Opinion
No. 00 Civ. 0153 (KNF) (GBD)
July 9, 2002
OPINION AND ORDER
In this negligence action, brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671-2680, plaintiff, Felipe Casanova, Jr. ("Casanova"), seeks to recover damages occasioned by the alleged failure of a United States Postal Service truck driver to exercise the requisite degree of care while operating her truck through the streets of Bronx County, New York. As a result of the driver's conduct, plaintiff contends, a bicycle he was riding made contact with the driver's truck causing him to tumble and to suffer injuries to his face and head.
Pursuant to 28 U.S.C. § 636(c), the parties consented to having the non-jury trial of this action presided over by a United States magistrate judge. It was determined that the trial would be bifurcated, with one proceeding at which the issue of liability would be adjudicated and, if necessary, another proceeding at which the issue of damages would be determined. The trial of the issue of liability commenced and was completed on August 3, 2001. The following are the Court's findings of fact and conclusions of law made pursuant to Rule 52 of the Federal Rules of Civil Procedure.
FINDINGS OF FACT
On December 11, 1998, Casanova, a 39-year-old heroin addict, resided on East 181st Street, Bronx, New York. Plaintiff testified at the trial that, in 1998, he consumed as many as three bags of heroin each day intranasally, and that when he did not get his "fix of heroin" he would experience the symptoms of heroin withdrawal and would crave heroin.
On December 11, 1998, Casanova awoke somewhere between 9:00 a.m. and 10:00 a.m. Casanova testified that after awakening, he did not ingest any heroin. Instead, he watched television for approximately four hours, and then decided to visit a local supermarket using a bicycle he had owned for approximately one or two months. Plaintiff recalled that he had taken heroin a couple of days before December 11, 1998. However, Casanova did not remember how much heroin he had ingested at that time. At the trial, plaintiff denied that sleepiness was among the physical symptoms that he would experience during instances when he suffered from the effects of heroin withdrawal. However, prior to the trial, during a deposition, plaintiff gave contradictory testimony; he acknowledged that sleepiness was among the symptoms of heroin withdrawal he experienced. In any event, plaintiff testified that, as he rode his bicycle to the supermarket on December 11, 1998, he was not feeling the effects of any drugs.
Plaintiff stated that, to get to the supermarket, he rode his bicycle easterly along East 180th Street in the Bronx. East 180th Street is a two-way street on which traffic flows east and west. Plaintiff recalled that as he approached the intersection of East 180th Street and Prospect Avenue, he looked toward his right down Prospect Avenue. At that time, he observed a postal truck, in the middle of the block, traveling at a moderate rate of speed. At about that same time, plaintiff also observed that the traffic control light governing traffic moving along East 180th Street had turned to red. Therefore, Casanova slowed his bicycle as he approached the intersection, waiting for the traffic control light to change from red to green. When plaintiff was approximately one car's length from the corner of East 18Oth Street and Prospect Avenue, the traffic control light governing the movement of vehicles along East 180th Street changed to green. Consequently, plaintiff never brought his bicycle to a stop, but continued to travel through the intersection. Casanova testified that as he reached the corner, the postal truck turned left. At that point, plaintiff recalls, he "slammed on the brakes" of his bicycle, and his face and head hit the mid-section of the postal truck.
At the trial, plaintiff testified that at some point between the time he looked to his right and observed the postal truck moving along Prospect Avenue, and the time he entered the intersection on his bicycle, he looked at the traffic control light. However, during his deposition, plaintiff testified that after he looked at the postal truck as it moved along Prospect Avenue, he never looked up at the traffic control light.
Carrol Joyce McDermott ("McDermott") testified on behalf of the defendant. On December 11, 1998, McDermott was employed by the United States Postal Service and was stationed at the Tremont postal facility in Bronx County, New York. On that day, which McDermott described as clear, dry and very pleasant, she was assigned to drive a two-ton truck in order to deliver parcel post mail. McDermott recalled that in the afternoon, between 1:00 p.m. and 2:00 p.m., she was driving north on Prospect Avenue, a very wide one-way street that can accommodate two to three cars in its traffic lanes. McDermott testified that she was planning to make a left turn on to East 180th Street, and to proceed in a westerly direction. As she traveled along Prospect Avenue, she observed the traffic control light at East 180th Street turn from green to gold and then to red. McDermott engaged the left turn indicator light on her truck and stopped the vehicle at the corner of Prospect Avenue and East 180th Street. McDermott stated that when the traffic control light turned green, she looked to her left and to her right, then looked back to her left. When McDermott looked left, she observed that cars on East 180th Street had stopped because of the traffic control light. She had a clear view and could see halfway down East 180th Street to the middle of the block. She did not see any vehicles moving into the intersection and she did not observe any bicycle moving into the intersection. McDermott indicated that she would not have proceeded into the intersection if a bicycle had been there.
After looking left, right and left again, along East 180th Street, McDermott proceeded slowly into the intersection. In less than fifteen seconds, McDermott heard the sound of something striking metal and felt a jolt. It sounded to her as if something had hit the back of her truck. McDermott recalled that at that time she had not started to make her turn on to East 180th Street, although the truck had advanced beyond the crosswalk at Prospect Avenue and East 180th Street. Upon hearing the metallic bang and feeling the jolt, McDermott stopped the postal truck, put the truck's transmission in the park setting, opened the side door of the truck, looked out and observed a person in the street and a mangled bicycle nearby. McDermott then exited her vehicle from the passenger side and went to the rear of the truck. There she saw plaintiff bleeding from the head.
Upon seeing plaintiff lying in the street, bleeding from the head, McDermott asked those who had gathered around to observe the incident to summon the police and an ambulance. She indicated that she could not leave the postal truck to do that because it contained mail. Casanova was taken by ambulance from the scene to St. Barnabas Hospital. At St. Barnabas Hospital, Casanova received diagnostic tests and was treated for his injuries. Thereafter, he was transferred to the Columbia Presbyterian Hospital for further treatment.
Among the physicians who treated plaintiff at Columbia Presbyterian Hospital was Steven Joseph Lee. Dr. Lee is a board-certified psychiatrist who works specifically with chemically addicted psychiatric patients. Dr. Lee testified that, in December 1998, he was a fourth-year resident physician in psychiatry at Columbia Presbyterian Hospital. Dr. Lee met with Casanova on December 14, 1998, and December 15, 1998. Before meeting with plaintiff, Dr. Lee reviewed Casanova's medical records, including the results of a routine urine drug screen test that had been performed on December 12, 1998, one day after plaintiff and the postal truck collided. From his review of the urinalysis, Dr. Lee learned that plaintiff had tested positive for opiates, benzodiazepine, cocaine and barbiturates. Dr. Lee discussed plaintiff's prior drug use with him. Initially, Casanova denied using cocaine. However, after Dr. Lee confronted him with the results of the urinalysis, plaintiff admitted that he used cocaine and heroin intranasally.
Dr. Lee recalled that during his first meeting with plaintiff, on December 14, 1998, he found Casanova to be experiencing heroin withdrawal. Dr. Lee had observed in Casanova's medical records that he had been prescribed 30 milligrams of methadone to be taken every eight hours for a total of 90 milligrams of methadone each day. Dr. Lee explained that a person "naive to heroin" who received a dosage of approximately 40 milligrams of methadone per day would stop breathing. However, plaintiff was receiving more than twice that amount and was breathing. Based upon the amount of methadone plaintiff was receiving, Dr. Lee concluded that plaintiff was likely underreporting, significantly, his prior drug usage. Dr. Lee stated that his conclusion was also based on plaintiff's denial that he used cocaine until he was confronted with the results of the urinalysis. Casanova's denial of his prior cocaine use signaled to Dr. Lee that plaintiff had already developed a history of concealing things about his drug usage.
After meeting with Casanova, Dr. Lee determined to reduce the amount of methadone plaintiff was receiving in order to ascertain the precise amount of methadone he needed. Dr. Lee was convinced that plaintiff's pain was not being well managed and that, although he was receiving sufficient treatment for symptoms of heroin withdrawal, he was being treated and sedated excessively for pain.
In his trial testimony, Dr. Lee conceded that he was unaware of plaintiff's mental or physical status during the hours of 1:00 p.m. or 2:00 p.m., on December 11, 1998, the approximate time and the date on which plaintiff's bicycle made contact with McDermott's postal truck. Dr. Lee also conceded that he did not know the extent of plaintiff's ability to operate a bicycle or to make observations on December 11, 1998.
Dr. Robert Maslansky, a board-certified internist with an additional certification in addiction medicine, testified on behalf of defendant as an expert in the field of addiction medicine. Dr. Maslansky described addiction medicine as the diagnosis, care and treatment of persons who are addicted to any number of a variety of drugs. Dr. Maslansky is the Medical Director of Addiction Rehabilitation Services ("ARS") at Bellevue Hospital. He explained that ARS is a comprehensive treatment program. It is comprised of three inpatient and three outpatient programs. The inpatient programs are: a) a dual diagnosis program, for patients who have major psychiatric disorders and substance abuse issues; b) an alcohol detoxification program; and c) a therapeutic community for MICA patients, that is, homeless men who are chemically addicted with psychiatric illnesses. The three outpatient programs are: 1) an alcohol program; 2) a dual diagnosis program; and 3) a methadone treatment program.
Dr. Maslansky is also an assistant professor at New York University and teaches at its affiliated Veterans Administration Hospital. Moreover, until recently, Dr. Maslansky also taught a course entitled Psychobiology of Addictive Substances at the New School for Social Research. That course dealt with the "interpsyche processes of addictive disorders;" that is, what may lead to them and how they can best be managed. In addition, the course explored the biology of the multiplicity of drugs that may have an impact on the brain and cause addictive liabilities. Dr. Maslansky has also published numerous papers and articles concerning heroin addiction: In addition to his academic endeavors, Dr. Maslansky treats patients and has served as a consultant to the Federal Bureau of Prisons, for which he designed a detoxification protocol for federal prisoners using methadone.
Dr. Maslansky was questioned at the trial about inter alia, the principal effect of heroin on the central nervous system. He stated that its principal effect on the central nervous system is relief from pain. He also indicated that it has the capacity to reduce anxieties. Dr. Maslansky explained that heroin impairs motor skills; it impairs the fine motor skills, gross motor movements and the capacity to make guarding movements in the case of some threat. Furthermore, he explained that a person's reaction times are slowed by heroin. Dr. Maslansky testified that the more heroin a person uses, the greater would be the impairment to the person's motor skills.
Dr. Maslansky also testified about the effects of cocaine. He stated that when it is absorbed into the bloodstream, cocaine impacts on the brain, and acts as a significant stimulant and excitant that causes the user to feel a sense of robust well-being, and an inviolability or sense of imperviousness to any kind of environmental threat. Dr. Maslansky explained that when cocaine and heroin are used together, their effects combine. When asked what the effect of heroin and cocaine would have on a person riding a bicycle on a city street, Dr. Maslansky stated that the effect would be dosage dependent. However, he opined that the combination of those two drugs would produce a reduction in the capacity of a person to judge a potential threat. He also indicated that the combination of the two drugs would reduce a person's motor skills in operating a bicycle in a challenging situation such as the streets of New York City. Moreover, the combination of the two drugs would make a person experience a sense of inviolability, a feeling that the person is impervious to anything that might happen, and an unawareness or reduction in awareness of the potential for a threat.
Dr. Maslansky did not treat Casanova. However, he reviewed plaintiff's medical records from St. Barnabas Hospital and from Columbia Presbyterian Hospital. Based on his review of plaintiff's medical records, Dr. Maslansky learned that Casanova reported using a half-bag of heroin per day for thirteen years. However, Dr. Maslansky found the fact that plaintiff was in heroin withdrawal one day after the incident at East 18Oth Street and Prospect Avenue to be at variance with plaintiff's claim that he used only a half-bag of heroin per day. Dr. Maslansky found that it would be unlikely that such a small amount of heroin use would produce a sufficient habit to manifest as a significant withdrawal. Therefore, Dr. Maslansky, like Dr. Lee, concluded that plaintiff, while hospitalized, was underreporting, significantly, his prior drug usage.
Furthermore, Dr. Maslansky, who observed plaintiff testify at the trial, found — based on his experience in the field of addiction medicine and heroin addiction in particular — plaintiff's account of his activities on the morning of December 11, 1998, that is, awakening, watching television for several hours and then leaving home to go shopping, without using heroin, to be inconsistent with the pattern of behavior of a daily heroin user. Dr. Maslansky explained that the compelling phenomenon experienced by a heroin user when he awakens in the morning after using heroin the day before, "is withdrawal and significant withdrawal." He stated that the user's feeling of needing to use heroin again is often "abiding and overwhelming." Consequently, the most "regular pattern" for the heroin user is to have heroin available for use in the morning or to go out and seek, buy and use heroin as quickly as possible, because the illness that results from a heroin user's lack of heroin "is formidable and very compelling." Therefore, based upon Dr. Maslansky's review of plaintiff's medical records, including the toxicologic findings that were made at Columbia Presbyterian Hospital, his years of experience with many patients and his knowledge of plaintiff's thirteen years of heroin use, Dr. Maslansky concluded that it would be "implausible" for plaintiff to have functioned on December 11, 1998, without impairment.
In addition to the testimony presented by witnesses in the courtroom, the parties read into the trial record excerpts from the sworn deposition testimony given by Lisa Nunez ("Nunez"), an eyewitness to the December 11, 1998, collision between plaintiff and the postal truck. Although she was summoned to the trial via subpoena, Nunez failed to appear.
From the excerpts of the testimony given by Nunez at her deposition, the Court learned that she is "legally blind" and receives Supplemental Security Income ("SSI") benefits as a result of her status. She explained that she needs a cornea transplant because her corneas are severely scarred. Notwithstanding that fact, Nunez stated that she can see sufficiently well to travel on her own, to distinguish traffic control light colors as they turn from green to red and to see oncoming vehicular traffic. No evidence was presented at the trial to controvert those claims.
Nunez recalled at her deposition, that, on December 11, 1998, she was walking along East 180th Street heading toward Prospect Avenue, in the same direction in which plaintiff was traveling on East 180th Street. When she reached the intersection of East 180th Street and Prospect Avenue, she had to wait to cross the street "because I did not have the light." Nunez explained that when she reached the corner, she stopped and observed that the traffic control light was red and, thus, she did not have the right-of-way. As she waited at the corner, Nunez observed the postal truck being driven by McDermott. Nunez stated that McDermott was proceeding "carefully" in attempting to make a turn at the corner. She recalled that other cars were behind McDermott's truck waiting to turn. Nunez testified that before McDermott was able to make her turn, plaintiff came "zooming." She recalled that plaintiff was going "pretty fast." "He was speeding on that bike, you know, and he just like zoomed between the two cars." Nunez stated that Casanova did not pause. It appeared to her that plaintiff was attempting to go around a bus and the postal truck. However, he was unsuccessful in negotiating that maneuver and, according to Nunez, "he caught the corner of the postal truck." Nunez estimated that she stood at a distance of between seven feet and ten feet from plaintiff's point of impact with the postal truck. She described the point of impact as being ". . . right in front of my face." Nunez also recalled that plaintiff came into contact with the postal truck while its turn indicator light was on, but before the postal truck's driver had made a turn. Nunez did not observe the postal truck's driver do anything to cause the accident.
CONCLUSIONS OF LAW
Pursuant to 28 U.S.C. § 1346(b)(1), tort liability, based upon the negligence or wrongful act or omission of an employee of the United States, is governed by the laws of the state where the alleged conduct occurred. See Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 714-715 (1992). In the instant case, the relevant events occurred in the State of New York; therefore, New York law governs this case.
Under New York law, a plaintiff must establish three elements by a preponderance of the evidence in order to prevail in a negligence action. Those elements are: 1) the existence of a duty on defendant's part as to plaintiff; 2) a breach of this duty; and 3) injury to the plaintiff as a result thereof. See Solomon v. City of New York, 66 N.Y.S.2d 1026, 1027, 499 N.Y.S.2d 392 (1985); Akins v. Glens Falls City School District, 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 648 (1981).
The duty owed by a motorist to a bicyclist like plaintiff is to exercise due care in the operation of the motor vehicle. "Due care is that care which is exercised by reasonably prudent drivers. It is not that degree of care which guarantees that a driver will avoid any accident no matter what the circumstances might be." Russell v. Adduci, 140 A.D.2d 844, 845-846, 528 N.Y.S.2d 232, 234 (App.Div. 3rd Dept. 1988).
In the case at bar, plaintiff urges that McDermott be found to have failed to exercise reasonable care under the circumstances and thereby to have breached the duty of care she owed to him. However, the Court finds that the evidence adduced at the trial, including the uncontroverted deposition testimony of the non-party eyewitness, Nunez, establishes that McDermott acted reasonably on December 11, 1998, when the traffic control signal at which she had stopped, turned green and she proceeded slowly into the intersection at East 180th Street and Prospect Avenue in order to effect a left turn. Both McDermott and Nunez testified that before the truck was able to turn, plaintiff came into contact with it. Nunez, who is a disinterested witness, observed that plaintiff was moving at a rapid rate of speed on his bicycle and, further, that in contravention of New York Vehicle and Traffic Law § 1110(a), he disregarded the traffic control signal which required that he stop at the intersection. She recalled that Casanova attempted to maneuver his bicycle around the postal truck and a bus, but was unsuccessful in doing so. As a result, his bicycle hit the postal truck and he fell and was injured. The Court finds the testimony given by McDermott, at the trial, and the excerpts from the Nunez deposition transcripts that were read at the trial to be more credible than the testimony given by plaintiff.
New York Vehicle and Traffic Law § 1110(a), in its most pertinent part, provides that "[e]very person shall obey the instructions of any official control device applicable to him. . . ."
Portions of Casanova's trial testimony were inconsistent with testimony he gave during his deposition. For example, plaintiff testified, at the trial, that sleepiness was not a symptom of heroin withdrawal that he experienced. That testimony conflicted with his deposition testimony on that same issue. Furthermore, plaintiff testified at the trial that he checked the traffic control light after looking at the postal truck as it traveled at a moderate speed along Prospect Avenue and, thereafter, adjusted the speed at which he was traveling on his bicycle to ensure that he would reach the intersection of East 180th Street and Prospect Avenue when the traffic control light turned green, in his favor. However, during his deposition, Casanova testified that he did not check the traffic control light again after looking at the postal truck as it traveled along Prospect Avenue. In addition, the record evidence establishes that plaintiff was not candid about his drug usage when he was interviewed by hospital personnel following the incident that occasioned the instant litigation. Drs. Lee and Maslansky, both of whom have extensive experience interviewing and treating substance abusers, concluded that Casanova deliberately and significantly underreported his drug usage. In fact, plaintiff failed to acknowledge that he had ingested cocaine until he was confronted by Dr. Lee with objective evidence of his cocaine use, the results of a urinalysis.
As a result of plaintiff's shifting testimony and his lack of candor, while seeking medical treatment following the incident on December 11, 1998, the Court finds that his testimony concerning the events of December 11, 1998, is unworthy of belief. Therefore, the Court credits the testimony of McDermott that she: (a) proceeded through the intersection at East 180th Street and Prospect Avenue when the traffic control light turned green; (b) looked both ways along East 180th Street; and (c) did not see plaintiff before he hit her truck with his bicycle. Her conduct on December 11, 1998, was reasonable and was not negligent, despite the fact that she did not see plaintiff when she surveyed East 180th Street after driving her truck into the intersection and while she waited to make a turn. See Kash v. Kroeger, 222 A.D.2d 1101, 1102, 635 N.Y.S.2d 852, 853 (App.Div. 4th Dep't 1995).
Based on the above, the Court finds that the defendant is not liable to plaintiff for any damages he suffered as a result of the events that occurred on December 11, 1998. Accordingly, the Clerk of Court is directed to enter judgment for the defendant.