2020 WL 1159396

United States District Court, W.D. Oklahoma.
Starla KITTLES, Plaintiff,
v.
HARAV, L.L.C., Defendant.
Case No. CIV-18-720-D
|
Signed 03/10/2020
Attorneys and Law Firms
Clifton D. Naifeh, Norman, OK, for Plaintiff.
Mehry Taremi, Daniel K. Jones, Mills & Jones PLLC, Norman, OK, Michael Woodson, Edmonds Cole Law Firm, Oklahoma City, OK, for Defendant.

ORDER
TIMOTHY D. DeGIUSTI, Chief United States District Judge
*1 Before the Court is Defendant’s Motion for Partial Summary Judgment [Doc. No. 40], filed pursuant to FED. R. CIV. P. 56. Plaintiff responded in opposition [Doc. No. 62], and Defendant replied [Doc. No. 69]. The matter is fully briefed and at issue.

Defendant moves for summary judgment on Plaintiff’s negligent hiring, training, supervision, and entrustment claims. Defendant also seeks entry of judgment as a matter of law on Plaintiff’s negligence per se claims that are premised on certain provisions of Oklahoma’s Highway Safety Code, OKLA. STAT. tit. 47, ch. 11. Finally, Defendant asks the Court to dismiss Plaintiff’s request for punitive damages. Because there are disputed facts material to most of these issues, the Court denies in part and grants in part Defendant’s Partial Motion for Summary Judgment [Doc. No. 40].1

BACKGROUND
This case arises out of a motor vehicle accident on February 7, 2017, at approximately 1:52 p.m., on Interstate 35, near the Lindsey Street exit in Norman, Oklahoma. The accident, which occurred in a construction zone, involved a 2007 Maroon commercial truck driven by an unknown driver and a 2008 Toyota RAV4 driven by Plaintiff. Plaintiff alleges that Defendant, through an unnamed agent, servant, or employee, was driving a tractor-trailer northbound on I-35 near the Lindsey Street exit when the driver “negligently and recklessly changed lanes,” causing a collision with Plaintiff’s vehicle. Pet. at ¶ 3. Although Defendant admits that on February 7, 2017, at approximately 1:52 p.m., Ronald Powell was operating a tractor-trailer in the course and scope of his agency with Defendant, Defendant does not admit that its truck or Mr. Powell were involved in the alleged accident. Def.’s Mot. for Summary J. at 5, 8–9 [Doc. No. 40]. Rather, Defendant asserts that “if the jury finds that its 2007 Maroon semi was involved in an accident with [Plaintiff], then Ronald Powell was its agent and was acting in the course and scope of his agency.” Id. at 9 (emphasis added).

STANDARD OF DECISION
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (quoting FED. R. CIV. P. 56(a)). A dispute is genuine “if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way,” and it is material “if under the substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). At the summary judgment stage, the Court views the facts and all reasonable inferences in the light most favorable to the nonmoving party. Williams v. FedEx Corp. Services, 849 F.3d 889, 896 (10th Cir. 2017).

*2 “The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670–71 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the movant meets that burden, the nonmovant must “go beyond the pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671; see also FED. R. CIV. P. 56(c)(1)(A). To accomplish this, the nonmovant must identify facts by reference to the pleadings, depositions, other discovery materials, exhibits or affidavits. Id. The Court is not limited to the cited materials, but rather may consider other materials in the record. FED. R. CIV. P. 56(c)(3). The Court’s inquiry is whether the facts and evidence of record present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Unsupported conclusory allegations are not sufficient to defeat summary judgment. Matthiesen v. Banc One Mortg. Corp., 173 F.3d 1242, 1247 (10th Cir. 1999).

DISCUSSION

I. Defendant cannot stipulate that Mr. Powell was acting within the scope of his employment and also argue that Mr. Powell was not acting at all. Accordingly, Plaintiff’s negligent hiring, training, and supervision claim survives summary judgment.
Plaintiff alleges that the negligence of Defendant’s unnamed agent caused the accident and that Defendant is vicariously liable for Plaintiff’s injuries under the theory of respondeat superior. Additionally, Plaintiff alleges that Defendant is directly liable under a negligent training, hiring, and supervision cause of action. Defendant asserts that Plaintiff’s negligent hiring, training, and supervision claim is superfluous and should be summarily adjudicated since Defendant “admits that if the jury finds that its 2007 Maroon semi was involved in an accident with [Plaintiff], then Ronald Powell was its agent and was acting in the course and scope of his agency.” Def.’s Mot. for Summary J. at 16 (emphasis added) [Doc. No. 40].

In support of its argument, Defendant relies on the seminal case of Jordan v. Cates, 935 P.2d 289, 294 (Okla. 1997). In Jordan, a store visitor was involved in an altercation with an employee of the store. Id. at 291. The visitor alleged that during the altercation the employee assaulted and battered him. Id. He sought to recover against the store for its vicarious liability under the theory of respondeat superior. Id. Additionally, he brought a separate claim directly against the store for negligent hiring and retention of the employee. Id.

Recognizing the required elements to confer respondeat superior liability, the employer stipulated that the altercation occurred while its employee was acting within the scope of his employment and that it would be liable for any damages awarded by the jury. Id. at 292. In light of this admission, the trial court granted summary judgment to the employer on the negligent hiring and retention claim. Id. The Oklahoma Supreme Court upheld the grant of summary judgment, concluding that:
[T]he theory of negligent hiring and retention is available in a nonvicarious liability case or in a case where vicarious liability has not been established. In the case at bar, vicarious liability has been established through stipulation…. Our holding today is limited to those situations where the employer stipulates that liability, if any, would be under the respondeat superior doctrine, thereby making any other theory for imposing liability on the employer unnecessary and superfluous. Because vicarious liability can include liability for punitive damages, the theory of negligent hiring and retention imposes no further liability on employer.
*3 Id. at 293.

Two years later, the Oklahoma Supreme Court reiterated this limitation on employer liability: while “[e]mployers may be held liable for negligence in hiring, supervising or retaining an employee[,] … th[is] theory of recovery is available if vicarious liability is not established.” N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla. 1999).

Thus, Defendant is correct that a separate negligent hiring, training, and supervision claim would be superfluous in a case where vicarious liability has been established through stipulation. Here, however, Defendant does not stipulate to vicarious liability. Although Defendant admits that on February 7, 2017, at approximately 1:52 p.m., Ronald Powell was operating a tractor-trailer in the course and scope of his agency with Defendant, Defendant does not admit that its truck or Mr. Powell were involved in the alleged accident. Def.’s Mot. for Summary J. at 5, 8–9 [Doc. No. 40]. Rather, Defendant asserts that “if the jury finds that its 2007 Maroon semi was involved in an accident with [Plaintiff], then Ronald Powell was its agent and was acting in the course and scope of his agency.” Id. at 9 (emphasis added).

Simply put, Defendant cannot have it both ways. It cannot stipulate that Mr. Powell was acting within the scope of his employment but also argue that Mr. Powell was not acting at all.

Because the underlying question of fact remains regarding the identity of the driver and the vehicle involved in the accident, summary judgment on this issue is inappropriate.

II. Because proximate cause is in dispute and must be submitted to a trier of fact, Plaintiff’s negligent entrustment claim survives summary judgment.
Defendant asserts that there is no evidence upon which a jury could reasonably determine that Defendant negligently entrusted Mr. Powell with a vehicle and that, consequently, Plaintiff’s negligent entrustment claim fails as a matter of law. Before the Court can address Defendant’s argument, it must be satisfied that there are no material facts in dispute concerning the negligence of Defendant’s agent. A “necessary element of a claim for negligent entrustment” is that Plaintiff’s injury “result[ed] from the driver’s careless and reckless operation of the vehicle.” Clark v. Turner, 99 P.3d 736, 743 (Okla. Civ. App. 2004).

With negligent entrustment claims, it is “the negligence of the driver that provides the causal connection necessary to establish liability in tort between the negligence of the entrusting owner and injuries sustained by the plaintiff.” Id. at 743–44. In other words, “liability is not derivative”—it is dependent. Id. at 744. As the Oklahoma Supreme Court explained in Anthony v. Covington, 100 P.2d 461 (Okla. 1940), “if an accident occurs in which the driver is not negligent, there is no causal connection between the owner’s precedent negligence and the injury itself.” Thus, where the identity of the driver is disputed, a material issue of fact exists as to Plaintiff’s negligent entrustment claim.

*4 Again, Defendant disputes whether Mr. Powell was involved in the accident. The negligence of Mr. Powell is a threshold issue that the Court must decide before it can evaluate Plaintiff’s negligent entrustment claim. Because the identity—and consequently the negligence—of the driver remains for a jury to determine, the Court cannot reach a conclusion on Plaintiff’s negligent entrustment claim. Thus, it survives summary judgment.

III. Plaintiff’s negligence per se claims premised on §§ 11-801 and 11-901b are subsumed by her common law respondeat superior negligence claim.
Defendant also seeks summary judgment on Plaintiff’s negligence per se claims that rely on OKLA. STAT. tit. 47, §§ 11-801 and 11-901b. Under the negligence per se doctrine, statutory standards of care replace parallel common law duties of care. Howard v. Zimmer, Inc., 299 P.3d 463, 467 (Okla. 2013). The violation of the statute constitutes “negligence per se.” Id.

To establish negligence per se, a plaintiff must show that the statutory violation caused the claimed injury; that the claimed injury was the type of injury the statute envisioned protecting; and that the injured party is among the class the statute intended to protect. Id. “Liability per se enables plaintiffs to establish as a matter of law that the defendant’s conduct constituted a breach of duty in a negligence action, so that only causation and damages need be proven.” Id.

Two “rules-of-the-road” statutes relied on by Plaintiff “do not impose any positive objective standards nor do they prescribe any greater or lesser degree of care than that required of a driver under the prevailing rules at common law.” Wade v. Reimer, 359 P.2d 1071, 1073 (Okla. 1961) (concluding that an additional charge on negligence per se, when applied to the statute under discussion, would have been at most redundant). The language in the statute at issue in Wade is identical to the language in OKLA. STAT. tit. 47, § 11-801(a).2

In Smith v. Barker, 419 P.3d 327, 333 (Okla. Civ. App. 2017), the Oklahoma Court of Civil Appeals concluded that the statutory duties imposed upon the operator of a vehicle under several rules-of-the-road statutes, including OKLA. STAT. tit. 47, § 901b (devoting full time and attention to driving), were “undefined or defined only in abstract general terms.” Smith, 419 P.3d at 333. Accordingly, Plaintiff’s negligence per se claims premised on §§ 11-801 and 11-901b are subsumed by her common law respondeat superior negligence claim.

The Court finds that Plaintiff’s negligence per se claim premised on OKLA. STAT. tit. 47, § 11-901 (reckless driving), however, survives summary judgment. The Tenth Circuit in Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1222 (10th Cir. 2008), upheld a negligence per se instruction under the first portion of § 11-901(A), which states “[i]t shall be deemed reckless driving for any person to drive a motor vehicle in a careless or wanton manner without regard for the safety of persons or property.” Henning, 530 F.3d at 1222; see also OKLA. STAT. tit. 47, § 11-901(A).3 Because the identity of the driver and the vehicle are disputed, summary judgment on this claim is inappropriate.

IV. Plaintiff’s claim for punitive damages survives summary judgment.
*5 “Under Oklahoma law, an employer may be held vicariously liable for the punitive damages arising out of an employee’s act if: 1) a master/servant relationship exists between the employer and employee; and 2) the act was committed while the employee was acting within the scope of employment.” Bierman v. Aramark Refreshment Services, Inc., 198 P.3d 877, 884 (Okla. 2008). Here, Defendant admits that a master/servant relationship existed between itself and Mr. Powell, and that if a jury finds Mr. Powell liable, he was acting within the scope of his employment. Punitive damages may be assessed against an employer for an employee’s act under the doctrine of respondeat superior. Id. Further, there is no requirement that an employer participate or ratify an employee’s conduct to be liable for punitive damages arising from the doctrine of respondeat superior. Id. Plaintiff’s respondeat superior claim survives summary judgment, and thus, Plaintiff’s claim for punitive damages under that doctrine survives as well.

CONCLUSION
Accordingly, Defendant’s Motion for Partial Summary Judgment [Doc. No. 40] is GRANTED in part and DENIED in part. Defendant is entitled to summary judgment on Plaintiff’s negligence per se claims premised on OKLA. STAT. tit. 47, §§ 11-801 and 11-901b. Plaintiff’s remaining claims survive summary judgment.

IT IS SO ORDERED this 10th day of March 2020.

All Citations
Slip Copy, 2020 WL 1159396

Footnotes

1
The Court does not reach the parties’ objections to testimony and evidence in support and in opposition of the motion as they do not bear on the Court’s analysis.

2
A vehicle shall be operated “at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and any other conditions then existing” and “[n]o person shall drive … at a speed greater than will permit the driver to bring it to a stop within the assured clear distance ahead.” OKLA. STAT. tit. 47, § 11-801(a); see also Wade, 359 P.2d at 1073.

3
A negligence per se claim premised on the latter portion of § 11-901(A), which relies on the conditions outlined in § 11-801, does not survive summary judgment for the same reasons that a claim premised on § 11-801 does not.

2020 WL 1157368

United States District Court, N.D. Illinois, Eastern Division.
Jacob LAZCANO, Plaintiff,
v.
The UNITED STATES of America, Defendant.
No. 17-cv-02969
|
Signed 03/10/2020
Attorneys and Law Firms
Benjamin B. Kelly, Patrick Michael Crowley, Daniel Francis Gallagher, The Vrdolyak Law Group, LLC, Chicago, IL, for Plaintiff.
AUSA, Kristen Elise Rau, Ernest Yi Ling, United States Attorney’s Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER
Andrea R. Wood, United States District Judge
*1 Plaintiff Jacob Lazcano was riding his bicycle down a Chicago street on July 3, 2014 when he collided with a United States Postal Service (“USPS”) truck. Lazcano subsequently sued Defendant United States of America, alleging that the accident occurred because its employee, the driver of the USPS truck, acted negligently. The parties tried Lazcano’s claim in a bench trial. For the reasons set forth below, the Court now returns its verdict in favor of the United States.

TRIAL EVIDENCE
This Court held a three-day bench trial on Lazcano’s negligence claim. The testimony and evidence presented at trial is summarized as follows.

I. Lazcano’s Testimony

A. Lazcano’s Background
Lazcano took the stand at trial and testified that he learned how to ride a bicycle as a child—when he was approximately nine or ten years old. At the time of the accident, Lazcano was seventeen years old. Because Lazcano did not have a car, he relied on his bike for transportation and rode it four to five times a week, weather permitting. Lazcano has a fixed-gear bike, which does not have brakes; instead, the speed of the pedals corresponds with the speed of the wheels, and the rider uses the strength of his legs to decrease the speed of pedals and come to a stop.1

B. The Accident
On the afternoon of July 3, 2014, Lazcano made plans to go to a friend’s house to play video games. The weather was sunny; a “typical summer day.” Lazcano’s friend’s house is located at the intersection of Pulaski Road and Lawrence Avenue in Chicago. Prior to this occasion, Lazcano had ridden his bike to this friend’s house approximately four times per week that summer and was well-acquainted with the route. Lazcano rode his fixed-gear bike and did not put on a helmet. En route to his friend’s house, Lazcano rode his bike along Kinzie Street, which has a designated bike lane. He then turned onto Lawrence and rode west. Lawrence is a two-way street, running east and west. The street includes a driving lane, a lane for parked cars, and a bike lane in between. Lazcano estimated that the bike lane is approximately four feet wide. Lazcano intended to turn off Lawrence onto Harding Avenue, one street before Pulaski.

Around 3:00 p.m., Lazcano approached the intersection of Lawrence and Kimball Avenue Traffic was heavy, and Lazcano observed that the traffic light at the intersection was about to turn red, so he slowed down. Lazcano estimates that he was riding at approximately 12 to 15 miles per hour in the bike lane, and he did not veer from the lane at any point. Meanwhile, the USPS truck, which was in the driving lane, approached the intersection and came to a stop. Lazcano intended to ride past the USPS truck and got within six inches of the back of the truck. But suddenly, the truck’s rear right tire struck his left handlebar. Lazcano’s bike was crushed under the tire, and the force of the impact threw him off the bike “to the side and forward.” Lazcano landed on the ground on his buttocks and lower back. Lazcano attempted to stand up slowly, while passersby who had witnessed the collision told him to sit back down and informed him that they would call an ambulance.

*2 Eventually, police officers and an ambulance arrived at the scene. When confronted with the ambulance report of the accident at trial, Lazcano acknowledged that it indicated that he “denie[d] pain” in his neck, upper back, and lower back. (Trial Pl.’s Ex. 1.) However, Lazcano testified that both his neck and back hurt on the way to the hospital. Lazcano went to the hospital emergency room (“ER”). Approximately an hour later, Lazcano was discharged from the ER and went home.

C. Aftermath
The following day, Lazcano recalled feeling sore, especially in the region of his back. Over the next few days, he avoided most activities, as he no longer had his bike and still felt a great deal of pain. Approximately one week later, on July 11, 2014, Lazcano sought medical treatment and underwent approximately six to eight weeks of physical therapy. Initially, Lazcano told the physical therapist that he did not have neck and back pain, but he later expressed feeling pain in those areas. The physical therapist instructed Lazcano to perform certain exercises that would ease his back pain and applied tape and electronic massage therapy to Lazcano’s back. According to Lazcano, the physical therapy was helpful but only temporarily eased the pain. Lazcano admitted to skipping three physical therapy appointments.

In early 2015, Lazcano sought treatment from Dr. Intesar Hussain. Dr. Hussain recommended an MRI exam and a series of steroid injections into Lazcano’s spine. In March 2015, after three injection appointments, Lazcano informed Dr. Hussain that the injections only provided temporary relief. Dr. Hussain replied that Lazcano should give it some time.

Then, in June 2015, Lazcano was involved in another accident while riding his bike to work. This time, Lazcano was struck by a truck that made a turn without properly signaling. Again, Lazcano was riding a fixed-gear bike with no brake and without wearing a helmet. He suffered injuries to his neck and shoulder but not his back. Lazcano was again transported to the ER in an ambulance. After this second accident, Lazcano sought and received treatment for his neck and shoulder pain. Lazcano later sued the truck driver and obtained a favorable settlement.

Meanwhile, Lazcano continued undergoing medical treatment for his back. Eventually, Lazcano sought treatment from Dr. Ronald Michael instead of Dr. Hussain. At trial, Lazcano could not recall who referred him to Dr. Michael, but he previously testified at his deposition that it was his attorneys at the Vrdolyak law firm, who represent him in this action. Dr. Michael took x-rays and conducted an additional MRI exam. He then prescribed more injections for Lazcano, which lasted another eight to nine months. Eventually, in late 2017, Lazcano stopped seeing Dr. Michael, as the pain in his back was largely resolved at that point. But Lazcano testified that before the pain abated, he had to refrain from standing for long periods of time or else he would experience back pain. For a while, he avoided riding his bike or lifting items heavier than 50 pounds, as those activities exacerbated his symptoms. On cross-examination, however, Lazcano admitted that he worked as a mover before and after the July 2014 accident, and his injuries did not prevent him from continuing to do so. Indeed, Lazcano admitted at trial that he felt “great.”

II. Rishko’s Testimony
Lazcano also called the USPS driver, Volodymyr Rishko, as a witness at trial.

Rishko testified that he drives a tractor trailer truck for USPS, which has a single axle and is 30 feet long and 10 feet wide. He has been a USPS driver since 2000, although he has been a commercial truck driver in the United States since 1993. During his employment with USPS, he has been involved in four accidents with other individuals, including one other accident with a man riding his bike. Because of this history—and his concerns about false accusations and frivolous lawsuits—Rishko purchased and mounted a camera on the dashboard of his USPS truck (the “dash camera”). (Trial Def.’s Exs. 2, 3.)

*3 According to Rishko, on July 3, 2014, he was driving his USPS truck westbound on Lawrence, along a route that he takes on a weekly basis. The route requires him to drive along Lawrence repeatedly for short distances—turning off of and then back onto Lawrence. At the time of the accident, Rishko was at a spot on the route that required him to drive straight along Lawrence for approximately 1.5 miles. Rishko knew that there was a bike lane on Lawrence to the right of the driving lane but it was a shared lane, not designated expressly and solely for bikes. As he drove along Lawrence, Rishko periodically checked his mirrors for bikes—for example, he recalls seeing a bike pass his truck shortly before the accident—but his focus was mostly directed towards the road in front of him. He was listening to the radio while driving, although he claims he was not paying attention to it. Rishko also testified that he was not driving faster than the speed limit.

As Rishko approached the intersection of Lawrence and Kimball, the traffic light turned from green to yellow to red. Rishko was looking straight ahead at the intersection and did not check his mirrors while he was braking. As he came to a stop, Rishko heard a sound that he analogized to “when [a] tractor is crossing [a] crack on the road.” He then noticed a man sitting at a nearby bus stop pointing at his truck. Concerned that something had happened, Rishko parked the truck and got out to investigate. As he began to walk towards the back of the truck, Rishko observed a police car across the street turn on its lights. Rishko stopped walking and waited for the police car to approach, then told the police officer that he had a dash camera in his truck. The police officer asked to see the dash camera video footage, and Rishko complied. The police officer then instructed Rishko to move the truck, as it was impeding traffic. Before moving his truck, Rishko took several photos of the back of the truck to show its location in the driving lane. (Trial Def. Ex. 2.) He eventually submitted the photos to his employer, the USPS, as documentation of the accident. By Rishko’s estimate, the truck was stopped approximately 40 feet away from the point of impact with Lazcano’s bike.

At trial, the United States introduced both the video footage from the dash camera and the photos taken by Rishko. (Def.’s Ex. 3.) The dash camera video depicts Rishko driving straight along Lawrence. At one point, the bike he described in his testimony passes the truck in the bike lane on the right. The video also depicts a parking lane with numerous parked cars to the right of the driving lane. As Rishko approaches the intersection of Kimball and Lawrence, the traffic light changes, and the silver car directly in front of Rishko’s truck displays its brake lights. Rishko then brakes and comes to a complete stop behind the silver car. At no point does the video show Rishko making any turns or swerves. The photos taken by Rishko similarly portray the tires of his USPS truck facing directly forward. Rishko acknowledged on cross-examination that the front and back tires of the truck did not align perfectly with the lane markings on the pavement, but he explained that, in his opinion, the lane markings are slightly crooked because the road incorporates a left-turn lane at the intersection.

III. Barrette’s Expert Testimony
The United States called Roger Barrette, an accident reconstructionist and former police officer, as an expert witness. Barrette testified that he reviewed the related police reports; transcripts from the depositions of Lazcano, Rishko, two other USPS employees, and Lazcano’s friend Omar Espinoza; the dash camera video footage; and Rishko’s photos. Armed with this information, Barrette personally visited the site of the accident on August 5, 2018, approximately four years later. After comparing the dash camera video footage and photos to the pavement, Barrette concluded that the gouges, marks, and cracks in the pavement were the same; in other words, the road had not been repaved or otherwise altered since the accident occurred. Barrette then used survey equipment and took measurements of the gouges and marks to gather additional information for his analysis.

*4 Barrette confirmed Rishko’s statement that the bike lane on Lawrence is, in fact, a shared bike lane. He specifically testified that tire tracks and other marks on the pavement illustrate that vehicles regularly drive in the bike lane as well as the driving lane. He also explained that the crooked lane marking described by Rishko reflects where the lane splits into a left-turn lane and a straight-ahead lane. All traffic—including bikes—are required to move slightly to the right to accommodate the left-turn lane. Barrette then reconstructed the accident and determined the following sequence of events that led to the collision: The USPS truck was traveling westbound on Lawrence at approximately 14 miles per hour. As it approached the area where the lane diverges, the left side of the truck was 1.9 feet away from the dashed center line between eastbound and westbound traffic, and the right side of the truck was 3.9 feet away from the solid white line on the right side of the lane. The truck then moved slightly to the right to stay out of the left turn lane and continue straight through the intersection. At that time, Lazcano approached from the rear and moved into the 3.9 feet between the right side of the truck and the solid white line on the pavement. Lazcano was moving faster than the truck and tried to navigate between the truck and a limousine that was parked on the side of the road. As he passed the leading axle of the USPS truck tractor trailer—the second axle from the rear of the trailer—his handlebars made contact with the tire, causing him to lose control of his bike. Lazcano then flipped over the handlebars of the bike onto the pavement.

IV. Dr. Deutsch’s Expert Testimony
The United States also called as an expert witness Dr. Harel Deutsch, a board-certified neurosurgeon with specialized knowledge about pathology of the spine. Dr. Deutsch personally performs approximately 400 spinal surgeries every year. Dr. Deutsch reviewed Lazcano’s multiple MRI exam results, his hospital and physical therapy records, the accident report, various other medical records, Lazcano’s deposition transcript, and Dr. Michael’s deposition transcript. After his review, Dr. Deutsch disputed the conclusion of Lazcano’s treating physicians that Lazcano may have suffered a disc herniation or other similar trauma. Dr. Deutsch testified that, in his expert opinion, Lazcano at most experienced a cervical or lumbar strain from the accident, which he characterized as minor injuries. As a result, the vast majority of Lazcano’s physical therapy treatments and all the spinal injections were medically unnecessary and even inappropriate. Dr. Deutsch criticized other aspects of Dr. Michael’s treatment of Lazcano’s injuries as well.2 For example, Dr. Deutsch pointed out that the spinal injections were performed without the use of a fluoroscopy, a technique that provides continuous x-ray images throughout a procedure. In Dr. Deutsch’s opinion, the standard of care requires use of a fluoroscopy when administering spinal injections to ensure that the steroid is injected into the proper location. In addition, Dr. Deutsch pointed out that the spinal injections were administered at the facet joint, which would not be the proper site even if Lazcano did have a disc herniation. Dr. Deutsch further opined that Lazcano does not have an increased risk of injury or physical harm as a result of the accident—for example, he is not predisposed to premature aging or future degeneration.

DISCUSSION
The Court has considered the evidence presented, including the testimony of the above witnesses and the exhibits submitted by the parties. Based upon that evidence, the Court enters the following conclusions of law and findings of fact pursuant to Federal Rule of Civil Procedure 52.

I. Conclusions of Law
In the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1) & 2671–80, “Congress waived the United States’s sovereign immunity for suits brought by persons injured by the negligence of federal employees acting within the scope of their employment.” Furry v. United States, 712 F.3d 988, 992 (7th Cir. 2013). The United States does not dispute that Rishko is a federal employee who, at all relevant times, was acting within the scope of his employment with the USPS. The “law of the place where the act or omission occurred” governs FTCA claims, 28 U.S.C. § 1346(b)(1), so the Court applies Illinois law here. See Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001). To succeed on a negligence claim in Illinois, a plaintiff must prove by a preponderance of the evidence “that the defendant owed a duty to the plaintiff, that defendant breached that duty, and that the breach was the proximate cause of the plaintiff’s injuries.” Furry, 712 F.3d at 992 (citation and internal quotation marks omitted). If the defendant acted negligently, then the Court must also consider whether the plaintiff acted negligently, because Illinois limits a plaintiff’s recovery in the event that he is contributorily negligent. 735 ILCS 5/2-1116(c). If a plaintiff is more than 50 percent at fault for the accident, then he cannot recover anything, even if the defendant in fact acted negligently. Id.; see also Knights v. United States, 203 F. Supp. 3d 916, 927 (N.D. Ill. 2016).

*5 The United States does not dispute that its employee, Rishko, had “a duty to exercise reasonable care in the operation of his vehicle and to have his vehicle under such control as would enable him to avoid collision with other vehicles or pedestrians.” Furry, 712 F.3d at 992 (citation, internal quotation marks, and alterations omitted). Accordingly, the issues presented for resolution at the trial were breach, proximate cause, contributory negligence, and damages.

II. Findings of Fact
The Court finds that Lazcano failed to present credible evidence to show that Rishko breached his duty of care by driving negligently at the time of the accident. First, the Court cannot conclude that Rishko exceeded the speed limit. Rishko testified that as he approached the intersection, the traffic light changed from green to yellow to red, and he accordingly applied the brakes and came to a stop. The Court finds Rishko’s testimony at the trial to be credible, especially considering that it was confirmed by the dash camera video footage, which shows the truck slowing down at a comparable rate to the silver car in front of it. Barrette similarly testified that his reconstruction of the accident indicated the USPS truck was moving at a mere 14 miles per hour when it collided with Lazcano.

Lazcano contends that the handlebars of his bike came into contact with the USPS truck because the truck swerved into the bike lane where he was riding. However, Lazcano’s claim is unsupported by the evidence. Lazcano does not offer any eyewitness testimony that the truck swerved, and he himself testified that he did not see the postal truck move towards him before or during the impact. See, e.g., Furry, 712 F.3d at 993 (affirming judgment against plaintiffs who failed to offer eyewitness testimony regarding the cause of the accident and instead argued that the only “commonsense” explanation for the collision was that defendant hit them). On the other hand, Rishko testified that he did not make any turns or swerves. He explained that his route required him to drive straight through the intersection, and thus he had no reason to deviate from his lane. Rishko’s testimony is again corroborated by the video footage, which shows the truck steadily traveling forward, facing the same direction before and after the accident. The footage does not depict the truck taking any sharp turns or swerves. Lazcano claims that Rishko’s photos of the USPS truck’s position after the accident show that the truck must have swerved to the right, as its tires are not precisely lined up with the lane markings on the pavement. However, as Barrette’s reconstruction revealed, this configuration is easily explained by the emergence of a left turn lane at the intersection. Naturally, to make room for that left turn lane, the driving lane veers slightly to the right. In view of the evidence, the Court finds that Rishko adjusted the course of the USPS truck to stay in the driving lane, rather than swerving into the bike lane.

Lazcano also contends that Rishko acted carelessly by failing to check his mirrors as he approached the intersection to see if any bikers were in the bike lane. Rishko admitted at trial that he took this route on a regular basis and knew that bikers often used the bike lane on Lawrence. But Rishko explained that he did not check his mirrors immediately prior to the accident because his attention was focused on the road ahead. Considering the approaching intersection and red traffic light, the Court finds Rishko’s behavior reasonable. The Court acknowledges that if Rishko intended to swerve into the bike lane or otherwise change the course of the USPS truck, his duty of care would have required him to check his mirrors to avoid colliding with other vehicles or bikers. But as explained above, the USPS truck did not move out of the driving lane or take any turns. Thus, the Court cannot conclude that his failure to look for bikers in that moment constituted a breach of his duty.

*6 Lazcano further argues that Rishko was distracted by the radio while driving. Lazcano’s argument might be stronger if Rishko were listening to an exciting radio program or blasting loud music. But the footage from the dash cam illustrates that he was listening to a simple radio talk show at an appropriate volume. The Court declines to find that such conduct breaches the duty of reasonable care imposed on all drivers. Ultimately, Lazcano has offered several possible explanations for the collision but has not met his burden of proof.

The Court’s conclusion that Rishko was not negligent effectively puts Lazcano’s negligence claim to rest. Still, the Court briefly addresses the United States’s argument that Lazcano’s recovery should be reduced or barred due to contributory fault. “A plaintiff is guilty of contributory negligence when [he] fails to exercise a degree of care which a reasonably prudent person would have used for [his] own safety under like conditions, and that failure is the proximate cause of [his] injury.” Savage v. Martin, 628 N.E.2d 606, 614 (Ill. App. Ct. 1993). In Illinois, a plaintiff cannot recover on a negligence claim if his own negligence was more than 50% of the proximate cause of the injury for which he seeks to recover. See 735 ILCS 5/2-1116(c). And if a plaintiff’s negligence contributed to the injury but was less than 50% of the proximate cause, his recovery is reduced in proportionate to his contributory fault. See id. The United States argues that Lazcano failed to act with reasonable care by not wearing a helmet, riding a fixed-gear bike that has no brakes, and failing to maintain sufficient distance from the USPS truck.

The United States contends that both state and municipal laws require Lazcano to wear a helmet, ride a bike with proper brakes, and maintain a safe distance from other vehicles on the road, and his violation of these laws serves as evidence of his general carelessness. It is correct that violation of “a statute designed for the protection of human life and property … is prima facie evidence of negligence.” Lindquist v. Chi. & Nw. Transp. Co., 722 N.E.2d 270, 276 (Ill. App. Ct. 1999). However, any such negligence stemming from Lazcano’s lack of proper brakes was not the proximate cause of his injuries. See id. at 283 (finding “negligence on [plaintiff’s] part in causing the subject collision” (emphasis added)). While the Court agrees that a bicyclist acting with reasonable care should wear a helmet, Lazcano’s back, not his head, was injured. A helmet is unlikely to have prevented his injuries. Similarly, hand or foot brakes would have enabled Lazcano to come to a stop more quickly, but there is no indication in the record that his improved ability to stop would have prevented the accident. Lazcano testified that he was not moving at a high speed leading up to the intersection, as he had decreased the speed of his bike in response to the red traffic light up ahead. Further, Lazcano explained that he was trying to ride past the truck when his handlebar came into contact with its tire. As Lazcano was not trying to stop before he reached the truck, the Court does not see how his ability to brake more effectively would have prevented the accident.

Lazcano admitted that he came within six inches of the USPS truck. But viewed in context, this distance is not necessarily unreasonable. For example, Lazcano testified that the bike lane is only four feet wide. Barrette testified that the USPS truck was less than two feet away from the center line dividing eastbound and westbound traffic. Considering these short distances, the Court understands why Lazcano would be only six inches away from a vehicle on the road. Moreover, both Lazcano and the USPS truck had slowed down considerably in approaching the intersection, intending to come to a complete stop. Given their low speeds, the short distance between them is not clearly unreasonable. Therefore, the evidence does not establish that Lazcano was contributorily negligent.3

*7 Finally, the Court briefly summarizes the parties’ arguments as to damages. The United States argues that Lazcano cannot recover the costs of his medical treatment because the vast majority of it was medically unnecessary. The Court need not reach a conclusion as to this issue, however, because none of Lazcano’s treating physicians testified at the trial. Thus, Lazcano failed to authenticate properly his medical bills and other documentation of his treatment, which forces the Court rely solely on his testimony of pain and suffering. Lazcano requested a judgment in his favor of $50,000.4 Lazcano claims that he experienced pain and suffering and the loss of normal life. Specifically, he felt back pain for years and had to refrain from normal activity such as riding his bike or lifting weights heavier than 50 pounds. In response, the United States argues that Lazcano is not entitled to any such damages because his statements and conduct after his accident demonstrate that he was not actually in pain. For example, the ambulance report states that Lazcano denied feeling pain in his upper back, lower back, and neck. Also, Lazcano was discharged from the ER after only an hour. Moreover, in 2014, Lazcano was employed by a moving company as a mover, and his injury did not limit his ability to continue working there. But ultimately, because the Court has concluded that Rishko did not act negligently, the Court need not determine the extent of Lazcano’s pain and suffering.

CONCLUSION
Because Lazcano has not presented sufficient evidence to support a finding by a preponderance of the evidence that Rishko was driving negligently at the time of the accident, the Court finds that he has failed to meet his burden of proof. Judgment will accordingly be entered in favor of the United States.

All Citations
Slip Copy, 2020 WL 1157368

Footnotes

1
During cross-examination, counsel for the United States asked Lazcano whether he was aware that riding a bike without a hand or foot brake violates both Illinois state law and Chicago municipal law. Lazcano answered that he did not.

2
As explained in the Court’s August 20, 2019 Order (Dkt. No. 52), Lazcano indicated in his pretrial submission that he intended to call Dr. Michael, one of the physicians who treated Lazcano’s injuries after the accident, to testify at trial as both a fact and expert witness. However, even though the Court granted two continuances, Dr. Michael still failed to appear. Ultimately, Dr. Michael did not testify at the trial.

3
The Court’s conclusion that neither Rishko nor Lazcano were negligent reflects the belief that a collision can occur even when both parties act with reasonable care. The mere fact of a collision is insufficient evidence of negligence. See, e.g., Furry, 712 F.3d at 993.

4
The $50,000 request was based on $3,505 in medical bills from the ambulance service and ER after the accident, $20,000 for pain and suffering, and $26,495 for loss of normal life.