell was negligent in not requiring the four children in her motor vehicle to wear seat belts, and whether Wardwell's alleged negligence proximately caused the children's injuries.

The parties do not dispute most of the facts surrounding the automobile accident. Karen Wardwell was driving a van east on Route 1 toward the intersection of Route 1 and Upper Falls Road in Orland, Maine.⁵ The van was in the left lane of the two lanes heading east. Stormy Wardwell and Amy Carter were seated together in the front bucket seat of the van. Misty Wardwell and Adam Carter were riding in the back seat. None of the passengers were wearing the seat belts with which the van was equipped. A forty-five-miles-per-hour speed limit was in effect in both directions on this stretch of Route 1.

Jack Neelley, a meat and produce specialist for the Department of Navy, was driving west on Route 1 in a station wagon owned by the Defendant United States.⁶ Neelley was travelling behind a van which was pulling a pop-up camper. Anthony Arthur was behind Neelley in his Mitsubishi Cordia, and John Fox was behind Arthur. Westbound Route 1 changes from a one-lane road to a two-lane road as it climbs a long, slow incline approaching the intersection with Upper Falls Road. The van and camper, Neelley, Arthur, and Fox were all in the interior, or left, westbound lane after Route 1 expanded to two westbound lanes.

The events leading to the accident began when Neelley moved to enter the right westbound lane. Before he was able to enter that lane, Neelley was forced to swerve back into the left lane to avoid hitting Arthur's car, which was attempting to pass Neelley and the van and camper on the right. Arthur also swerved, driving onto the gravel-covered shoulder to avoid a collision with Neelley's car. Arthur's car went out of control, "fishtailed" on the shoulder, and eventually shot across both westbound lanes and collided with the camper. The camper "exploded"⁷ off the back of the van and was propelled into the eastbound lanes where it smashed into the van driven by Karen Wardwell. All of the occupants of the Wardwell van were injured as a result of the accident.

Both Anthony Arthur and John Fox testified that they had been following Neelley for some time on Route 1 before they reached the approach to Upper Falls Road. Neelley did not remember having seen Arthur's car, even though he testified that he had checked his mirrors, signalled, and looked over his shoulder before he attempted to enter the right lane. He admitted having seen "a shadow," but not a car, in the right lane. His rear view was unobstructed for more than four or five car lengths, but it was not until the last minute that he realized that the "shadow" was, in fact, Arthur's car. Neelley admitted that he had no explanation for his failure to see Arthur's car.

Both Arthur and Fox testified that Arthur's car was in the right lane and advancing on Neelley's car before Neelley moved to enter the right lane. Neelley's car was only one-third of a car length ahead of Arthur's when Neelley attempted to change lanes. The Court finds that Arthur was, in fact, in the right lane and available to be seen by Neelley before he attempted to enter the right lane. One of Maine's "rules of the road" is that drivers are legally bound to see that which is open and apparent. See Lyman v. Bourque, 374 A.2d 588, 589 (Me.1977). Arthur's car was openly and apparently positioned in the right lane, and Neelley should have seen it. As a result, Neelley's failure to see Arthur's car, and his subsequent lane change, constituted negligence. On the other hand, the Court finds that the danger presented by Neelley's car could not have become apparent to Arthur until Neelley had already begun to encroach on the right lane. Arthur saw the danger as soon as it was available to be seen and acted reasonably to avoid the danger.

In addition, the Court finds that Neelley's negligence proximately caused the events which ultimately resulted in the accident involving the Wardwell van. As a direct and necessary consequence of Neelley's failure to see Arthur and Neelley's attempt to enter the right lane, Arthur was forced to swerve onto the gravel shoulder. Arthur's necessary reaction, combined with the gravel surface on the shoulder, caused Arthur to lose control of his car and collide with the camper. In turn, that collision caused the camper to slam into the Wardwell van. Neelley's negligence was the "but for" cause of each of these events; that is, Neelley's negligence was a proximate, necessary, and efficient cause of the events.

Defendant argues that Arthur's negligence, which allegedly consisted of driving at an excessive speed, was an independent and efficient cause of the accident, thereby superseding Neelley's negligence and vitiating Defendant's liability. See generally Johnson v. Dubois, 256 A.2d 733, 734 (Me. 1969). There was conflicting testimony as to Arthur's speed. Gerald Kuhn, the driver of the van which was pulling the camper, testified that he was travelling between fifty and fifty-five miles per hour at the time of the accident. However, Kuhn also admitted that he did not see the accident because he was positioned in front of Neelley's car. Kuhn could not have had an accurate sense of the timing of the relevant events. Neelley also testified that he was travelling at approximately fifty or fifty-five miles per hour; however, Neelley's testimony was generally not credible and consisted of little more than a string of self-serving statements.

Both Arthur and Fox⁸ testified that they were travelling at a speed between forty and forty-five miles per hour. Maine law defines drivers' duty as follows:

Any person driving a vehicle on a way or in any other place shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the way or place, and of any other conditions then existing.

29 M.R.S.A. § 1252(1). See also Olsen v. French, 456 A.2d 869, 877 (Me.1983) ("the statute articulates the all-inclusive duty owed at common law by motorists on our public ways"). The Court finds that, even inferring from the facts evinced at trial that Arthur increased his speed in order to pass Neelley, there is an insufficient basis in the record for concluding either that Arthur was exceeding the posted speed limit or violating the duty to...