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June 20, 1994


The opinion of the court was delivered by: HOWARD G. MUNSON


 This personal injury action accrued on July 30, 1989 when defendant and third-party plaintiff Dennis Bellefeuille drove through a temporary United States Border Patrol checkpoint located in North Hudson, New York. As he passed through the checkpoint, defendant Bellefeuille's automobile struck plaintiff Felix Sanchez, a Border Patrol Agent. Plaintiff and his wife sued defendant on a theory of negligence, and defendant filed a third-party complaint, claiming that the United States Border Patrol ("the Border Patrol") was negligent in establishing and maintaining the temporary checkpoint. Currently before the court is a motion by the Border Patrol for summary judgment dismissing the third-party complaint in its entirety pursuant to Fed. R. Civ. P. 56(c).


 On July 30, 1989 defendant Dennis Bellefeuille and his girlfriend, Johanne L'Allier, were driving south through New York State on I-87 en route from Quebec, Canada to Wildwood, New Jersey. Bellefeuille set the cruise control on his 1989 Chevy Cavalier at 100 km (62 m.p.h.). At around 2:00 a.m., while driving through the town of North Hudson, Bellefeuille came upon flashing lights on the side of the highway. Because he only saw one sign, a flashing yellow arrow indicating that the left lane was closed ahead, defendant believed he was approaching an inactive construction site. Since he was already in the right lane, and since traffic was light, defendant did not disengage his cruise control. Defendant maintained his speed until he realized that he would be forced to enter a rest area adjacent to the highway. Unable to stop, and maneuvering to avoid several cars that were stopped at the checkpoint, defendant first struck a sign and then struck plaintiff Felix Sanchez as he walked across the road. As a result of the incident, plaintiff suffered serious injuries.

 The parties dispute the actual number and design of the warning signs on the highway at the time of the accident. Defendant contends that there was only one flashing yellow arrow and a series of traffic cones on the left-hand side of the road. Third-Party defendant Border Patrol counters that there were a number of signs, beginning approximately one and one quarter miles in advance of the checkpoint, and continuing into the checkpoint itself. Among these signs were two sets of "Stop Ahead" signs (one on each side of the road) in excess of one half mile from the checkpoint. The Border Patrol asserts that each sign was located on a stand and had two blinking lights below it.

 According to the record, several explanations have been offered as to why defendant was unable to stop his car. Defendant initially claimed in a statement made to police that he thought he applied his brakes, but he "may have been stepping on the gas instead of the brake because [his] car went faster and faster." Accident Report, Exhibit ("Exh.") 1 attached to Document ("Doc.") 9, at 2. Defendant later stated that the accident did not result from any mechanical or other defect in his vehicle. Response to Third-Party Defendant's Interrogatories, Exh. 4 attached to Doc. 9. Ms. L'Allier's statement to the police at the time of the incident contradicts defendant's original explanation; she claimed that defendant attempted to apply the brakes but his cruise control would not disengage. In opposition to the present summary judgment motion, defendant has adopted L'Allier's version of events, and now claims that his cruise control malfunctioned.

 Plaintiffs filed the initial complaint in this action on October 4, 1990. Bellefeuille filed the third party complaint against the Border Patrol on October 9, 1993, pursuant to the Federal Tort Claims Act ("the Act" or "FTCA"), 28 U.S.C. §§ 2671-2680. This latter complaint alleges negligence by the Border Patrol in establishing and maintaining the temporary traffic checkpoint where plaintiff Felix Sanchez was injured, and seeks indemnification and/or contribution from the Border Patrol in the event plaintiffs obtain judgment against defendant Bellefeuille.

 The Border Patrol moves for summary judgment based upon two arguments. First, the Border Patrol argues that the court lacks jurisdiction because any act or omission on its part falls within the performance of a discretionary function, which is excepted from suit under the FTCA. Second, the Border Patrol asserts that defendant can not establish that the alleged negligence of the government was a proximate cause of the accident.

 In response to the Border Patrol's motion, defendant offers the affidavit of Jack Humphreys, a civil engineer who specializes in traffic engineering. Humphreys claims that the checkpoint was not in conformity with the specifications of the Immigration and Naturalization Service Border Patrol Handbook ("the Handbook"), which sets forth the requirements for the establishment and maintenance of temporary traffic checkpoints by the Border Patrol. Humphreys also asserts that the checkpoint layout was generally unsafe. In particular, Humphreys points out that the Handbook requires that approaching motorists have a half-mile line of sight to the stopping point. In this case, Humphreys claims, motorists had a direct line of sight only when they were 1200 feet from the stopping point. Humphreys also questions the use of flashing lights instead of steady burning lights, which Humphreys claims has the effect of distracting motorists, as well as the use of cones at night, and the placement of the lights. *fn1"

 A. Summary Judgment Standards

 Under Federal Rule of Civil Procedure 56(c) summary judgment shall enter if, when viewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Eastman Kodak Co. v. Image Technical Servs., Inc., U.S. , , 112 S. Ct. 2072, 2077 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). Where the moving party does not bear the ultimate burden of proof on an issue, that party satisfies its summary judgment burden by pointing to the absence of evidence to support an essential element of the non moving party's claim. Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). Where the movant does shoulder the burden of proof, it must establish that there is no genuine issue of material fact to be decided regarding any element of that party's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In either case, if the movant satisfies its initial summary judgment burden, then the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists. Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). To survive the motion for summary judgment the nonmovant must do more than present evidence that is merely colorable, conclusory, or speculative, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and furthermore must show more than "some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In other words, the nonmovant must demonstrate that there are issues of fact that must be decided by a factfinder, because "they may reasonably be decided in favor of either party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).

 With these rules in mind, the court turns to the specific arguments raised on the Border Patrol's motion for summary judgment.

 B. The Discretionary Function Exception

 The FTCA is a limited waiver of the sovereign immunity of the United States. Among other things, the Act generally authorizes suits against the ...

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