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DEMARTINO v. UNITED STATES

March 7, 1983

ANNE DeMARTINO and MARIO DeMARTINO, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

 NEAHER, District Judge.

 This action was brought under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., to recover damages for personal injuries claimed to have been sustained by plaintiff Anne DeMartino *fn1" in an automobile accident involving a government employee. The action having been tried upon the facts without a jury, the facts and discussion which follow constitute the Court's findings of fact and conclusions of law. Rule 52(a), F.R.Civ.P.

 The parties do not dispute that there was contact between two vehicles at an intersection in the Borough of Queens at approximately 11 a.m. on November 30, 1977. Plaintiff was a passenger in one of them, a Cadillac sedan owned and operated by Rose Savarese, plaintiff's aunt. The other vehicle was a Plymouth sedan owned by the Federal Bureau of Investigation (FBI) and operated by Walter Scheuplein, a Special Agent of the FBI. Both vehicles were in the left westbound lane of Northern Boulevard and had stopped for a red light at the intersection of 150th Street. The Savarese vehicle was directly in front of the FBI vehicle. Traffic conditions were medium to heavy and it had rained on and off that day.

 The testimony of the respective drivers was basically in agreement as to the manner in which the two vehicles came into contact but not as to which moved first. According to Scheuplein the Savarese vehicle, which was the first car at the intersection, began to move forward. In reaction to that Scheuplein, who said he was about 10 to 20 feet behind, also began to move forward but had to stop within a few feet when the Savarese vehicle suddenly stopped. The vehicles collided, he testified, because he could not stop quickly enough. Tr. 248. He had no recollection as to whether the traffic light had changed from red to any other color. Tr. 263.

 Rose Savarese testified that she was still stopped for the red light when "the fellow behind me thought the light had changed and he started to roll and he just tapped me." Tr. 456. She got out of her car "to see if I had any damage . . . and didn't see any," and so informed Scheuplein when he requested that they pull over to the side and wait for a police officer he had called to the scene. Tr. 456-58. She saw only "a slight indentation in the bumper . . . about four inches" long and only "very slight" in depth. Tr. 458. *fn2" She testified further that at the time of the impact her car did not move, nor did her body or that of plaintiff, and they were not wearing seatbelts. Tr. 457. She made no claim for any injury to her person or the car.

 Joseph Cannon, the police officer who came to the scene, testified he had no independent recollection of the occurrence but identified a Police Accident Report, PX 1, which he said it was his standard practice to complete after speaking to both drivers and anyone else involved. His brief description of the accident tends to corroborate Scheuplein's testimony that the Savarese vehicle had already started moving forward when the collision occurred and was not stopped as Mrs. Savarese and plaintiff testified. Tr. 456, 65. Cannon's report states:

 
"Veh #[1] starting in traffic going west on Northern Blvd struck by Veh 2 also west. Veh #2 skidded on wet roadway." PX 1, emphasis supplied.

 Cannon's responses to coded questions in the report created further discrepancies vis-a-vis the testimony of plaintiff and Mrs. Savarese. These responses reflect that both had worn "lap belts" contrary to their denials at trial, Tr. 29, 457, and that both had "complaints of pain" in the "Back" but "RMA," i.e., refused medical attention. PX 1. At trial, Mrs. Savarese testified she told the police officer that she had not been hurt, and he then asked plaintiff, who replied that "her back was bothering her." Tr. 460. In her own direct testimony, plaintiff said that the officer asked only, "how I was feeling, if I wanted to go to the hospital, and that was it." Tr. 35. However, in response to a similar inquiry from Scheuplein, she told him "my back had bothered me and I had hit my head . . . on the windshield." Tr. 32.

 Plaintiff's further testimony does little to clear up the discrepancies noted. According to her, the Savarese vehicle was "pushed" into the intersection, Tr. 30, contrary to Mrs. Savarese's testimony that the FBI vehicle merely "tapped" her car, inflicting a bumper dent so minor as to warrant no claim for damage or repair, and that her car did not move as a result of the impact. Moreover, the FBI vehicle was not damaged at all. Tr. 254-55.

 Nonetheless, however slight the impact, if it was the proximate cause of injury to the plaintiff, or exacerbated a pre-existing injury or condition from which plaintiff suffered, the government would be liable if Agent Scheuplein was negligent in the operation of the FBI vehicle under existing road conditions and his negligence was the proximate cause of plaintiff's injuries.

 Section 1129 of the New York Motor Vehicle and Traffic Law, which is applicable in the City of New York, *fn3" provides that

 
"(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."

 The effect of the statute is to require that a motorist drive his car at a sufficient distance to the rear of the car ahead so as to be able to stop in the clear space between the cars in case the preceding automobile is stopped with due care. Thus, whether the Savarese vehicle was stopped or had started to move forward, it was incumbent upon Agent Scheuplein to control his vehicle so as to avoid a collision with the vehicle ahead. The violation of a statute enacted to secure the safety of persons using a public highway is at least evidence of negligence. Basso v. ...


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