the initial stitching of plaintiff's chin laceration. Brender's surgery was successful in repairing the nerve and removing the droop from plaintiff's lip although Brender's deposition indicates that plaintiff retains some palsy in his lip. Dr. Brender performed a second, dermabrasive procedure to minimize the scarring with plaintiff under general anesthesia. Dr. Brender also maintains an ongoing course of therapy in an attempt to minimize plaintiff's scarring. The therapy consists of injections of kenalog directly into the suture line on plaintiff's chin. Plaintiff has endured this treatment three times to date and at least one more is scheduled. Both plaintiff's mother and Dr. Brender's testimony indicates that this treatment is very painful. Finally, Dr. Brender's deposition indicates his belief that while plaintiff's scarring and palsy will continue to improve somewhat, they will never be entirely removed.
12). Plaintiff also currently wears braces and has received orthodontic treatment from Dr. David J. Angus, D.M.D., and continues to receive monthly orthodontic treatment from Dr. William J. Brennan. Plaintiff's mother testified that to her knowledge plaintiff had no problems with his teeth prior to the accident. Dr. Angus in his videotaped deposition gave the opinion that plaintiff was functioning fine without orthodontics prior to the accident in question. The Court has considered the government's objection to the hypothetical which preceded Dr. Angus' answer in this regard. The Court finds after review of the hypothetical and Angus' answer, however, that Angus did not rely on the proffered hypothetical but rather gave a well reasoned answer based on facts known to him, including that plaintiff had never been referred for orthodontics prior to the accident and his perception of the development and fit of plaintiff's posterior teeth, and assumptions based on those facts.
Dr. Angus in his deposition also opined, and the Court finds as a fact, that the orthodontic work plaintiff has received became a necessity in order to establish proper restorations to plaintiff's teeth as a result of the injuries plaintiff received in the collision. The Court is mindful of the opinion of Dr. John Essephian, which the government offers by way of a videotaped deposition, that the required orthodonty was not the result of the accident. The Court notes however that Essephian's answer was predicated on an assumed lack of mobility in plaintiff's teeth: Essephian indicated that he might give a different opinion if presented with evidence of mobility. In light of plaintiff's mother's testimony and Dr. Brennan's deposition testimony that plaintiff's teeth continue to display mobility the Court finds the evidence better supports plaintiff's view of the accident as an initiating cause of the need for orthodonty and therefore adopts it as a finding of fact.
13). Taking together the stipulations between the parties, the exhibits offered at trial and the deposition testimony of Drs. Brennan, Angus and Brender, the Court finds that the costs of plaintiff's medical care, including a reasonable prediction of future care which plaintiff can reasonably expect to require, are found to amount to $ 15,880.77.
III. Conclusions of Law:
1). The Court concludes that the findings of fact made above, particularly those facts found in § 9 supra, establish that the United States, through its employee Kenneth Olcott, breached to plaintiff its duty to operate a motor vehicle with reasonable care under New York statutory and common law. See Guzzardi v. Grotas, 98 A.D.2d 761, 469 N.Y.S.2d 475 (2d Dep't 1983); New York Vehicle and Traffic Law § 1160, § 1151-a; see also § 1163(a) ("no person shall turn a vehicle to enter a private road or driveway . . . unless and until such movement can be made with reasonable safety.")
2). The Court further concludes that the findings of fact made above, particularly those facts found in § 8 supra, establish that plaintiff also failed to act with all reasonable care and prudence dictated by the conditions at the accident scene. See New York Vehicle and Traffic Law § 1234(d); Ortiz v. Kinoshita & Co., 30 A.D.2d 334, 292 N.Y.S.2d 48 (1st Dept. 1968).
3). The Court further concludes that defendant United States' negligence was 80% responsible for proximately causing the collision in question. Therefore, the United States is liable for 80% of the total of damages sustained by plaintiff as a result of the collision. It follows that the proportion of plaintiff's culpable conduct renders him 20% liable for proximately causing the collision and the damages to him which flowed therefrom. Therefore, the damages otherwise recoverable by plaintiff must be reduced by 20%. See N.Y. Civ. Prac. L. & R. S 1411 (McKinney's 1994); Arbegast v. Board of Education, 65 N.Y.2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365 (1985).
4). The Court finds that in light of all the evidence, plaintiff has been damaged in the amount of $ 100,000, exclusive of the costs of his medical care. The Court's calculation constitutes a fair and just compensation for all the injuries, pain and suffering plaintiff has endured, which are the natural and proximate consequences of the collision described, as found above in findings of fact 10, 11 and 12. See 26 NY Jur. 2d, Damages §§ 56-66 (1984 & 1994 Supp.). The Court has also taken into consideration the irreversible palsy now present in plaintiff's lip, as well as the permanent facial scar that this young man now bears. See Irizarry v. Cardona, 207 Misc. 536, 138 N.Y.S.2d 923 (Cty. Ct. Bronx County Ct. 1954); Spoth v. Clark, 148 A.D.2d 953, 539 N.Y.S.2d 192 (4th Dep't 1989). Taken together with the medical costs as found in finding of fact 13, supra, then, the total damages plaintiff sustained as a result of this collision are $ 115,880.77.
5). Reducing those damages by plaintiff's negligence which contributed 20% to proximately causing this accident, the Court hereby concludes that plaintiff should recover from defendant United States a total of $ 92,704.62 for damages suffered as a result of the collision.
Based on the foregoing findings of fact and conclusions of law the Court finds that judgment should be entered for plaintiff Daniel W. Gibbs in the amount of $ 92,704.62.
IT IS SO ORDERED
Binghamton, New York
May 15, 1995
Thomas J. McAvoy
Chief U.S. District Judge
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