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MITTIGA v. UNITED STATES

November 23, 1996

JOAN MITTIGA and ROY MITTIGA, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: 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 October 9, 1996. Plaintiff's cause of action stems from the October 7, 1992 motor vehicle/pedestrian accident that occurred in Massena, New York, between an automobile owned by the United States Coast Guard and operated by Petty Officer Christopher Stevenson, an employee of same, and plaintiff Joan Mittiga, a pedestrian crossing the street. The Court now makes the following findings of fact and conclusions of law as a result of the evidence at trial. For purposes of clarity, the Court has set forth separate findings of fact and conclusions of law with respect to liability (section II) and damages (section III).

 II. Liability

 A. Findings of Fact:

 1). October 7, 1992, was a clear and sunny Autumn day in Massena, New York, where Petty Officer Christopher Stevenson was a member of the United States Coast Guard, assigned to the Marine Safety Detachment, Foreign Vessel Inspection at the St. Lawrence Seaway Development Corporation. He had been assigned there for just over a year at time of the accident. At that time, and at the office where Mr. Stevenson was employed, the Coast Guard owned a 1991 Dodge Caravan. Mr. Stevenson had used the vehicle before. At the time of the accident, he was using the vehicle as part of his duties and with the permission of the United States.

 2). Main Street in Massena is a two-lane, north-south public street with one lane designated for travel in each direction. There is room for cars to parallel park on either side of the street, although none were so parked in the vicinity of the accident on the day in question. To the south of the site of the accident, Main Street is intersected by New York State Route 37, a four-lane highway running east-west.

 3). At approximately 1:00 p.m., Mr. Stevenson left his office at the St. Lawrence Seaway Development Corporation to pick up the mail at the post office on Main Street in Massena. His trip eventually led him onto Route 37 traveling East. Since the Post Office was on Main Street north of Route 37, he would be making a left turn onto Main.

 4). In the meantime, plaintiff Joan Mittiga was at work at the First National Bank of Northern New York ("the bank"), located at 264 Main Street on the west side of the street. Mrs. Mittiga is a 68 year-old female, who at the time of the accident was employed as a new accounts clerk at the bank. She had plans to meet some friends for lunch at Pizza Hut, located on the east side of Main Street, on the southeast corner of Bowers Street and Main Street. Bowers Street intersects and ends at Main from the east; the intersection is approximately four hundred feet south of the bank; the Route 37 intersection is farther south.

 5). Mrs. Mittiga punched out for lunch at 1:10 p.m. She walked out the front door of the bank, which faces Main Street, and walked down the front walk of the bank, heading east toward the western curb of Main Street.

 6). While on the front walk of the bank, which runs perpendicular to Main Street, Mrs. Mittiga did not look to her right or left. When she reached the sidewalk in front of the bank, which runs parallel to Main Street, she did not look to her right or left.

 7). When she reached the strip of grass between the parallel sidewalk and the street, Mrs. Mittiga looked to her right and left to check for traffic on Main Street. She recalled seeing cars approaching from the north, approximately one and one-half blocks away. Looking to the south, she could see all the way to the Route 37 intersection, and recalls seeing no northbound traffic. She then proceeded to cross the street.

 8). There was no crosswalk present where Mrs. Mittiga crossed Main Street. The nearest crosswalk was to the south, at the traffic light where Main Street intersected with Route 37.

 9). At some point in this time frame, Mr. Stevenson was making his left turn from Route 37 onto Main Street. He testified that he had driven on Main Street "countless times," and was familiar with the route. As he turned left, he could see all the way up Main Street to the area of the bank.

 10). Mr. Stevenson testified that he did not see any vehicles in front of him as he turned onto Main Street, nor any southbound traffic. He did not see any pedestrians crossing the street as he made the turn. Mr. Stevenson testified, and the Court finds credible, that his speed was consistently 20-25 m.p.h. at all relevant times.

 11). As he traveled north on Main Street, Mr. Stevenson glanced briefly to the right to look at the house of an acquaintance of his. The house in question, located on the east side of Main Street, was across the street from the bank and slightly south. Mr. Stevenson testified that he was checking to see if his friend's car was in the driveway, with the intention of calling her later if she was home. Mr. Stevenson characterized the glance as spontaneous and unpremeditated. The Court finds this testimony credible.

 12). At the moment Mr. Stevenson was looking back from his glance to the right, he heard a "thud." The right front corner of his vehicle struck Mrs. Mittiga as she was crossing Main Street. The weight of the credible evidence shows that Mrs. Mittiga was approximately 5-8 feet from the east curb of Main Street at the time she was struck.

 13). Given Mr. Stevenson's testimony, which the Court finds credible, the Court adopts as a finding of fact that Mr. Stevenson's attention was momentarily diverted from the road in front of him just prior to the point that the van struck Mrs. Mittiga. Thus, Mr. Stevenson never saw Mrs. Mittiga before the van struck her. Mr. Stevenson essentially testified to the same, and witnesses William Wilson and Beatrice Hampton both testified that Mr. Stevenson did not slow down or take evasive action before the van struck Mrs. Mittiga. Nor did Mr. Stevenson apply the brakes or sound his horn.


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