The opinion of the court was delivered by: Townes, United States District Judge
Plaintiff, Clara Plaza, brings this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), and 2671-2680, seeking to recover damages for injuries she sustained on December 10, 1998, when she was struck by a car while crossing Worth Street between Broadway and Church Streets. The case was tried before the Court without a jury. For the reasons stated below, this Court concludes that plaintiff proved that she sustained a "serious injury," but failed to prove defendant's negligence by a preponderance of the credible evidence. This Court shall, therefore, enter judgment in favor of defendant and against plaintiff.
On Thursday, December 10, 1998, plaintiff was employed cleaning offices in downtown Manhattan (12-13).*fn1 In the course of her work, she moved from one building to another in accordance with a schedule dictating when she was to arrive at each office. On the date of the accident, she began work at 6 p.m. at a "car company" about one block from the accident scene, but was scheduled to start cleaning the Federal Defenders' offices at Broadway and Worth Street at 6:30 p.m. (14, 35).
It was already around 6:30 p.m. on December 10, 1998, when plaintiff and a colleague, Carlos Garcia, started east on Worth Street in the direction of the Federal Defenders' offices. Somewhere east of Church Street but west of Broadway, plaintiff decided to cross Worth Street and told her colleague, "Let's cross" (36). The exact location at which she attempted to cross is disputed; plaintiff maintains that it was only 70 feet from Broadway (15) while defendant asserts that it was much closer to the middle of the 500-foot-long block. However, both parties agree that plaintiff attempted to cross Worth Street somewhere mid-block, and not in the vicinity of the crosswalk located at the corner of Worth Street and Broadway.
At the point where plaintiff attempted to cross it, Worth Street is a two-way street with a double yellow line separating the westbound and eastbound lanes. Although both of those lanes are 19 feet wide, as measured from the curb to the midline, Worth Street accommodates only a single lane of traffic in each direction because there are cars parallel-parked along the sides of the road. In order to cross Worth Street, plaintiff first had to walk between two of these parked vehicles before reaching the westbound lane.
Shortly before she crossed the street, plaintiff looked to the east and noticed that westbound traffic on Worth Street was stopped at a red light at Broadway (17). Plaintiff saw defendant's car, which was first in line at the light, stopped at the intersection (18). Plaintiff also looked to the west to check on eastbound traffic before walking between the parked vehicles and into the westbound lane (37, 42-44).
Plaintiff gave conflicting testimony as to which direction she looked just before she entered the westbound lane of traffic, and what she saw when she looked. On direct examination, plaintiff testified that she looked to determine whether any cars were coming before she started to cross the street and saw a car approaching slowly. That car then "came up to [her] very quickly" and struck her (18). In response to the Court's questioning following cross examination, plaintiff first testified that she looked right immediately before trying to cross the street (42). Thereafter, she testified that she had looked left just before entering the street, but "saw nothing . . . coming" (43). When she attempted to cross, however, a car "came on top of [her]" so quickly that plaintiff did not "know where it came from" (43).
Plaintiff also testified that once she stepped into the westbound lane, she could not have avoided the accident because the oncoming car "was moving so quickly that [she] had no time to do anything" (19). Nonetheless, she claimed to have noticed that defendant's headlights were off and that no one sounded the horn (19). Plaintiff, who described the impact as "very strong," suffered a broken rib and various injuries to her right knee as a result of the collision (20). She cried out in pain (20), and almost lost consciousness (37-38). Her colleague, who did not testify at trial, did not follow plaintiff into the street and thereby avoided injury (19-20, 36).
The accident was also witnessed by a limousine driver, Earl Laidlow, who was driving eastbound on Worth Street at the time. The Court fully credits the testimony of Mr. Laidlow, except with respect to his recollections concerning the time of day and the use of headlights. Mr. Laidlow recalled that the accident took place on a "clear evening" between 5 and 7 p.m. (51), yet did not remember whether the accident occurred after dark (51-52). As a result, he did not know whether the streetlights were on (52), and believed that he would have been able to "see very far" -- between one and three hundred feet -- without artificial illumination (53).*fn2 He also claimed that neither his limousine nor the car involved in the accident had its headlights illuminated (52, 54), even though the headlights in his vehicle turned themselves on "automatically" (52).
Notwithstanding Mr. Laidlow's confusion concerning the lighting, this Court credits his testimony that he was able to see the accident, which took place on a well-lit street less than fifteen feet from him (56). Mr. Laidlow was driving from west to east and was "about the middle of the block" between Church Street and Broadway when he observed a "young lady zipping out from between two [parked] cars" and into the westbound lane of traffic (52). Asked to define the term, "zipping," Mr. Laidlow stated that the woman was "walking briskly" (53), as if she were "trying to get somewhere in a hurry" (69). Mr. Laidlow, who first saw the woman as she passed between the cars (55) and watched her continuously until the accident occurred (65), testified unequivocally that the woman did not look in either direction before stepping into the westbound lane (69-71).
As the woman stepped into the lane, Mr. Laidlow saw a vehicle -- which Mr. Laidlow recalled only as a small, light-colored car (59-60) -- proceeding eastward at a steady pace (83). Mr. Laidlow could not estimate the exact distance between the car and the woman at the instant she entered the lane, but testified that the car was "right close" to her (78). The car swerved towards the eastbound lane in an effort to avoid her (83). However, according to Mr. Laidlow, the "westbound travel lane" on Worth Street was only about ten feet wide (79), too narrow to permit the driver of the oncoming car to maneuver around the woman (83). Nonetheless, the car did manage to turn to its left somewhat before impact; Mr. Laidlow estimated that if the car had not swerved, "the middle of the car would have hit" her (83).
Instead, the right front fender or bumper struck the woman (61, 83). Mr. Laidlow, who was just about to pass the car when it struck the woman, had an unobstructed view of the accident through his open driver's side window (58, 61-62, 84). According to Mr. Laidlow, it was not a "big impact," but was sufficient to knock the woman to the ground (62). Mr. Laidlow did not estimate how quickly the car was moving at the time of the accident, but implied that by the time he passed the scene, the car had already stopped and the driver -- an African-American man -- was about to open the driver's side door (60).
Mr. Laidlow continued driving until he reached the corner of Broadway, where he stopped to inform two transit inspectors or officers of the accident and to ask them to call for an ambulance and for the police (59, 63). Mr. Laidlow claimed that he did not call for assistance himself because he thought that the authorities would respond faster if summoned by the transit personnel (63). However, Mr. Laidlow also did not want to wait for the emergency personnel to arrive. Instead, he handed his business card to the transit personnel, then left the scene (76).
At trial, Mr. Laidlow estimated that the impact occurred only one or two seconds after he first saw the young lady walking between the cars (57). Although he had testified at his deposition that he was unable to recall the length of time, and could not even recall if it was more or less than five seconds (72-75), Mr. Laidlow insisted at trial that his one-or-two-second estimate was accurate and explained that he had arrived at that estimate only after carefully "think[ing] everything over" (75-76). He also testified that there were no trucks or ...