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May 15, 1995

DANIEL W. GIBBS, an Infant, by WILLIAM GIBBS and PATRICIA GIBBS, His Parents and Natural Guardians, Plaintiffs,

Thomas J. McAvoy, Chief U.S. District Judge

The opinion of the court was delivered by: THOMAS J. MCAVOY


 I. Background:

 This action seeking damages for personal injuries under the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., came before the Court for a bench trial on April 3, 1995. Plaintiff's cause of action stems from the October 27, 1990 collision which occurred at Ticonderoga, New York, between an automobile owned by the United States Postal Service and operated by Ken Olcott, an employee of same, and plaintiff Daniel W. Gibbs who was riding his bicycle. The Court now makes the following findings of fact and conclusions of law as a result of the evidence at trial.

 II. Findings of Fact:

 1). On October 27, 1990, Ken Olcott was an employee of the United States Post Office and was stationed at the United States Post Office in Ticonderoga, New York. Mr. Olcott was driving a postal vehicle and delivering mail in Ticonderoga on that day.

 2). Montcalm street in Ticonderoga is a two lane, east-west public street with one lane designated for travel in each direction. At approximately 11:00 a.m. Mr. Olcott was parked facing west on the north side of Montcalm street between Lake George Avenue to the west and Champlain Avenue to east.

 3). On the south side of Montcalm, directly opposite Olcott's parking spot, was an alley between two buildings. The alley intersected the south side of Montcalm slightly west of its center point between Lake George and Champlain Avenues. The alley afforded passage from Montcalm to Algonkin Street, the next street south.

 4). At this time a large truck was parked on the south side of Montcalm just west of its junction with the alley, in an area designated for vehicle parking between the eastbound traffic lane of Montcalm and the sidewalk. The effect of the truck's positioning was such that the driver of a vehicle entering the alley could not see pedestrians on the southern sidewalk of Montcalm as they approached the alley from west to east. Nor could pedestrians travelling east on Montcalm toward the alley see any vehicle entering the alley from Montcalm until that vehicle had crossed the sidewalk in front of the parked truck.

 5). Upon resuming his vehicle sometime before noon, Olcott made a left hand turn directly across both lanes of Montcalm seeking to pass through the alley from Montcalm to Algonkin to continue his mail route.

 6). As Olcott entered the alley plaintiff Daniel W. Gibbs, then ten years old, was travelling on his bicycle on the southern sidewalk of Montcalm approaching the alley from east to west. By his own testimony Gibbs was "coasting," not pedaling his bicycle, intending to cross over the alley's opening and continue west. Plaintiff could not estimate how fast he was travelling as he approached the alley.

 7). Olcott's vehicle which passed in front of the parked truck as it crossed the sidewalk to enter the alley suddenly appeared in front of plaintiff as he began to cross the alley. Plaintiff's bicycle collided with the right rear of Olcott's vehicle.

 8). Plaintiff's testimony established that he tried to look around the truck but could not and that he never saw Olcott's vehicle prior to its appearance in front of him. Plaintiff also testified that he never considered getting off and walking the bicycle. Upon cross-examination plaintiff testified that as he approached the front of the truck and the alley opening he looked neither left nor right although he had seen vehicles in the alley before. Plaintiff further testified that he had no time to brake or change direction when the postal vehicle appeared in front of him.

 9). Olcott's testimony established that as he entered the alley his view of the sidewalk was blocked by the truck so that he could not see approaching pedestrians. Mr. Olcott allowed that by looking under the truck he could have seen pedestrians approaching the alley on the far side of the truck but he did not do so. Mr. Olcott also testified that from the point when he begun the left hand turn until his entry into the alley he never applied the brakes or removed his foot from the accelerator, but that his vehicle at all times was travelling slowly. He approximated his speed at no greater than three miles per hour. Mr. Olcott never looked to the right or sounded his horn as he crossed over ...

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