Yeary v. US, Civ. No. 89-CV-73547-DT.

• Decision Date: 08 January 1991
• Docket Number: Civ. No. 89-CV-73547-DT.
• Parties: Opal Hicks YEARY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Michigan

754 F. Supp. 546

Opal Hicks YEARY, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 89-CV-73547-DT.

United States District Court, E.D. Michigan, S.D.

January 8, 1991.

COPYRIGHT MATERIAL OMITTED

L. Eugene Hunt, Jr., Dearborn, Mich., for plaintiff.

William L. Woodward, U.S. Atty.'s Office, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

This action against the United States was filed pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 and 2671-2680. It arises from a traffic accident involving the plaintiff, a pedestrian, and a vehicle operated by an employee of the United States Postal Service. The employee, a letter carrier, was at all times acting within the scope of his employment. This opinion constitutes the findings of fact and conclusions of law of the court, after trial to the bench.

Plaintiff seeks damages for serious impairment of bodily function and permanent serious disfigurement under Michigan's No-Fault Automobile Insurance Act, M.C. L.A. § 500.3135. She was a woman of sixty-eight (68) years of age at the time of the accident, and seeks damages for a fractured dominant left wrist, fractured left ankle, and for current back pain allegedly caused by the accident. In addition, plaintiff seeks to recover for aggravation of a carpal tunnel syndrome condition in the left wrist. There is no claim for lost income or other economic damages.

On Saturday, June 11, 1988, plaintiff attempted to cross a major thoroughfare, Nine Mile Road in the city of Hazel Park, on her way home from Smiley's Hair Care Salon, at approximately 10:00 a.m. Although it was plaintiff's usual practice to cross Nine Mile Road at this point after her Saturday morning appointments, the corner was not a designated pedestrian crosswalk. Plaintiff mistakenly believed that the traffic stop bar painted across the westbound lanes of Nine Mile Road at Carlisle constituted a pedestrian crosswalk, although it was in fact merely an indication that cars stopped for a light in the next block must not block the side street, Carlisle.

The postal driver had just left the Post Office and was in the process of emerging from Carlisle onto Nine Mile to commence his route at the time of the accident. He was driving a red 1987 Chevrolet Chevette which was owned by the United States Postal Service. He drove southbound from the Post Office lot on Carlisle Street and stopped at the intersection at Nine Mile Road, which had no traffic lights. Traffic on Nine Mile Road is heavy, as it is a five lane business thoroughfare. It was his intention to make a left turn onto Nine Mile Road and to proceed eastward. As the driver was attempting to make the turn and watching oncoming cars, plaintiff walked south from the northeast Carlisle corner, halfway across the street and stepped into his path. He immediately braked his automobile in an effort to avoid colliding with her. However, he could not then avoid striking plaintiff, and did so with the side of the left front fender of his automobile. Plaintiff did not see the postal vehicle emerge from Carlisle behind her as she crossed the street until the moment just before impact, when it turned in front of her and she hit the left front fender. At the time of the collision, plaintiff fell forward onto the side of the fender, and then fell backward onto the pavement, landing on her left side. The postman stopped the vehicle immediately next to the plaintiff in an eastbound lane of Nine Mile Road. A passing bus driver immediately summoned the police and the Emergency Medical Service (EMS).

I. JURISDICTION

The Federal Tort Claims Act constitutes a limited waiver of sovereign immunity and authorizes suit against the United States, making the federal government liable in the same manner and to the same extent as a private party would be for certain torts of federal employees acting within the scope of their employment. Schindler v. United States of America, 661 F.2d 552, 554 n. 2 (6th Cir.1981).

The United States District Courts have exclusive jurisdiction of civil actions on claims against the United States for money damages caused by the negligent or wrongful act of any employee of the Government while acting within the scope of employment. 28 U.S.C. § 1346(b).

In such cases, the Courts must follow the law of the state in which the allegedly negligent or wrongful act occurred. Schindler, supra, involved a claim under the FTCA for negligent licensing. 661 F.2d at 552. In applying the FTCA, the Court set forth the elements of a cause of action for tortious injury under Michigan law. The Court stated,

"In applying the FTCA, the court must use state law pertaining to private persons ... to determine if these elements are present." Id. at 560.

II. COMPARATIVE NEGLIGENCE

Michigan has adopted the doctrine of pure comparative negligence. Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979). A plaintiff's recovery of damages for negligence must be reduced to the degree of the plaintiff's own negligent contribution to the injury. Id. at 405 Mich. 639, 275 N.W.2d 511.

It is well-settled case law that a pedestrian, before crossing a street or highway, must exercise that degree of care and caution which an ordinarily careful and prudent person would exercise under like circumstances. Malone v. Vining, 313 Mich. 315, 21 N.W.2d 144 (1946).

Although a defendant is guilty of negligence, "this does not absolve the pedestrian from looking while crossing the street, which is what any ordinarily prudent person should do when crossing the street at a busy intersection. Maintaining one's right-of-way in the face of obvious danger ... may ultimately result in disaster." Day v. Troyer, 341 Mich. 189, 197, 67 N.W.2d 74 (Mich.1954).

The above-quoted case is, notably, one in which the comparatively negligent plaintiff had the right-of-way. In this case, the government admits the negligence of its driver. The court finds, however, that plaintiff was also clearly negligent under the circumstances, for each of the reasons outlined below.

A. Illegal Crossing

It was illegal for plaintiff to cross Nine Mile Road at the Carlisle Street intersection. The City of Hazel Park has adopted, by ordinance, the State of Michigan's Uniform Traffic Code. Section 7.10 of that code prohibits pedestrians from crossing a business street other than in a crosswalk. Since plaintiff attempted to cross Nine Mile Road (a statutory business street, because of the commercial establishments on it) where there was no crosswalk, she was in violation of the ordinance.

In Michigan, a violation of an ordinance is evidence of negligence. Hodgdon v. Barr, 334 Mich. 60, 53 N.W.2d 844 (1952); Stinson v. Payne, 231 Mich. 158, 203 N.W. 831 (1925). As such, plaintiff is negligent for violating a regulation promulgated under a state statute.

B. Failure to Recognize Stop Bar

Plaintiff was negligent in believing that the "stop bar" across the westbound lanes of Nine Mile Road designated that area as a pedestrian crosswalk. There is no sign indicating that pedestrian crossing is allowed in the section where plaintiff crossed, and indeed it is not. Plaintiff has been a licensed Michigan driver for many years. Her failure to recognize the white line as a stop bar instead of a crosswalk is evidence of negligence.

C. Sidewalk Configuration

There is a grassy berm on each side of Nine Mile Road between the curb and the sidewalk, suggesting clearly that no pedestrian access to Nine Mile Road is intended or provided at that corner. The sidewalks of Carlisle Street stop at the Nine Mile Road sidewalk, and do not extend to the Nine Mile Road curb. A pedestrian attempting to cross Nine Mile Road at Carlisle must, therefore, leave the sidewalk and walk across the grassy berm to reach the street. This sidewalk configuration alone should have made plaintiff aware that there is no pedestrian crossing allowed across Nine Mile Road at Carlisle Street.

D. Heavy Traffic/Congested Conditions

It is only reasonable to expect that plaintiff should have known that heavy, fast traffic and congested conditions make any crossing of multilaned Nine Mile Road, without a light at Carlisle Street, extremely hazardous. She had lived in this vicinity and been a Smiley's patron for over twenty years. Although she testified that other pedestrians occasionally cross the street at this intersection, this does not relieve plaintiff of her obligation to use the degree of care and caution which an ordinarily careful and prudent person of her own capacities would exercise under like circumstances. Id. at 313 Mich. 321, 21 N.W.2d 144. A crossing at this point can only be made speedily, during a break in the heavy flow of five lanes.

E. Failure to Use Safe and Lawful Alternatives

Plaintiff had safe, lawful, and more convenient alternatives for crossing Nine Mile Road which for some reason she habitually ignored. She testified at trial that it was her practice after walking one block west to illegally cross Nine Mile, to then walk two blocks east on the south side to reach a pedestrian bridge to cross the I-75 expressway which also lay between her home and Smiley's. The shortest route to this bridge would have called for plaintiff to walk from Smiley's east on the north side of Nine Mile Road to its intersection with Highland, where there is both a traffic light and later a pedestrian crosswalk across the expressway. Plaintiff instead walked one block west from Smiley's to Carlisle, where she attempted to cross Nine Mile Road at an uncontrolled corner, and would then have had to double back two blocks to Highland in order to cross the pedestrian bridge over the expressway to her street. Plaintiff's route was not only unlawful and unsafe, but it was far more inconvenient than a lawful route would have been. Clearly, she had not given a reasonable degree of thought or care to the walk she took home, weekly.

Alternatively, pla...