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LARISCY v. UNITED STATES

March 5, 1987

Irma D. Lariscy, Plaintiff,
v.
United States of America, Defendant



The opinion of the court was delivered by: GREENE

 Plaintiff Irma D. Lariscy has brought this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (1986), for personal injuries that stem from an automobile accident on March 13, 1985. She claims permanent injuries and seeks $3 million in damages. Trial was held before the Court on December 15 and 16, 1986. After reviewing the evidence, the Court finds that plaintiff has proved that her injuries resulted from the negligent driving of defendant's agent. Judgment will be entered in favor of plaintiff in the amount of $49,326.

 I

 The evidence in this case revealed the following series of events. On March 13, 1985, at approximately 2:30 p.m., plaintiff was driving her car south on Vermont Avenue, N.W., in Washington, D.C. *fn1" She was heading for the K Street intersection. Plaintiff signaled for a left turn and checked to see that all traffic approaching from the south was lined up to turn left, westbound onto K Street. She began to make her own left turn, eastbound onto K Street.

 At the same time, Michael G. Camp was driving a stationwagon owned by the Drug Enforcement Administration. Mr. Camp was driving the vehicle in the course and scope of his employment. *fn2" He headed north on 15th Street toward K Street, intending to continue up Vermont Avenue. According to the testimony of Christopher Bach, an uninvolved eyewitness, *fn3" Mr. Camp was driving directly toward the line of cars that were waiting to turn left onto K Street, when he swerved to the right in order to pass them. Officer Frank Strother of the Metropolitan Police Department, the accident investigator who arrived at the scene shortly after the accident, testified that 15th Street has only one lane in each direction, so that Mr. Camp was "making an extra lane" for himself. Moreover, Mr. Bach testified that Mr. Camp was driving "at a rapid speed," about 30 to 35 miles per hour -- a speed consistent with Officer Strother's measure of four feet of post-crash skid marks. *fn4" By this time, plaintiff had begun her turn and was crossing the intersection. The front end of the DEA vehicle crashed into plaintiff's right front fender and passenger door. Another uninvolved eyewitness, Wendell Ellerbe, testified that "there was nothing [plaintiff] could do" to avoid the accident. *fn5"

 II

 The determination of liability in this case is not difficult. Defendant's uncontroverted failure to obey the speed limit and sudden swerving into his own "lane" are clear evidence of negligence. See D.C. Mun. Regs. §§ 18-2200.5-.6, -2201.8(a), -2208.6 (1981). The only substantial question on liability is whether plaintiff was contributorily negligent.

 In order for plaintiff's claim to be barred by contributorily negligence, defendant must prove by a preponderance of the evidence that plaintiff breached her common law duty to drive in a reasonable safe manner or inexplicably violated a traffic regulation. See Richardson v. Gregory, 108 U.S. App. D.C. 263, 281 F.2d 626 (D.C. Cir. 1960). Defendant has failed to do this.

 The right of way in this situation is covered by D.C. Mun. Reg. § 2208.6. That section provides:

 
the driver of a vehicle within an intersection intending to turn to the left 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; provided, that after a driver has so yielded and has given a signal, as required by this chapter, the driver may make the left turn and the drivers of all other vehicles approaching the intersection from the opposite direction shall yield the right-of-way to the vehicle making the left turn.

 It is clear from the testimony, however, that when plaintiff began her turn, defendant's vehicle was neither "in the intersection" nor "so close as to constitute an immediate hazard." In fact, defendant's vehicle was hidden behind a line of left-turning cars until he swerved into the intersection at a high rate of speed. Plaintiff had checked the intersection, found it empty, signaled, and began her turn. According to Officer Strother, she violated no traffic regulations. Given these facts, defendant has not met its burden in showing that plaintiff was contributorily negligent. *fn6" See Frager v. Pecot, 327 A.2d 306 (D.C. App. 1974). Consequently, the Court concludes that defendant is liable for all damages proximately caused by this accident.

 III

 The much more difficult question in this case is the appropriate award of damages. Plaintiff, who worked as a "comparison shopper" for Dart Drug and also operated her own video game business, alleges that as a result of this accident she has suffered a complete loss of earnings and earning capacity -- that is, that she will never be able to work again, although she is now only 31 years old. Plaintiff also seeks to recover for past and future medical expenses, as well as damages for pain and suffering. Her purported injuries include relentless headaches; shoulder and neck pain; increasing parathesias and weakness in her upper extremeties; nerve damage; and depression and emotional anxiety. She claims that these conditions will require the continued treatment of a neurosurgeon and psychiatrist, and perhaps neurosurgery. She claims that these injuries are permanent.

 These claims are made much more difficult to evaluate by the fact that plaintiff suffered similar injuries when she was hit by a truck in 1979. After that accident, she underwent surgery to remove some cervical bone, and underwent treatment by a neurosurgeon through 1982. *fn7" This neurosurgeon, Dr. Sharon Marselas, testified that plaintiff had "considerable residual impairment" of her right arm after the first surgery -- before the instant accident -- and would experience pain and numbness that could not improve. Dr. Marselas testified that plaintiff's right arm showed a large degree of prior abnormality that "may have been" aggravated by this event. In fact, Dr. Marselas' records of October 27, 1982 already document chronic and increasing nerve damage, as well as right arm and ...


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