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GOLDSTEIN v. UNITED STATES

June 22, 1998

FRANCINE GOLDSTEIN and ALLAN GOLDSTEIN, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: SEYBERT

MEMORANDUM AND ORDER

 SEYBERT, District Judge:

 This is an action brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), to recover damages for personal injuries suffered by the plaintiff, Francine Goldstein, in a vehicular accident which occurred on October 1, 1994. *fn1" This decision follows a bench trial conducted by this Court on October 27, 1997 through October 31, 1997, and after receipt of numerous post-trial submissions on the issue of damages. Upon the evidence presented and the arguments submitted, the Court renders a verdict in favor of the plaintiffs based upon the findings of fact and the conclusions of law stated below, *fn2" as required by Fed. R. Civ. P. 52(a).

 I. FINDINGS OF FACT

 A. Liability

 1. On October 1, 1994, at approximately 1:00 p.m., Mrs. Goldstein was sitting in the right rear passenger seat of a 1985 Buick Le Sabre operated by Richard Esopa. The vehicle was also occupied by Karen Fitz in the front passenger seat. (Tr. at 24-26). *fn3"

 2. Ms. Fitz and Mr. Esopa were friends of Mrs. Goldstein and they were all on their way to attend an evening wedding in Tarrytown, New York, when the accident occurred. (Tr. at 26, 76-77).

 3. Mr. Esopa's Buick was evidently in excellent condition prior to the accident. (Tr. at 25, 77).

 4. Immediately prior to the accident, Mr. Esopa was proceeding westbound in the left lane on the Long Island Expressway ("Expressway"), in the vicinity of Old Westbury, New York. The Expressway has three lanes in each direction separated by a cement median barrier. (Tr. at 27-29, 225-31; Pls.' Ex. 3-A, 3-B and 3-C).

 5. It was a rainy Saturday afternoon, traffic was moderate and the roadway was wet, but there was no flooding or heavy fog. (Tr. at 27, 29, 77-79, 227-28, 358, 373).

 6. The defendant's vehicles included three five ton United States Army tractor-trailer trucks. Specifically the trucks are denominated "fifth wheel" Model 931-A-2 type, with attached trailers which were carrying laundry equipment. These vehicles were traveling parallel to, and about the same rate of speed as, the Esopa vehicle. (Tr. at 79-82, 93-99, 360).

 7. The Army trucks were returning to Fort Totten, Queens, and were traveling westbound in the far right lane in the following order: (1) a truck operated by Specialist Perez (the "Perez truck") with assistant driver PSC Ramos seated in the front passenger seat; (2) a truck operated by Specialist Pedican (the "Pedican truck") with Private Inglis seated in the middle between Pedican and assistant driver Specialist Bullock in the front seat; and (3) a truck operated by Sergeant Rivera (the "Rivera truck") with Specialist Rigel seated in the front seat. (Tr. at 79, 289-91, 413, 414).

 8. The Pedican truck was approximately two to three car lengths in front of the Rivera truck and both trucks were traveling approximately 40 m.p.h. (Tr. at 60-62, 79-81, 361; Rigel Dep. at 64).

 9. When Pedican observed a privately owned vehicle ("POV") on the right shoulder of the roadway, Perez's vehicle was not in view. (Tr. at 325).

 10. Pedican realized that the privately owned vehicle, which resembled a Blazer S-10, was trying to access the right lane and merge into Pedican's lane of traffic. Pedican saw at least two civilian vehicles directly in front of his truck refuse to slow down and allow the POV entry onto the Expressway. (Tr. at 291-92, 328-36).

 11. Although the distance between the Pedican truck and the POV is uncertain and open to debate, Pedican had sufficient time to honk his horn once and flash his lights twice before braking. The Pedican truck never struck the POV. (Tr. at 328-31, 338-41).

 12. The POV accelerated onto the Expressway in front of Pedican's truck, requiring Pedican to slam on his brakes, causing the trailer brake to lock and the trailer to skid. The tractor skidded to the right towards the shoulder and then turned 180 degrees to the left and skidded across three lanes of traffic while the trailer jackknifed and eventually came to rest on the shoulder on the right side of the Expressway. (Tr. at 292-94, 348, 441).

 13. Pedican's truck skidded because he slammed on the brakes instead of decelerating by taking his foot off of the gas pedal. He may have also confused the operator of the POV by flashing his lights, leading the operator of the POV to infer that Pedican was allowing him to enter onto the Expressway. (Tr. at 291-94, 348-49, 363, 441).

 14. Inexplicably, Pedican claims for the first time at trial that he may have hit a limousine during this accident. (Tr. 293, 299-304, 348). Neither the limousine nor the POV were ever located and the respective operators of these vehicles were never identified by the Government. The Court concludes that Pedican's statement regarding another possible collision is troubling in assessing his credibility.

 15. Rivera was driving approximately 40 miles per hour and was less than one to two car lengths behind the Pedican truck immediately prior to the POV entering the traffic lane. In light of the existing traffic and weather conditions, Rivera was proceeding too fast and was positioned too close to the Pedican truck. When Rivera observed the POV cut in front of the Pedican truck, Rivera took his foot off the gas pedal, but to his dismay and surprise, he observed that Pedican's truck had turned around and was coming towards him. Rivera pumped the brake but his truck began to slide and he then applied the "Jake brake." *fn4" Once the Jake brake was applied the trailer "really whipped around" and Rivera's truck traveled across three lanes of traffic striking the median divider on the right front side of the truck. (Tr. at 363-65). It also struck or caused Esopa's vehicle to wind up on the back of, or under, the trailer of Rivera's truck. (Tr. at 239; Rigel Dep. 80-82).

 16. The Pedican truck caused the Rivera truck and or its trailer to strike or collide into the rear quarter panel of the Esopa vehicle and the Pedican truck also struck the Esopa vehicle. (Tr. at 32-33, 81-113, 128-30, 440-41). It is more likely than not that Rivera's truck slammed into the median divider before its trailer struck the Esopa vehicle. (Tr. at 365). Esopa's vehicle sustained damage on the driver and passenger sides. Despite Sergeant Rivera's denial, the Rivera truck or its trailer struck Esopa's vehicle. (Tr. at 375).

 17. The Court discredits the testimony provided by Andrew Rigel, an assistant driver riding in Rivera's truck, who testified that neither the Pedican nor the Rivera truck had any physical contact with any other vehicles, and that the Pedican vehicle did not jackknife but just went off the side of the road. (Rigel Deposition at 67-69).

 18. Officer Conlon testified that there was no damage to the Rivera vehicle. The lack of damage to Rivera's five ton truck and or its trailer is not material to the issue of whether it struck a mid-size car. Officer Conlon was not an eye witness to the accident, and it cannot be gainsaid that the Esopa vehicle was nearly completely crushed. (Tr. at 236-41).

 19. The Esopa vehicle sustained more that one impact, the combined force of which caused both the roof and hood to buckle and form peaks. The Esopa vehicle was spun around and partially crushed by the collisions. The damage was most extensive on the right rear door and quarter panel, in the area adjacent to where plaintiff Francine Goldstein was seated. (Tr. at 81-120, 128-30; Pls.' Ex. 23 numbers 1 through 14, Ex. 23-2, 23-3, 23-4, 23-6, 23-7.)

 20. Esopa never lost control of his vehicle, however, both defendants' Pedican and Rivera lost control over their respective vehicles. (Tr. at 30-34, 49, 82-83, 88, 103, 105, 113, 130, 197, 239-40, 255, 306-08, 343-46, 364, 369-76, 396-97, 422, 427-28; Rigel Dep. at 51-52).

 21. Despite Pedican's claims to the contrary, he was certainly not in complete control of his tractor-trailer. (Tr. at 306-08, 342-44, 346).

 22. Pedican and the other soldiers were given instructions as to the speed and distance they should maintain between their vehicles and the vehicle directly in front of them. They were specifically directed to maintain a 100 meter gap and to drive no faster than 40 miles per hour. These instructions were pointless, however, because the operators did not have any concept of how long a meter was. (Tr. at 314-17, 380-87; Rigel Dep. at 24-25, 40-42).

 23. After the vehicles finally came to rest, Rivera's truck and Esopa's car were facing eastbound in the left lane of the westbound traffic. Esopa's vehicle was up against the left rear side of Rivera's trailer and on the frame of the rear wheels. (Tr. at 233-34, 345, 366, 444).

 24. Pedican's truck was off onto the right shoulder or embankment of the Expressway in a grassy, wooded area. (Tr. at 294-95, 443).

 25. Esopa and Fitz were removed through the passenger side door, but Francine Goldstein could not be immediately removed. Emergency personnel had to utilize the "Jaws of Life" to remove the passenger door and the front seat to extricate the plaintiff from the rear passenger seat where she was trapped. (Tr. at 132-35).

 26. Mrs. Goldstein was taken by ambulance to North Shore University Hospital where she was admitted and treated for multiple severe fractures to the right side of her body. (Tr. 135-44).

 27. The negligence of defendants Pedican and Rivera caused the accident. Defendant Pedican failed to observe the rules of the road and to maintain a safe speed. Rivera was traveling too close to the Pedican truck. Both Pedican and Rivera lost control of their respective vehicles in a non-emergency situation. (Tr. 31-35, 82-83, 306-08, 336-47).

 B. Damages

 28. Francine Goldstein was conscious and suffering from excruciatingly sharp pain immediately following the accident. She was frightened after being trapped for what felt to her to be forever. (Tr. at 132-35).

 29. After being taken out of the car, she was placed in a cervical collar and taken by ambulance to the North Shore University Hospital emergency room where she was admitted for surgery. Mrs. Goldstein remained at North Shore University Hospital until October 12, 1994, a period of 12 days. (Tr. at 135-40).

 30. The pain accompanying the emergency room treatment was exacerbated because Mrs. Goldstein was frightened, emotionally stressed and embarrassed as the hospital staff proceeded to cut away her clothing and her sense of dignity. (Tr. at 136-38).

 31. Dr. Baruch Toledano was the attending orthopedic surgeon on call and he responded when Mrs. Goldstein arrived at the emergency room. (Tr. at 456-61).

 32. Dr. Toledano was plaintiff's treating orthopedic surgeon. He is board certified in orthopedic surgery and a clinical instructor in orthopedic surgery at Cornell Medical College and New York University Medical School. Dr. Toledano is affiliated with the Parkway Hospital, the Nassau County Medical Center and North Shore University Hospital's locations in Manhasset and in Glen Cove. He ...


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