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John Saporito and Phyllis Saporito v. Kenneth E. Smith and Department of the Navy of the United States of America

September 21, 2011

JOHN SAPORITO AND PHYLLIS SAPORITO, PLAINTIFFS,
v.
KENNETH E. SMITH AND DEPARTMENT OF THE NAVY OF THE UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Wall, Magistrate Judge:

MEMORANDUM AND ORDER

This action was brought under the Federal Tort Claims Act, 28, U.S.C. §1346(b), to recover damages for personal injuries suffered by plaintiff John Saporito ("Saporito") when he fell from his motorcycle while trying to avoid a collision with a car driven by defendant Kenneth E. Smith on October 6, 2005. At the time of the accident, Smith was acting within the scope of his employment with the defendant United States Department of the Navy.

As a threshold matter, I note that although Smith was named as a defendant in this case, there is no indication in the docket that he was actually served with the complaint, nor is there an answer or notice of appearance filed on his behalf. Moreover, plaintiffs have not moved for entry of a default judgment against Smith, he is not listed as a defendant on the joint proposed pretrial order submitted by the parties, and in that document, Smith is identified by plaintiffs not as an individual defendant, but rather as an employee of the government working within the scope of his employment at the time of the accident. Accordingly, I deem that plaintiffs have abandoned any claims they may have asserted in the complaint against Smith and dismiss the complaint against him.

The liability phase of the trial was heard by the court on April 29, 2010. At trial, plaintiffs presented the testimony of Smith, Police Officer Lisa Burton, Saporito, Joseph Terrizzi, and William Petersen. Defendants offered no additional testimony. Based on the evidence presented, as well as the post-trial materials submitted by the parties, the court makes the following findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure. To the extent that any of the findings of fact may be deemed a legal conclusion, it shall be deemed a conclusion of law, and vice versa.

I. FINDINGS OF FACT*fn1

The motor vehicle accident at issue occurred in the morning of October 6, 2005 at the intersection of Route 454 ("454"), also known as Veterans Highway, and Old Willets Path.*fn2

Trial Transcript ("Tr.") at 3. Suffolk County Police Officer Lisa Burton testified that there is a police precinct located approximately 500 feet from the accident location. Id. The precinct is located on the north side of 454 at the northeast corner of 454 and Old Willets Path.

At the intersection with Old Willets Path, westbound 454 comprises six lanes -- a left turn lane, four through lanes, and a right turn lane. Tr. 4. For purpose of clarity of testimony during the trial, the lanes were sometimes referred to by numbers, with Lane 1 being the left turn lane and proceeding to Lane 6, the right turn lane. The lanes implicated in this accident are the left hand turn lane (Lane 1), the leftmost through lane (Lane 2), and the adjacent through lane (Lane 3). As will be seen infra, the witnesses's testimony varies regarding which of these lanes was in use at the time of the accident.

At the time of the accident, defendant Smith was employed as a marine recruiter on Long Island. Tr. at 15. He testified that on the date of the accident, he was driving a government-owned vehicle en route to the police precinct to pull records on government business. Tr. at 15-16. He had never been to the police precinct before. Tr. at 16. The car was a silver Malibu. Tr. 30.

According to Smith, he entered the left hand turn lane of 454 at the Old Willets Path intersection while the signal was red. Tr. 33. While waiting at the light in the left turn lane, Smith surveyed the area and realized he could see the police precinct to his right and behind him. Tr. 18-19, 32. Upon this realization, he decided to make a U-turn and go back around. Tr. 19, 33. When Smith turned back to the traffic signal, it had turned green. Tr. 20. There was a vehicle*fn3 ahead of Smith in the left turn lane that did not move on the green light. Tr. 20. Smith believed the driver may have been on a cell phone. Tr. 20. Smith waited a few seconds, honked his horn, but the vehicle ahead did not move. Tr. 21. He honked his horn again, and the vehicle again did not move. Tr. 21.

At this point, Smith looked over his shoulder to see if there was any traffic in the lane next to him. Tr. 22. He testified that he looked in his rearview mirror, his sideview mirror, and over his right shoulder, but saw no vehicles at all approaching in any of the lanes on 454. Tr. 22-23. Smith testified that he turned on his turn signal, moved out of the left turn lane into the adjacent lane to his right and proceeded westbound. Tr. 23, 35. He intended to go around him and make a U-turn further ahead about 100 yards. Tr. 34-36. He estimated that he was traveling at about 10 or 15 miles per hour when he changed lanes. Tr. 35.

As he passed the vehicle that had been stopped ahead of him in the left turn lane, Smith looked at that driver in his sideview mirror, but testified that he was not distracted. Tr. 24. Smith admitted that he looked at the driver of the stopped vehicle because he "wanted to see what his problem was." Tr. 24. He estimated that he was approximately 10-15 feet in front of the pickup truck when he looked in his sideview mirror to look back at that vehicle's driver, who was talking on a cell phone. Tr. 36.

Smith testified that when he looks at his mirrors, "I just roll over" and look in the other mirrors. Tr. 37. As he looked away from the sideview mirror and into his rearview mirror, he saw Saporito on his motorcycle "leaning over, starting to fall." Tr. 37. Smith did not see him fall off and could not tell what lane he had been traveling in. Tr. 24-25. Smith testified that he did not cut off the motorcycle, Tr. 30, but after proceeding through the intersection, he parked his car and went back to see if Saporito was okay, Tr. 25. Smith testified that Saporito was on the ground next to the vehicle that was still in the left turn lane. Tr. 25-26. By marking plaintiff's exhibit 1 with a "JS", Smith indicated that Saporito came to rest in the middle of Lane 2, or the leftmost through traffic lane. Tr. 27-28.

Saporito, Joseph Terrizzi, and William Petersen were riding their motorcycles to Long Beach for lunch on October 6, 2005. Tr. 41-42. According to Petersen, the three rode together about once a week. Tr. 56. As they approached Old Willets Path, they were traveling in staggered formation with Saporito in front, Petersen next behind and to the right, and Terrizzi last, directly behind Saporito. Tr. 42. Terrizzi testified that there were approximately 50 feet between him and Saporito, and that they were traveling at approximately 40 miles per hour. Tr. 42. Petersen estimated the distance between each motorcyclist to be approximately 40 feet. Tr. 64. Petersen and Saporito estimated their speed to be 40 or 45 miles per hour. Tr. 57, 70. Terrizzi testified that there were some cars lined up to their left, and as Saporito was going by, a silver car "shot out right in front of" Saporito and he locked up his wheels and went "flying through the air." Tr. 42-43. Terrizzi placed the cars lined up -- the pickup truck and Smith's silver car -- in Lane 2, the leftmost through lane. Tr. 50. Terrizzi stopped and parked his bike, then went back to Saporito, who was laying on the ground. Tr. 43. By marking plaintiff's exhibit 1 with an "X", Terrizzi indicated that the three motorcycles were ...


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