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Riccio v. United States

May 29, 2007

CAROL RICCIO AND DENNIS RICCIO, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Azrack, United States Magistrate Judge

DECISION AND ORDER

On October 18, 2000, plaintiff Carol Riccio ("plaintiff") was driving home from work when her car was struck by a United States Postal Service ("USPS") truck. On February 21, 2003, plaintiff and her husband, Dennis Riccio (together, "plaintiffs"), commenced the instant action against defendant United States of America ("defendant") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), to recover damages for personal injuries.

On February 23, 2007, this Court presided over a one-day bench trial, consented to by both parties pursuant to 28 U.S.C. § 636(c), to determine liability. Based upon the evidence and arguments presented, liability is apportioned equally between plaintiff and defendant. In so holding, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To the extent that any of the findings of fact may be deemed conclusions of law, they also shall be considered conclusions. Likewise, to the extent that any of the conclusions of law may be deemed findings of fact, they shall be considered findings. See Miller v. Fenton, 474 U.S. 104, 113-14 (1985) (noting the difficulty of distinguishing findings of fact from conclusions of law).

I. FACTUAL BACKGROUND

The time was October 18, 2000 at about 3:00 p.m. The location was the intersection of Hillside Avenue and the southbound service road of the Cross Island Parkway ("CIP") in Queens, New York. At that time and place, there was a collision between a postal truck*fn1 owned by the United States Postal Service ("USPS") and operated by USPS employee Gary M. Gainer and a Mitsubishi automobile operated by plaintiff, Carol Riccio. This action to recover damages for personal injuries is brought by Carol Riccio and her husband, Dennis Riccio.

Many of the material facts regarding the collision are undisputed. The postal truck was being operated by Gainer in an eastbound direction on Hillside Avenue. The Mitsubishi Galant was being operated by plaintiff in a westbound direction on Hillside. Plaintiff attempted a left turn from the left lane in order to enter the southbound access road to the CIP. While in the middle of the intersection, crossing the westbound Hillside lanes, the postal truck, proceeding west in the right lane, came into contact with the right side of plaintiff's car.

As to the weather, it was cloudy. It had been raining earlier in the day, but by the time of the incident, it was only lightly misting or drizzling. The streets were wet from the earlier rain.

Both parties have excellent driving histories and are very familiar with the intersection at issue. Plaintiff is employed by the NYC Board of Education as a school aide at an elementary school in Queens, New York. She lives in Brooklyn and drives to and from work every day. Her daily return route includes making the very left turn she was making when the incident at issue occurred. Gainer lives near the intersection and also travels through it regularly during his work shifts as a Vehicle Operations Maintenance Assistant.

As to liability, the real issues are the colors of the traffic lights at the intersection at the time of the accident and whether each driver operated their vehicle with reasonable care. Plaintiff contends she had a green arrow giving her the right of way and a protected left turn. If plaintiff is correct, then Gainer would have had a red light and defendant would be liable to plaintiff for running that red light. Gainer, however, disputes plaintiff's version of the facts and states that he had a green light to proceed through the intersection and, thus, had the right of way.

During the trial, plaintiff testified and did not call any other witnesses. The government called Gainer and accident reconstruction expert Grahme Fischer as witnesses.

A. Testimony of Carol Riccio

The intersection where the accident occurred is often busy and is governed by a number of traffic lights. Two sets of traffic lights control westbound Hillside Avenue traffic and, therefore, controlled plaintiff immediately prior to the incident in question. Both sets of lights have the traditional setup of three lights (red, yellow, and green) and, in addition, have two attached left turn arrow lights (yellow and green). In order to make the left turn onto the CIP, drivers must cross three eastbound lanes of Hillside Avenue.

Plaintiff testified that, prior to the accident at issue, she was in the left-most lane. This lane allows a left turn onto the CIP, but it is not a turn-only lane; vehicles in that lane may also proceed straight. The light was red when plaintiff approached the intersection, so she stopped. There were approximately two to three cars ahead of plaintiff while she was stopped at the light.

When the light turned green, the green arrow providing a protected left turn also turned on. The two to three cars in front of plaintiff either turned left or went straight. Plaintiff then began her left turn. She testified that the arrow remained green as she began her turn. Plaintiff estimated her speed during the turn to be approximately ...


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