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Connor v. United States

United States District Court, D. Columbia

November 6, 2015

KEVIN CONNOR, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant

          For Kevin Connor, Plaintiff: Kelly J. Fisher, LEAD ATTORNEY, William P. Lightfoot, KOONZ, MCKENNEY, JOHNSON, DEPAOLIS & LIGHTFOOT, LLP, Washington, DC USA.

         For 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.

Page 164

         MEMORANDUM OPINION SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW

         TANYA S. CHUTKAN, United States District Judge.

         Plaintiff 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.

         The 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.

         Based 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.

         Specifically, 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.

         I. FINDINGS OF FACT

         a. Whether Defendant's Negligence Caused The Accident

         Four 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.

Page 165

          The 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; T-523:17-22, 546:6-19).
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; T-33:9-34:10, 45:20-46:24).[1]

Page 166

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, 525:13-16).
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." )).

         b. Whether The Accident Caused Plaintiff's Alleged Injuries

         Four 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 ...


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