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GREEN v. UNITED STATES

January 14, 1998

JAMES F. GREEN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: HARRIS

 This personal injury action arises under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. On September 22, 1992, plaintiff was walking northbound on Anacostia Park Drive in Anacostia Park in Washington, D.C., when he was hit from behind by a motorcycle operated by Officer Jack P. Williams of the United States Park Police ("USPP"), National Park Service, Department of the Interior. At the time of the accident, Officer Williams was riding a USPP motorcycle and was acting within the scope of his official duties.

 Plaintiff alleges that Officer Williams's negligent operation of his police motorcycle caused various injuries to plaintiff's head, back, and ankle. In addition to medical expenses associated with the accident, which total $ 5,047.00, plaintiff seeks to recover for pain and suffering, future medical expenses, and past and future loss of earnings, plus the costs of the instant action.

 Defendant contends that Officer Williams was not negligent in his operation of the motorcycle. Moreover, defendant contends that, even if the officer was negligent, plaintiff's recovery nevertheless would be precluded because he was contributorily negligent and because he assumed the risk of his injuries. Defendant also contends that plaintiff has not established damages, save the medical expenses associated with the accident.

 The Court conducted a bench trial. This Opinion sets forth the Court's findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a). Based on the credible evidence presented at trial, the Court concludes that (1) Officer Williams was not negligent in his operation of the USPP motorcycle, and therefore that recovery is not available under the FTCA, 28 U.S.C. § 2675(a), and that (2) even if Williams was negligent, plaintiff's recovery would be precluded both by his own contributory negligence and by his assumption of risk. Because the Court concludes that defendant is not liable for plaintiff's injuries, it does not address the issue of damages.

 Findings of Fact

 On September 22, 1992, plaintiff, then a 63-year-old retiree, was walking northbound, facing traffic, on Anacostia Park Drive. A sign posted by the roadway warned vehicles and pedestrians alike that they might be confronted by "multi-purpose" traffic. *fn1"

 While he was walking, plaintiff saw two large construction trucks traveling toward him. He concluded that there was no room for him to stay on the west side of Anacostia Park Drive and crossed to the east side of the road, where he was headed northbound and walking in the direction of traffic.

 Prior to the accident, he walked in the concrete gutter portion of the road. There is a grass or unpaved area next to the road that is used by pedestrians and joggers. There were no obstacles that would have prevented plaintiff from walking alongside, rather than in, the roadway. Although plaintiff testified at trial that there was an obstacle that prevented his walking alongside the roadway, he was unable to identify any such obstacle on any of the photographs that were taken immediately after the accident. The Court thus does not find this testimony credible.

 Officer Williams, a certified motorcycle instructor who was traveling northbound on a Harley-Davidson motorcycle at 20 miles per hour, observed plaintiff at a distance of 100 approximately feet; plaintiff was seen to be in the concrete gutter. Officer Williams was traveling on the right side of the roadway because trucks were approaching from the opposite direction. *fn2" When the motorcycle was about ten feet from plaintiff, plaintiff took two or three steps diagonally to the left. *fn3" Plaintiff stepped suddenly, and without looking to see whether traffic was approaching, into the path of the motorcycle. Officer Williams attempted to swerve out of plaintiff's way, sounded his horn, and applied his brakes. *fn4" Despite these efforts, and because of the short distance, he was unable to avoid hitting plaintiff. Plaintiff was hit in the rear by the front of the motorcycle; the rear of his head struck the windshield. Officer Williams was thrown from the motorcycle, which fell to the right, rotated nearly 180 degrees, and left gouge marks in the asphalt road. Plaintiff sustained injuries to his back, head, and ankle as a result of the accident. He was transported to the District of Columbia General Hospital, where he was treated for contusions and lacerations, and released. *fn5"

 Sergeant McGovern was the investigating officer. He took photographs of the accident site soon after the accident. The faint tire mark, which is consistent with the size and shape of Harley-Davison tires, on these photographs shows the approximate location where Officer Williams first applied his brakes. The tire mark shows that the impact with plaintiff occurred in the asphalt roadway, several feet from the concrete gutter. The resting place of the motorcycle and the gouge marks in the asphalt confirm that the accident occurred on the asphalt portion of the roadway. The evidence that the impact occurred in the roadway supports the Court's finding that plaintiff had stepped into the roadway prior to the impact.

 Conclusions of Law

 The FTCA provides a basis for recovery against the United States for the negligent and wrongful actions of its employees. 28 U.S.C. § 2675. The potential liability of the United States is governed by the law of the jurisdiction in which the alleged negligent or wrongful act occurred. 28 U.S.C. § 2674. In the District of Columbia, there is liability for negligence only where there is a duty, a breach of that duty, and injury proximately caused by that breach. Williams v. Baker, 572 A.2d 1062 (D.C. 1990). A breach of duty may be said to occur from the violation of a common-law duty, such as the duty to exercise ordinary or reasonable care, *fn6" or from the violation of a municipal ordinance. Schneider v. District of Columbia Transit Sys., 188 F. Supp. 786 (D.D.C. 1960).

 Here, the testimony of the witnesses and other evidence adduced at trial does not demonstrate by a preponderance of the evidence that Officer Williams's operation of the motorcycle was "negligent or wrongful." Accordingly, plaintiff cannot recover under the FTCA. See 28 U.S.C. § 2675(a). Officer Williams, who was experienced and a certified motorcycle instructor, was traveling at the posted speed limit of 20 miles per hour. His traveling in the right portion of the lane, which is less safe for pedestrians, was reasonable under the circumstances, as approaching truck-traffic made riding in the left portion impractical, and as plaintiff was initially in the concrete gutter, rather than in the roadway. Moreover, there was no showing at trial that riding in the right is "unsafe," and the Court observes, in any event, that a motorcycle traveling on the right poses no greater threat to pedestrians than a car, as a motorcycle on the right portion of the road travels in the same area as the right side of an automobile. In addition, when Officer Williams saw plaintiff in the roadway only some ten feet away, he swerved, sounded his ...


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