A pedestrian hit by a mail truck while he was trying to cross the street could not pursue a negligence claim against the federal government given the absence of evidence showing that his injuries would not have occurred “but for” the driver’s breach of a duty of care, a U.S. magistrate judge has decided.

Plaintiff Carlos Garcia sustained serious injuries when he stepped from between two parked cars in Springfield, directly into the path of a U.S. Postal Service vehicle driven by Sean O’Donnell. The government moved for summary judgment on the plaintiff’s negligence claim brought pursuant to the Federal Tort Claims Act. In its motion, the government relied in part on the testimony of an accident reconstruction expert who opined that the driver could not have avoided the accident in the estimated 1.5 seconds he had to react to the plaintiff entering the travel lane.

In granting the government’s motion, Judge Katherine A. Robertson first rejected the plaintiff’s contention that the expert’s testimony should not be considered because it was irrelevant and unreliable.

“Plaintiff’s primary argument is that O’Donnell had a duty to slow down in anticipation of pedestrians on the stretch of Worthington Street where the accident occurred,” Robertson wrote. “[The government’s expert] explicitly considered whether the collision could have been avoided if O’Donnell had been driving at a significantly reduced speed and determined that it could not.”

The judge proceeded to find that there was no genuine issue of material fact on the element of but-for causation given the expert’s testimony and evidence that speed was not a factor.

“No other witnesses have testified that Plaintiff would have been visible to O’Donnell before he stepped from between the two parked cars,” Robertson wrote. “Thus, Plaintiff’s claim that the accident could have been avoided if O’Donnell had been more attentive is speculative and insufficient to defeat Defendant’s motion for summary judgment.”

The 13-page decision is Garcia v. U.S., Lawyers Weekly No. 02-306-21. The full text of the ruling can be found here.

Questionable call?

Boston personal injury attorney James A. Swartz said he was not surprised by the judge’s finding that the testimony by the government’s expert was reliable and admissible.

“Reliability was really the focus in the end,” Swartz said. “The judge concluded that the opinions expressed were reliable based on facts in evidence, and also properly based on information and facts not in evidence, which experts are typically allowed to rely upon in forming their opinions.”

On the other hand, Swartz said, he was “somewhat surprised” that the judge granted the government’s motion for summary judgment.

It is unusual, even under these circumstances, for judges to take a negligence case from a jury,” Swartz said. “There are a number of facts here favorable to the plaintiff — such as the [driver] being aware that pedestrians often crossed the street in that area outside of crosswalks, that the [driver] had difficulty seeing pedestrians on the sidewalks because it was somewhat dark, and that he saw the plaintiff step into the travel lane.”

According to Cambridge personal injury attorney Karen Piso Nadeau, the plaintiff has grounds for appeal.
“From the plaintiff’s perspective, it’s a shocking decision for a personal injury case,” said Nadeau, who believes the judge went astray by treating the expert’s opinion as fact.

“A jury at trial gives the expert whatever weight they want. They can choose to accept that expert’s opinion or completely reject it,” Nadeau said. “It seems like the court is unfairly depriving the injured plaintiff his day in court by essentially taking this expert’s opinion as established fact for purposes of summary judgment. That’s where I think it goes wrong. The standard should be that the evidence is viewed in the light most favorable to the non moving party.”

But Boston personal injury attorney Jeffrey N. Catalano said he thought Robertson was correct in allowing the opinions of the government’s expert and that the decision to grant the government summary judgment was not surprising, particularly since the case was in federal court.

Source: Mass Lawyers Weekly