The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This decision is rendered following a four day non-jury trial. This is an action brought under the Federal Tort Claims Act ("FTCA") 28 U.S.C. § 1346(b)(1) and 28 U.S.C. § 2674 et seq. to recover damages for personal injuries to Thomas Saint, the son of Eve Saint, his mother and guardian ad litem.
The time was June 7, 2002 at about 6:20 a.m. The location was at the intersection of Route 110 and the north service road of the Long Island Expressway ("LIE"). At that time and place, there was a collision between a tractor-trailer ("T-T") owned by the United States Postal Service ("USPS") and operated by Mark P. Arbucci and a Lincoln automobile operated by twenty year old Thomas Saint ("Saint"). This action to recover damages for personal injuries is brought on behalf of Thomas Saint by his mother, Eve Saint as Guardian Ad Litem for her son.
Other than the speed of the respective vehicles and the damages issues, virtually all of the material facts in regard to the collision are undisputed. The T-T was being operated by Arbucci in a southbound direction on Route 110. The Lincoln car was being operated by Saint in a northbound direction on Route 110.
As the Lincoln car approached the intersection of Route 110 and the north service road of the LIE it moved into the left turn lane and made a left turn and entered the intersection. The T-T, proceeding south, came into contact with the right side of the Lincoln car. There was a severe impact.
Following the collision, the Lincoln car traveled approximately 250 feet, having crossed the grass median dividing Route 100, traversed the northbound lanes of Route 110 and came to a rest on the easterly sidewalk against a metal barrier. The Lincoln car sustained substantial damages to the right side of the car at the initial impact with the T-T, and also, substantial damages to the front of the car when it ended up colliding with the easterly metal barrier. After the collision, the T-T traveled approximately 372 feet and came to a stop in the extreme right southbound lanes of Route 110 near the southbound entrance for the LIE.
As to the weather, it was raining heavily and the streets were wet. At the time of the collision, the traffic lights at the intersection were green for both northbound and southbound traffic on Route 110. There was a green turn arrow facing the Lincoln car as it was proceeding northbound just prior to its turn. However, this turn arrow was not green at the time the Lincoln car turned left.
All of these facts are virtually undisputed. As to liability, the real triable issues are the speeds of the two vehicles, prior to and at the time of the collision.
I. THE FEDERAL TORT CLAIMS ACT
A complaint states a cause of action under the FTCA if it presents a claim that is " against the United States,  for money damages, . . .  for injury or loss of property, or personal injury or death  caused by the negligent or wrongful act or omission of any employee of the Government  while acting within the scope of his office or employment,  under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477, 114 Sup. Ct. 996, 1001, 127 L.Ed.2d 996 (1994) (quoting 28 U.S.C. § 1346(b)).
The Supreme Court has consistently held that the reference in Section 1346(b) to the "law of the place" means the law of the State which is a source of substantive liability. Id. at 478; see also, e.g., Miree v. DeKalb County, 433, U.S. 25, 29 n.4, 97 Sup. Ct. 2490, 2491 n.4, 53 L.Ed.2d 537 (1977); United States v. Muniz, 374 U.S. 150, 153, 83 Sup. Ct. 1850, 1852, 10 L.Ed.2d 805 (1963); Rayonier, Inc. v. United States, 352 U.S. 315, 318, 77 Sup. Ct. 374, 376, 1 L.Ed.2d 354 (1957). In this case, the law of the State of New York governs the actions of the parties.
II. LIABILITY - AS TO THE LEFT TURN BY THOMAS SAINT IN THE LINCOLN CAR
The movement of Saint's Lincoln car as it approached the intersection was governed by the New York Vehicle and Traffic Law ("VTL"), § 1141, which provides as follows:
§ 1141. Vehicle Turning Left
The driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard.
The violation of this statute, which provides that a left-turning automobile must yield to oncoming traffic, constitutes negligence per se. Ciatto v. Lieberman, 266 A.D.2d 494, 495, 698 N.Y.S.2d 54 (2d Dep't 1999).
Both vehicles approached the intersection facing green signal lights. New York Vehicle & Traffic Law § 1111(a)(1) provides:
1. Traffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.
Under the provision of VTL § 1111(a) (1), at an intersection, Saint could properly turn left on a solid green light even if the green turning arrow was not lit, provided he complied with the provision of VTL § 1141. Saint should have yielded the right of way to the USPS T-T, and failed to do so. Therefore, Saint violated the provisions of VTL § 1141. However, the plaintiff contends that Mark Arbucci, the USPS driver was also negligent and bears a share of the total responsibility for the accident, because the USPS vehicle was traveling at an excessive rate of speed on a rainy day on a wet road, namely at least 60 miles per hour on a road where the speed limit was 55 miles per hour.
Another statute involved in this case is VTL § 1180(a), (b) and (e) which states:
(a) No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing;
(b) Except as provided in subdivision (g) of this section and except when a special hazard exists that requires lower speed for compliance with subdivision (a) of this section or when maximum speed limits have been established as hereinafter authorized, no personal shall drive a vehicle at a speed in excess of fifty five miles per hour;
(e) The driver of every vehicle shall, consistent with the requirements of subdivision (a) of this section, drive at an appropriate reduced speed when approaching and crossing an intersection . . . and when any special hazard exists with respect to pedestrians, or other traffic by reason of weather . . .."
In a recent Second Department case the Court reviewed the rules with regard to a left turning vehicle at an intersection with a green light. In Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 520, 813 N.Y.S.2d 120 (2d Dep't 2006), it was held that the straight driving vehicle had the right of way and the driver "was entitled to anticipate that the plaintiff would obey the traffic laws which required him to yield to the defendant's vehicle." In Gabler the plaintiff left turning driver conceded that he never saw the defendant's vehicle prior to making his left turn and it was held that he "was negligent as a matter of law in failing to see that which he should have seen through the proper use of his senses." Id. Here, there is no such proof of Saint not seeing the defendant's vehicle.
It is also axiomatic that not every left turning driver is totally responsible for a collision with a straightaway driver. In Luck v. Tellier, 222 A.D.2d 783, 784-785, 634 N.Y.S.2d 814, 815 (3d Dep't 1995), the defendant driver of a left turning vehicle, that crossed in front of the plaintiff's straightaway motorcycle, pleaded guilty to violating VTL § 1141. However, at the personal injury trial, the defendant driver denied that he was negligent, claiming that it was foggy and raining at the time of the collision and that he never saw the plaintiff motorcycle because its light was "dim." In denying the plaintiff's motion for summary judgment, the Court held that, notwithstanding the plea of guilty to VTL § 1141, the defendant was not foreclosed from proving that he "exercised reasonable care in an effort to comply with the statute, and, thus, his failure to do so should be excused." Id.
In an effort to ascertain whether there is any liability on the part of the T-T driver, the Court will now review what it considers to be the material testimony on this issue.
(1) The Plaintiff's Case on Liability
Kevin R. Theriault is an accident reconstruction expert. He was the only witness for the plaintiff on the issue of liability. He is trained in the field of accident reconstruction. In his field, he has done more than 850 accident reconstructions and over 700 of those situations involved tractor trailers. Theriault was retained in this matter by plaintiff's counsel and provided with the police reports, police photographs and statements from the T-T driver and an independent witness, one John Widecki. The police reports state that an "apparent contributing factor is Saint's failure to yield right of way." The police reports do not attempt to reconstruct the accident and make no determination as to the speed of the drivers.
Theriault visited the accident site on April 10, 2005, mapped the roadway dimension and prepared a diagram. After making certain calculations, he estimated Saint's speed during the turn was between 10 and 15 miles per hour and the distance from the left turn stop bar to the point of impact was approximately 591/2 feet. Theriault estimated that Saint made the turn in between 2.7 and 4 seconds. This amount of time was enough for an experienced commercial driver, traveling at a reasonable speed, to perceive the potential danger and slow down sufficiently to allow Saint to complete the turn. The Court agrees.
Theriault did a more interesting calculation in his determination of the speed of the T-T. Fortified by many photographs, he reached that determination based on two factors: (1) the post-impact movement of the T-T and (2) the post impact movement of the Lincoln. The T-T traveled 372 feet from the impact to its final resting place. Without any braking by the T-T, Theriault estimated that it was traveling at a maximum speed of 56.1 miles per hour. However, the T-T driver testified that immediately upon the point of impact he slammed on his brakes as hard as he could for 3 to 4 seconds. Theriault calculated that if the T-T braked all the way from impact to final rest 372 feet away, his maximum speed was 68.4 miles per hour. However, the T-T driver testified that he did not keep his foot on the brake all the way. In that regard, Theriault estimated the speed of the T-T between 56 and 68 miles per hour. His best estimate was more than 60 miles per hour.
Theriault estimated that the T-T was from 221 to 328 feet from the intersection when the Lincoln car arrived at the stop bar in the left turn lane. In his opinion if the T-T was driving at 40 miles per hour, as Arbucci stated, Saint's vehicle, which took between 2.7 and 4 seconds to turn, would have cleared the intersection and there would have been no accident.
In essence, the plaintiff's expert based his calculations of the speed of the T-T prior to and at impact on three factors (1) the final resting place of the T-T 372 feet from the point of impact, (2) the final resting place of the Lincoln car, approximately 250 feet from the point of impact, and (3) the extensive damage to the front of the Lincoln car caused by its impact with the side railing of the northbound lanes. As to the latter factor, Theriault estimated that, after impact with its right side, the Lincoln car traveled approximately 250 feet, slightly uphill, across a grass median divider, gouging the divider into and across the northbound lanes of Route 110 striking the guardrail at a speed of approximately 30 miles per hour; all the time while the Lincoln car was in gear. The photographs demonstrate the severe impact and extensive damage to the front of the Lincoln car caused by this second impact. (See the photographs in Appendix A annexed hereto). Theriault explained the reasons for his determinations as follows:
Q: By the way, I would like to hand you Plaintiff's Exhibit 16 for identification.
A: These are handwritten notes and calculations I performed.
A: To the speed the post-impact speed of the Lincoln.
Q: These are the calculations in Plaintiff's Exhibit 16 for identification that you used to calculate the speed of the tractor trailer based on the final resting position of the Lincoln?
Q: Let's start with the Lincoln at its resting point.
How did you do your calculations regarding its impact speed?
A: The impact speed is based on the amount of crush to the front of the vehicle. I determine it to be approximately 21 inches.
Now, that isn't the total amount of crush, because it's some damage that is what we call override damage from the guardrail. There's actually more crush in that, but we have to make the adjustment of half of that in order to get the 21 inches.
Q: What did you do to calculate your speed?
A: Using the graph alone, and with 21 inches of crush with a larger car gives me approximately between 25 and 30 miles an hour.
THE COURT: That's for which vehicle?
THE WITNESS: The Lincoln, the frontal impact to the guardrail.
Q: That's just the speed of the Lincoln when it's hitting the guardrail, correct?
Q: By the way, how far did the Lincoln travel before it hit that guardrail?
A: Approximately 250 feet.
Q: So the Lincoln traveled 250 feet from the point of impact with the tractor trailer until it hit the guardrail at 30 miles an hour?
Q: By the way, is the vehicle traveling uphill or downhill?
A: It's traveling uphill and, again, we're dealing with a 3 percent positive grade.
Q: Does that affect the deceleration rate?
Q: What about whether or not the car was in gear, would you assume the car was in gear?
Q: Does that affect the deceleration rate?
A: Again, you have drag from the engine and transmission, from an engine that's not running anymore.
Q: What about the undercarriage dragging on the ground, is that one?
Q: As reflected by the plowing through the grass and the scrapes on the road?
Q: Now, based on the deceleration factor that you just told us, the .42, and putting aside for a moment the guardrail impact, can you calculate a speed just based on the deceleration rate?
Q: Or deceleration factor?
A: That speed came out to be 55.9 miles an hour.
Q: That's the speed of what?
A: From impact to final rest, not including the impact to the guardrail.
If the Lincoln had come to a stop moments before striking the guardrail, that's what the speed of the Lincoln would have been, is 55.9 miles an hour.
THE COURT: Let me see if I understand what you just said. The speed from the time of impact to the time the Lincoln came to rest is 55.9 miles per hour?
THE WITNESS: If it had not hit the guardrail. If it stopped an inch of the guardrail, that's what the speed of the Lincoln would have been post-impact speed.
Q: The immediate post-impact speed?
Q: Right at the point of impact that would have been the speed, am I right?
Q: Now, what happens when you add in the fact that the Lincoln did not stop just before the guardrail but, in fact, smashed into the guardrail at 30 miles an hour?
A: I combine the two speeds and it equates to a speed of 63.4 miles an hour.
Q: If that was the speed of the Lincoln at the time of impact, then what's the speed of the tractor trailer at the time of impact?
MR. FISHER: With the Lincoln.
A: Because there's an energy exchange, the speed of the tractor trailer at the moment of impact is approximately 63.4 miles an hour.
Q: What's the basis for your disagreement?
A: Generally with this type of damage I would normally see at highway speeds during my investigations of crashes, and the fact that the damage was caused to the Lincoln and then pushed the Lincoln 250 feet up the roadway, across the roadway, and into a guardrail, definitely suggests that this is a highway speed crash.
Q: When you say highway speed, you mean over 60 miles an hour?
Tr. at 118, 119, 122, 125, 128, 129, 130, 131, 136.
So that, according to this expert there was an exchange of energy from the T-T to the Lincoln which caused the Lincoln to travel 250 feet and smash into the siderail on the opposite side of the road. The speed of the T-T at the time of impact was therefore calculated to be 63.4 miles per hour.
On cross-examination Theriault agreed that the plaintiff slowed down but did not come to a stop before making his left turn and that the speed of both drivers should have been reduced because of the rain. Theriault also conceded that the left turning Lincoln driver had to yield the right of way to oncoming traffic and, if there was any doubt, the Lincoln should not turn into such oncoming traffic, and should "err on the side of caution." However, he also stated that the T-T driver also had the obligation to drive at a reasonable rate of speed, especially in rainy weather, and always to be aware that the T-T needs additional distance to stop -- therefore to proceed at a slower speed.
The Court also takes note of the relevant provision of the New York State Commercial Driver's Manual in evidence (Plf. Ex. 18). These provisions include the subject matter "Matching Speed to the Road Surface" and include the following warnings:
The effect of speed on stopping distance. Whenever you double your speed, it takes about four times as much distance to stop and your vehicle will have four times the destructive power if it crashes. High speeds increase stopping distances greatly. By slowing down a little, you can gain a lot in reduced braking distance.
Slippery Surfaces. It will take longer to stop and it will be harder to turn without skidding when the road is slippery. You must drive slower to be able to stop in the same distance as on a dry road. Wet roads can double stopping distance. Reduce speed by about one third (e.g., slow from 55 to about 35 mph) on a wet road.
Also, in the Federal Motor Carrier Safety Regulations Handbook, in evidence (Plf. Ex. 19), it is stated that "Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions such as those caused by . . . rain . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist."
(2) The Defendant's Case on Liability
In the defendant's case, T-T operator Mark Abrucci testified that he drove a route from 3:15 a.m. to 11:45 a.m., six days a week. He drove a different T-T every day. There was a governor on his T-T set for 60 miles per hour and he couldn't drive faster than that speed. The T-T has regular foot brakes "just like a car." (Tr. at 230). The morning of the accident, he reported at 3:15 a.m., he received his load of mail, checked the brakes and traveled to Holbrook and then Medford where he unloaded mail and picked up empty containers. He was on his way back from the Huntington Station Post Office to the Mid Island Post Office and was southbound on Route 110 when the accident occurred. The trailer was empty. Abrucci testified that the accident occurred in the right-hand ...