United States District Court, D. Columbia
Kevin Connor, Plaintiff: Kelly J. Fisher, LEAD ATTORNEY,
William P. Lightfoot, KOONZ, MCKENNEY, JOHNSON, DEPAOLIS &
LIGHTFOOT, LLP, Washington, DC USA.
United States of America, Defendant: Heather D.
Graham-Oliver, Jodi George, LEAD ATTORNEYS, U.S.
ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA,
Washington, DC USA; Carl Ezekiel Ross, U.S. ATTORNEY'S
OFFICE, Washington, DC USA.
OPINION SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF
S. CHUTKAN, United States District Judge.
Kevin Connor sued the United States, pursuant to the Federal
Tort Claims Act, 28 U.S.C. § § 1346(b) and 2671,
et seq. (the " FTCA" ), for damages that
he allegedly sustained when a United States Postal Service
(" USPS" ) truck hit the ambulance in which he was
travelling during an emergency run on December 7, 2012.
court conducted a four-day bench trial from June 29, 2015
through July 2, 2015, the parties filed post-trial briefs
(" PTBs" ) on August 25, 2015, and the court heard
closing arguments on September 9, 2015.
upon the evidence presented at trial, and having reviewed the
parties' submissions, the court makes the findings of
fact and conclusions of law set forth below. Based on these
findings of fact and conclusions of law, the court concludes
that Plaintiff has not sustained his burden of proof on his
negligence claim, and that judgment must therefore be entered
in favor of the United States.
while the court has determined that Plaintiff has carried his
burden of establishing by a preponderance of the evidence
that the driver of the USPS truck acted negligently in
causing the collision between his truck and the ambulance,
the court finds that Plaintiff has failed to carry his burden
of establishing by a preponderance of the evidence that the
accident was the proximate cause of his alleged injuries.
Given this finding, the court will not address the evidence
presented to it on mitigation and calculation of damages.
FINDINGS OF FACT
Whether Defendant's Negligence Caused The
witnesses testified about the facts and circumstances
surrounding the accident: (i) Plaintiff Kevin Connor; (ii)
ambulance driver Scott Leone; (iii) USPS truck driver John
Scott; and (iv) Tammie Creamer, Supervisor of Emergency
Dispatchers for the District of Columbia's Office of
Unified Communications. The court finds that all four
witnesses testified credibly about the accident.
court makes the following findings of fact regarding the
December 7, 2012 accident:
1. Plaintiff, D.C. Fire Department paramedic Kevin Connor,
was a passenger in the ambulance (Medic 5), which was being
driven by D.C. Fire Department firefighter/EMT Scott Leone.
(Pl. Ex. 21; T-47:5-11, 533:23-24).
2. At around 2:30 P.M., the D.C. Fire Department received an
emergency call reporting a person in medical distress inside
a D.C. Metro station. (Def. Ex. 9B; T-37:14-22, 48:5-12).
3. At around 2:30 P.M., Medic 5 was dispatched to respond to
the emergency. (Def. Ex. 9B; T-37:23-39:1).
4. Between 2:37 P.M. and 2:40 P.M., Connor radioed D.C. Fire
Department dispatch from Medic 5, which was en route to the
emergency, to state that he would bring a backboard down to
the Metro station. An emergency siren is clearly audible on
the dispatch recording. This siren was emanating from Medic
5. (Def. Ex. 9; T-33:9-34:10, 45:20-46:24).
a. The court bases its finding that the siren that is audible
during the radio transmission was emanating from Medic 5 on
Creamer's testimony that the siren was " definitely
a background noise [from] where the transmitting unit
was." (T-34:5-10). Though she could not testify with
certainty whether it was Medic 5's siren or the siren of
another emergency vehicle, there was no testimony or other
evidence indicating that there was another emergency vehicle
in the vicinity of Medic 5 at the time of the transmission.
(T-34:5-10, 35:11-18). Connor also testified that the siren
that can be heard during the transmission was emanating from
Medic 5. (T-45:20-46:24).
5. Medic 5 and the USPS truck collided at the intersection of
11th and P Streets in Northwest Washington, D.C. at around
2:45 P.M., while Medic 5 was en route to the emergency inside
the Metro station. (Def. Ex. 9A; T-29:8-20, 46:25-47:4).
6. At the time of the accident, the USPS truck, driven by
USPS employee John Scott, was travelling eastbound on P
Street through a green light. (T-523:8-16).
7. At the time of the accident, Medic 5 was travelling
southbound on 11th Street through a red light. (Pl. Ex. 21;
8. At the time of the accident, Medic 5's emergency
audible and visual signals were both activated. This finding
is based on the following:
a. The fact that, as noted above, Medic 5's emergency
siren was on during a radio transmission shortly before the
accident, and there was no testimony or other evidence
indicating that it had been turned off between the time of
that transmission and the moment of impact. (Def. Ex. 9;
b. Connor's testimony that, at the time of the accident,
Medic 5's emergency audible and visual signals were
operating. (T-48:13-19, 377:20-378:8).
c. Leone's December 11, 2012 accident report, which
states that, at the time of the accident, Medic 5's
" visual and audible warning devices [were] active as
per department order book." (Pl. Ex. 21).
9. USPS truck driver John Scott " did not see the
ambulance until impact," nor did he see its emergency
audible or visual signals. Scott also " didn't see
any cars in front" of him on P Street or " any cars
stopped on 11th Street." He therefore " did not
pull over [to yield right-of-way to Medic 5] because [he]
wasn't aware that the ambulance was there," and he
did not swerve or apply the USPS truck's brakes prior to
impact. (T-512:9-21, 513:9-17, 522:8-12, 523:25-524:7,
10. Travelling eastbound on P Street towards 11th Street (as
the USPS truck was just prior to the accident), the view of
southbound 11th Street traffic is obstructed to some extent
by buildings on the northwest side of 11th Street. These
buildings are set far enough back from the street that a
vehicle driving eastbound on P Street should be able to see
southbound 11th Street traffic prior to reaching the
intersection, however. (Pl. Ex. 19; T-524:10-525:12).
11. Scott had travelled eastbound on P Street several times
prior to the day of the accident, and he knew that the "
building on the corner would limit [his] view of the traffic
moving south on 11th Street." Despite this fact, Scott
did not turn his head to look up 11th Street before entering
the intersection because he was " relying on the green
light" and because, when he drives, his " vision is
to the point where [he] can incorporate what's around
[him]." (T-524:19-24, 526:13-527:20 (" If a bike or
a car is coming and they're going to run a light, I can
usually perceive that." )).
Whether The Accident Caused Plaintiff's Alleged
witnesses testified about Connor's injuries: (i)
Plaintiff's medical expert, Dr. Michael Batipps, a
neurologist; (ii) Defendant's medical expert, Dr. Richard
Conant, an orthopedic ...