United States District Court, E.D. New York
MICHAEL DALTON as ADMINISTRATOR OF THE ESTATE OF AILEEN McKAY-DALTON and MICHAEL DALTON, Individually, Plaintiffs,
UNITED STATES OF AMERICA, Defendant
For Michael Dalton, individually and as Administrator of the Estate of Aileen McKay-Dalton, Plaintiff: Daniel Justus Solinsky, Marvin Salenger, LEAD ATTORNEYS, Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, NY.
For United States of America, Defendant: Seth D. Eichenholtz, LEAD ATTORNEY, Melanie Dyani Hendry, United States Attorneys Office, Brooklyn, NY; John Vagelatos, United States Attorneys Office, Eastern District Of New York, Brooklyn, NY.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Michael Dalton filed suit against Defendant United States of America, pursuant to the Federal Tort Claims Act (" FTCA"), 28 U.S.C. § § 1346(b) and 2671, et seq., for the alleged wrongful death of his late wife, Aileen McKay-Dalton. (Compl. (Dkt. 1).) McKay-Dalton died as a result of injuries she sustained in a July 8, 2010, motor vehicle accident. Plaintiff alleges that federal agent Joel Loudon Murphy, who was driving the vehicle that collided with McKay-Dalton's Vespa scooter, was negligent in his operation thereof, causing the accident. (Id.) On December 15, 2014, through December 18, 2014, the court held the first portion of a bench trial, limited to the issue of liability. After considering the evidence put forth at trial, and having reviewed the parties' post-trial briefing on this issue, the court now states the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).
I. FINDINGS OF FACT
The tragic accident that is the subject of this case occurred at approximately 5:25 p.m., on July 8, 2010, at the intersection of Clinton Avenue and DeKalb Avenue, in Brooklyn, New York. It was summer, the weather was clear, and it was light out. (Bench Trial Tr. (" Tr") at 32-33, 200.)
A. The Intersection
Clinton Avenue is a two-way, two-lane roadway. Traffic travels both northbound and southbound, divided by a double-yellow line. (Tr. 60, 265.) There are parked cars on both sides of Clinton Avenue. (Tr. 265.) DeKalb Avenue is a one-way street, with traffic travelling westbound only. (Tr. 60, 265.) There are parked cars on both sides of DeKalb Avenue (Tr. 265; Def.'s Ex. S), and a bicycle lane just to the right of the left parking lane (i.e., closer to the south side of the street). (Def.'s Ex. S.)
Vehicular traffic at the intersection of Clinton and DeKalb Avenues is controlled by a three-phase (green/yellow/red) traffic signal light for all traffic going north- and southbound on Clinton as well as westbound on DeKalb. (Tr. 60.) There are also pedestrian lights at the corners of the intersection. (Tr. 265.) The traffic control lights were operating properly at the time of the accident. (Tr. 71, 87.)
There are crosswalks at all four corners of the intersection. (Tr. 60; Def.'s Ex. D; Def.'s Ex. S.) On Clinton, as traffic proceeds from south of the intersection, north towards the intersection, there is a stop line several feet south of the south edge of the south crosswalk. (See Def.'s Ex. D; Def.'s Ex. E.) On DeKalb, as traffic proceeds from east of the intersection, west towards the intersection, there is a stop line several feet east of the east edge of the east crosswalk. (See Def.'s Ex. D; Def.'s Ex. E.) On the east side of Clinton, it is approximately 44 feet from the south side of the intersection to the north side thereof, with " intersection" defined as the inner area between the closest boundaries of the crosswalks. In other words, it is approximately 44 feet between the northernmost line of the south crosswalk and the southernmost line of the north crosswalk. (Tr. 270.)
If a person were standing to the east of the intersection, on DeKalb Avenue, just to the left of a car parked in the right parking lane (i.e., on the driver's side of the car), it would be possible to see the color of the traffic lights that control westbound vehicular traffic on DeKalb. However, from that position, during daylight hours, it would be difficult, if not impossible, to see the color of the traffic lights that control northbound and southbound traffic on Clinton Avenue. The court made this observation during its December 18, 2014, site visit to the vicinity of the intersection. See supra note 2. (See also Tr. 291-92.) On a summer afternoon at approximately 5:25 p.m., looking from the northeast to southwest, into the sun, this certainly would be impossible.
B. The Collision
On July 8, 2010, near the time of the accident, Special Agent Joel Loudon Murphy was operating a black Ford Explorer (the " SUV") near the intersection. He was driving northbound on Clinton Avenue, toward the intersection. Decedent Aileen McKay-Dalton was operating a powder blue Vespa scooter near the intersection. She was driving westbound on DeKalb Avenue, toward the intersection. The accident occurred when McKay-Dalton and Murphy both entered the intersection--McKay-Dalton, coming from the east, and Murphy, coming from the south--and collided in the east half of the intersection. (See Tr. 194, 270.)
There is a dispute between the Government's expert and Plaintiff's expert with respect to the north/south position of the vehicles' point of impact. The Government's expert, Dr. Matthew Kaplan, testified that the point of impact occurred approximately halfway between the interior north/south boundaries of the crosswalks. (Tr. 270.) Plaintiff's expert, William FitzPatrick, contended that the point of impact occurred approximately 10 feet to the south of where Dr. Kaplan had placed it. (Tr. 464-65.) The court credits Dr. Kaplan's testimony over that of Mr. FitzPatrick for several reasons, including testimony by eyewitness Camila Crazut that the collision occurred in front of her, in the northeast quadrant of the intersection (see Tr. 193-94); testimony by two credible eyewitnesses that the Vespa, when stopped at the DeKalb Avenue traffic light, was closer to the north side of the street than the south side (see Tr. 132-33 (Elesh), 216 (Stephens)); and the court's determination, discussed at length below, that Dr. Kaplan's expert opinions are more reliable than those of Mr. FitzPatrick. See infra Part I.F.1.
The front of McKay-Dalton's Vespa collided with the front passenger side of Murphy's SUV, forward of the SUV's passenger doors, on the right side of the frame. (Tr. 64, 84, 85-87; Pl.'s Ex. F at 256, 259; see also Pl.'s Ex. S at DALTON_USA_000028 (noting damage to the Vespa's front axle).) McKay-Dalton was thrown off of the Vespa. (Tr. 193, 208, 212.) She hit the windshield of the SUV (Pl.'s Ex. F at 256; Pl.'s Ex. S at DALTON_USA_000028; Tr. 64), and she flew north on Clinton, where she landed on the roadway, on the north side of the intersection. (Tr. 208, 212.) The Vespa also came to rest on Clinton Avenue, north of the northern crosswalk by less than one car's length. (Tr. 65-66, 101-03; Pl.'s Ex. F at 247, 251.) McKay-Dalton likely landed approximately one car length's north of the Vespa. (Tr. 104; Pl.'s Ex. F at 247.) The SUV also came to rest on the north side of the intersection (Pl.'s Ex. C), although it is unclear precisely where the SUV came to rest, as it was moved to facilitate emergency vehicles. (Tr. 66-67.) McKay-Dalton died as a result of the injuries she sustained in the accident. (Joint Pretrial Order (Dkt. 63) ¶ 7(d), at 4.)
C. Sequencing of Traffic and Pedestrian Signals
The vehicular traffic lights at the intersection at issue operate on a 60-second cycle. Starting at zero, the traffic light for Clinton Avenue turns green, and it remains green for 19 seconds. It is then yellow for 3 seconds, and, finally, red for 38 seconds (for a total of 60 seconds). (Tr. 274-75; Def.'s Ex. U; Def.'s Ex. Y.) The corresponding traffic light for DeKalb Avenue is red for the 19 seconds that the light on Clinton is green. DeKalb remains red for the 3 seconds of Clinton's yellow and for an additional 2 seconds after the Clinton light turns red. In other words, the vehicular traffic lights are red in all directions--called an " all red" --for 2 seconds of the cycle. (Tr. 274-75; Def.'s Ex. U; Def.'s Ex. Y.) Then, at second 24 in the cycle, the traffic light on DeKalb turns to green. Accordingly, once the traffic light for northbound vehicular traffic on Clinton turns yellow, there is a period of 5 seconds before the traffic light for westbound vehicular traffic on DeKalb turns green. (Tr. 274-75; Def.'s Ex. U; Def.'s Ex. Y.)
The pedestrian lights are coordinated with the traffic lights. They also operate on a 60-second cycle; however, their phases occur at different points within that cycle. (Tr. 277; Def.'s Ex. V; Def.'s Ex. Y.) Pedestrians on Clinton Avenue, crossing DeKalb, receive a solid white signal (a white person) at the same time the vehicular traffic light for Clinton turns green. The pedestrian light remains a white person for the first 7 seconds of the green traffic light. Then, for the next 12 seconds, while the vehicular traffic light remains green, the pedestrian signal turns to and remains a blinking red hand. (Tr. 277; Def.'s Ex. V; Def.'s Ex. Y.) At second 19, at the same time the vehicular traffic light turns yellow, the pedestrian light changes from a blinking red hand to a solid red hand. The pedestrian light remains a solid red hand for the 3 seconds of the yellow traffic light and then throughout the entire red traffic light. (Tr. 277; Def.'s Ex. V; Def.'s Ex. Y.) This means that the Clinton Avenue pedestrian signal becomes and remains a solid red hand for a total of 5 seconds before the traffic light for westbound vehicular traffic on DeKalb Avenue turns green. (Tr. 277; Def.'s Ex. V; Def.'s Ex. Y.)
D. Joel Loudon Murphy
Special Agent Murphy chose to go into government service after working for some period of time at PricewaterhouseCoopers LLP. (See Tr. 11.) When first accepted into government service, he spent " approximately more than a half year" at a training academy in Georgia, preparing for work as a criminal investigator. (Tr. 11.) The training was all-inclusive and fairly extensive. (Tr. 11.) He learned at the training academy that when performing investigative work, one must be aware of one's surroundings, observe what is going on, and make decisions and take actions based on those surroundings and observations. (Tr. 11-12.)
After graduating from the training academy in February 2009, Murphy was assigned to a unit in Staten Island, New York. (Tr. 12.) Around February 2010, after approximately one year with the Staten Island unit, Murphy was transferred to the El Dorado Task Force, dealing with drug enforcement. (Tr. 12-13.) At the time of the accident, Murphy had been working for the El Dorado Task Force for approximately 6 months. (Tr. 13.)
2. Activities Earlier That Day
On the date of the accident, Murphy had been participating in a surveillance operation in the Fort Greene/Prospect Park area of Brooklyn, New York. (Tr. 13, 17.) He had not been actively conducting surveillance; instead, the task force was waiting for a target to enter the area. If the target did appear, the task force was planning to pick up surveillance on the target. (Tr. 18.) Murphy had previously conducted surveillance in Brooklyn, but he had not done much in the area near the site of the accident. He did not recall having previously been on either Clinton or DeKalb Avenues. (Tr. 19.)
Murphy testified that he had only a " general memory" of the surveillance operation. (Tr. 13.) He did not recall what time he had left his home that day, or what time he had begun work. (Tr. 17.) He did not recall when or where he had last eaten prior to the accident. (Tr. 18.) Murphy's first clear memory of the day was heading northbound on Clinton Avenue at approximately 5:00 p.m. (Tr. 13, 18, 23.) He did not recall where he first turned onto Clinton Avenue. (Tr. 19.) He did not recall to which intersecting street he was heading at that time. (Tr. 23.)
3. Items in Vehicle
a. GPS Device
At the time of the accident, Murphy had in his possession a GPS direction-assistance device, either a Garmin brand or a similar item. (Tr. 20, 42.) The unit was standard, one that a private citizen could purchase, although it was Government-issued. (Tr. 47.) The device was not mounted on the dashboard or windshield as a permanent GPS device in the car. (Tr. 20, 42-43.) Murphy testified that he typically would set the GPS unit on the dashboard or in the console of the car, and that it was not his practice to hold the GPS unit in his hands while driving. (Tr. 20, 42-43, 47.) He also testified that he did not specifically recall where the GPS unit was located on the date of and at the time of the accident. (Tr. 20, 50.)
At one point during his surveillance operation, Murphy wanted to take a break, and to use the restroom, and he typed " bookstore" or a similar term into his GPS unit. (Tr. 20, 44, 47-48.) The unit listed a Barnes & Noble, and he selected that as his destination. (Tr. 47-48.) Murphy testified that he was not in a hurry to get to the Barnes & Noble, or to use the restroom, and that if it had been urgent to get to a restroom, he would not have gone to the Barnes & Noble. (Tr. 48.)
Murphy was following audio directions from the GPS unit, heading towards the Barnes & Noble, when the accident occurred. (Tr. 47-48.) He testified that he did not recall precisely whether it was a man's or a woman's voice, as he had not used the unit since the accident. He thought it had been a woman's voice. (Tr. 48.)
b. Cellular Telephones
Murphy also had in his possession at the time of the accident two cellular telephones: one personal and one Government-issued. (Tr. 21.) No calls were made or received on Murphy's Government cellphone around the time of the accident. (Tr. 78-79.) Murphy's personal cellphone records indicate that he used his personal cellphone to make two outgoing calls shortly after 5:00 p.m. (at 5:04 p.m. and 5:06 p.m., respectively). Both were connected for approximately 22 seconds; neither went into the recipient's voice mailbox. (Tr. 14, 390-91; Pl.'s Ex. AA-1.)
Murphy's cellphone records also indicate that he received a call on his personal cellphone immediately prior to the accident, at 5:24 p.m. However, this call was not answered; instead, it went into Murphy's voice mailbox. (Tr. 384-85, 391-92; Pl.'s Ex. AA at 1, 4; Pl.'s Ex. AA-1.) Consistent with these records, Murphy testified that he did not recall receiving a call at this time. (Tr. 14, 16-17.) As the phone records show that this call was not answered and instead went to voicemail, the court finds that Murphy was not distracted by the 5:24 p.m. phone call at the time of the collision.
When Murphy met with New York City Police Department (" NYPD") Detective Daniel Ryan, five days after the accident, Detective Ryan asked Murphy for his cellphone number. Murphy provided his business cellphone number, not his personal number. (Tr. 78-79.)
Murphy further had two Government-issued radios in his vehicle: a handheld and a vehicle unit. (Tr. 20-21.)
After the collision, Murphy went to McKay-Dalton to render aid. (Tr. 36-37, 129-30, 212.) Later, Murphy spoke to a police officer or officers at the scene. (Tr. 36-37.) Murphy may have initially spoken to Officer Anthony Manatrizio, who was working in the relevant precinct at the time of the accident, and who responded to the scene. (Tr. 107-09.)
At some point, Murphy called his supervisor, Lawrence Carlucci, but did not speak with him; he left a voicemail for Carlucci. (Tr. 38.) Eventually, Murphy spoke with a different agent, Rene Tirado. (Tr. 38.) Tirado received several phone calls from Murphy after the accident. (Tr. 53.) In the first phone call, Murphy advised Tirado that he had been in a traffic accident. (Tr. 54.) Tirado told Murphy to file a police report and to advise Carlucci, their supervisor. (Tr. 54-55.) Tirado did not inquire as to the seriousness of the accident, but in a subsequent phone call, Murphy informed Tirado that it was " serious." (Tr. 55.) Tirado does not recall having ever told Murphy not to speak to the police. (Tr. 54.) At some point, Tirado made a phone call or calls to an attorney or attorneys regarding the incident. (Tr. 54.) After speaking with Tirado, Murphy told the police that he was not feeling well, and he asked to be taken to the hospital. (Tr. 38-39.) Murphy testified that he did not refuse to speak to the police or tell them that he wanted a lawyer. (Tr. 39.)
Detective Daniel Ryan,  the NYPD detective from the Highway Patrol Collision Investigation Squad assigned to investigate the collision, arrived on the scene an hour or two after the accident, or possibly even later. (Tr. 57-60, 61-62, 82.) When Ryan arrived at the scene, Murphy was seated, alone, in the rear of one of the Highway Patrol vehicles. (Tr. 63, 82-83.) Murphy was there voluntarily. It was a very hot day, and Murphy could not be let back into his SUV to get out of the sun. (Tr. 82-83.) Ryan attempted to get some information from Murphy but was told that Murphy was going to be transported to the hospital for trauma. (Tr. 63) When Ryan approached him, Murphy told Ryan that he did not feel well. (Tr. 83-84.) Eventually, Murphy did leave the scene and he went to the hospital. (Tr. 83-84.)
Five days after the incident, Murphy and his attorney met with Detective Ryan in Ryan's office. (Tr. 74; Pl.'s Ex. I at 368; Pl.'s Ex. S at DALTON_USA_000027.) Ryan took Murphy's witness statement, which was consistent with Murphy's trial testimony. (See Pl.'s Ex. S at DALTON _USA_000027.) Murphy cooperated with the investigation to the extent that he was asked to do so, and he never refused to cooperate in any way. (Tr. 49.)
Murphy has not been back to the scene since the accident. (Tr. 34-35.)
E. Aileen McKay-Dalton
McKay-Dalton grew up in Scotland. (Tr. 220.) She moved to New York with Plaintiff Michael Dalton in 1994. (Tr. 221.) They lived in Tokyo from 2000 to 2003, and then moved back to New York in 2003. (Tr. 221.) Michael Dalton testified that when they lived in Tokyo, McKay-Dalton had driven a Vespa almost every day for two-and-a-half years. (Tr. 221-22.) She was 40 years old at the time of her death. (Pl.'s Ex. M at 611.)
2. Location Prior to Accident
Just prior to the accident, McKay-Dalton and the Vespa were stopped at the westbound traffic light at DeKalb Avenue. (Tr. 132-33, 210-11, 215.) The Vespa was the first vehicle at the traffic light, located between the stop line and the crosswalk. (Tr. 132-33, 215.) It was closer to the right (north) side of DeKalb than to the left (south) side. (Tr. 132-33.)
There is conflicting evidence regarding whether McKay-Dalton was wearing a helmet, or was wearing it ...