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Damasco v. United States

United States District Court, W.D. Washington, Seattle

June 20, 2018

EDITHA DAMASCO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendants.

          DAVID H. ZIELKE, Law Firm of David H. Zielke.

          ANNETTE L. HAYES United States Attorney TRICIA BOERGER, WSBA #38581 Assistant United States Attorney Western District of Washington United States Attorney's Office.

          PRETRIAL ORDER

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.

         I. JURISDICTION

         Jurisdiction is vested in this Court by virtue of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2679(b)(1). The United States has waived sovereign immunity for the negligent or wrongful acts or omissions of any federal employee acting within the scope of employment, under circumstances where the United States, if a private person, would be liable to the plaintiff in accordance with the law of the place where the act or omission occurred. 28 U.S.C. §§ 1346(b). The parties agree that Washington substantive law applies to this case.

         II. CLAIMS AND DEFENSES

         A. At trial, Plaintiff intends to pursue relief in the form of damages sustained by Plaintiff in the amount of $800, 200.00, including past and future medical expenses and other health care expenses, pain and suffering, both mental and physical, past and future permanent partial disability and disfigurement, loss of enjoyment of life, damages to property, past and future special damages, and exemplary and other damages.

         B. The Defendant will pursue the following defenses and/or claims for relief to Plaintiff's negligence claim:

1. Plaintiff cannot meet her burden of proof to establish negligence by the United States because:
a. The government driver complied with any duty owed to Plaintiff by waiting to turn left onto International Boulevard until the protected left turn signal was illuminated, checking to ensure the turning lane was clear before proceeding, and exercising the care expected of a reasonably prudent driver in similar circumstances.
b. Plaintiff appeared suddenly in the street and was not seen or able to be seen by the government driver, or by an eyewitness following the government vehicle through the turn, until immediately before the collision.
2. Plaintiff failed to comply with her duty to obey the Do Not Walk signal and yield the right-of-way to vehicles turning northbound onto International Boulevard during a protected left turn signal.
3. Plaintiff failed to comply with her duty to yield the right-of-way to all vehicles upon the roadway when crossing outside of a marked crosswalk.
4. Plaintiff's injury was caused by her own negligence in crossing the street against a protected left turn signal and while the Do Not Walk signal was illuminated.
5. Plaintiff's injury was caused by her own negligence in crossing the street at least ten feet outside of the crosswalk.
6. Plaintiff failed to exercise ordinary care for her own safety when crossing the street by failing to obey the Do Not Walk signal, failing to use the crosswalk, failing to yield the right-of-way to the government vehicle, and failing to see the government vehicle in the seven seconds it took the vehicle to travel from its stopped position to the point of impact.
7. If the Court finds that the government employee was negligent-a claim which the United States specifically denies-Plaintiff's recovery, if any, should be reduced in proportion to her contributory fault (see RCW 4.22.005) for the reasons enumerated above.
8. Plaintiff failed to mitigate her damages by refusing to fully participate in her recommended physical therapy and discontinuing physical therapy before it was complete.
9. Plaintiff failed to mitigate her damages by timely seeking treatment for ongoing pain in her hip, waiting only a few weeks before trial to seek treatment when she knew or reasonably should have known of the need for treatment at least six months earlier, if not more.

         III. ADMITTED FACTS

         The following facts are admitted by the parties:

1. The intersection of S. 188th Street and International Boulevard in SeaTac, Washington is controlled by four traffic signals and four traffic control devices; one for each direction of travel through the intersection.
2. There are four crosswalks at this intersection, one for each direction of travel through the intersection.
3. There is a crosswalk on the north side of International Boulevard at S. 188th Street, which is controlled by a traffic control device (“walk signal”).
4. There is a prompt button on the north side of International Boulevard at S. 188th Street that must be pressed in order to obtain a walk signal.
5. The next intersection to the north of International Boulevard at S. 188th Street is S. 184th Street, which is controlled by traffic signals and has three crosswalks, one in each direction, except the north side.
6. The traffic signals, traffic control devices, and crosswalks at the intersection of S. 188th Street and International Boulevard are substantially the same today as they were on May 26, 2013.
7. On May 26, 2013, Plaintiff was 60 years old.
8. On May 26, 2013 at approximately 3:45 a.m., Plaintiff was crossing International Boulevard on the north side of the intersection with S. 188th Street in SeaTac, Washington.
9. On May 26, 2013 at approximately 3:45 a.m., Deidre Stoddard was driving a United States Postal Service vehicle and was acting within the scope and course of her employment for the United States Postal Service.
10. The United States Postal Service vehicle was a 1998 Ford Windstar minivan.
11. On May 26, 2013 at approximately 3:45 a.m., Ms. Stoddard was traveling eastbound on S. 188th Street in SeaTac, Washington, and stopped at a traffic signal while waiting to make a left turn onto northbound International Boulevard.
12. Ms. Stoddard was first in line waiting to turn left onto northbound International Boulevard.
13. Ms. Stoddard just missed the protected left turn arrow and had to wait through the traffic signal sequence before obtaining the next protected left turn arrow.
14. On May 26, 2013 at approximately 3:45 a.m., Bradley Hall was driving a semi-tractor trailer for Blue Tick Trucking, LLC, and was immediately behind the Postal Service vehicle in the left turn lane on S. 188th Street.
15. When the protected left turn arrow illuminated for eastbound S. 188th Street, Ms. Stoddard proceeded to turn left onto northbound International Boulevard.
16. Mr. Hall followed Ms. Stoddard's vehicle through the protected left turn arrow, turning left onto northbound International Boulevard.
17. At some point during or immediately following the protected left turn, the Postal Service vehicle made contact with Plaintiff.
18. The contact between the vehicle and Plaintiff was at the front left corner (driver's side) of the vehicle.
19. The contact occurred in the western lane of northbound International Boulevard.
20. Ms. Stoddard stopped the Postal Service vehicle in the right lane of northbound International Boulevard, past the point of contact, and immediately returned to attend to Plaintiff.
21. Mr. Hall stopped his semi-tractor trailer behind the Postal Service vehicle and the trailer section of his vehicle was parked in the north crosswalk on International Boulevard.
22. Officer Michael Yamamoto of the SeaTac Police Department was dispatched to the scene at 3:49 a.m. and arrived at approximately 3:57 a.m.
23. Plaintiff was transported to Highline Medical Center by emergency response personnel.
24. Plaintiff was examined by medical personnel and diagnosed with left hip fractures and a mild scalp hematoma with superficial erosion in the left parietal region.
25. Dr. William Clark performed a three-screw fixation surgery on May 27, 2013 to repair the hip fractures.
26. Plaintiff remained at Highline Medical Center until June 3, 2013, when she was transferred to Avalon Healthcare, Inc., a rehabilitation facility for recovery and was released on July 2, 2013.
27. On May 26, 2013, Plaintiff was employed full-time by Concessions International, LLC, and part-time by Host International, Inc.
28. Plaintiff was cleared by Dr. Clark to return to work on August 20, 2013.
29. Plaintiff resigned her position with Host International, Inc. on or about August 21, 2013.

         IV. ISSUES OF LAW

         A. Plaintiff submits the following are issues of law to be determined by the Court:

1. Did Ms. Stoddard have a duty to yield the right-of-way to pedestrians in the crosswalk at the time of the incident?
2. Did Ms. Stoddard have a duty to exercise reasonable care to avoid striking pedestrians crossing the roadway at the time of the incident?
3. Did Ms. Stoddard, as the driver of a vehicle approaching a crosswalk, have a duty of continuous observation at the time of the incident?
4. Did Ms. Stoddard have a duty to see what would be seen by a person exercising ordinary care at the time of the incident?
5. Did Ms. Stoddard have the right to assume others will exercise ordinary care, and did she have a right to proceed on such assumption until she knew, or in the exercise of ordinary care, should have known, to the contrary?
6. Has Plaintiff proved by a preponderance of the evidence that the United States breached a duty owed to Plaintiff at the time ...

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