Belcher et al v. United States of America et al
Filing
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FINDINGS of FACT and CONCLUSIONS of LAW signed by Judge Garland E. Burrell, Jr. on 6/11/2015. Officer Linn exercised reasonable care in driving through the area where CLB was injured. Specifically, she reasonably assumed that Emily Lomba would ensure that CLB would not place himself in danger by entering portion of roadway used by traveling motorist, and there was no indication Officer Linn should have realized that CLB would place himself in danger by swiftly moving into that roadway at the app roximate time when Officer Linn reasonably discharged a law enforcement patrol observation function for reasonable period of time she was visibly investigating why Craig DeHerrera was moving his right arm towards the ground. For reasons stated, Judgment shall be entered IN FAVOR of defendant United States. (Marciel, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CALEB E. BELCHER; and CLB, by
and through his guardian ad
litem CALEB E. BELCHER,
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Plaintiffs,
v.
No.
2:13-cv-01699-GEB-KJN
FINDINGS OF FACT AND CONCLUSIONS
OF LAW
UNITED STATES OF AMERICA,
Defendant.
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This case concerns an unfortunate accident in which
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Plaintiff CLB (“CLB”), a young boy who was four years old at the
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time of the accident, caused himself to come into contact with a
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patrol vehicle driven by Jennifer Linn, a law enforcement patrol
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officer for the United States Department of Agriculture Forest
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Service (“Officer Linn”). CLB sues for the injuries he sustained
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as a result of the collision, and CLB’s father, Plaintiff Caleb
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E. Belcher (“Caleb Belcher”), sues based on his claim that he
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witnessed CLB’s accident and thereby also sustained injuries.
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The accident occurred on a road within the El Dorado
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National Forest in an area known as the Big Hill Lookout, which
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is located inside the State of California. The United States is
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the defendant in this action under the Federal Tort Claims Act
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and is liable to the same extent as a private party would be
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liable “in accordance with the law of the place where the act or
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omission occurred.” 28 U.S.C. § 1346(b)(1). Therefore, California
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law governs the claims.
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Each Plaintiff alleges a negligence claim against the
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United
States,
premised
on
the
assertion
that
Officer
Linn
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breached the duty of care she owed CLB. Specifically, Plaintiffs
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contend Officer Linn failed to exercise the degree of care she
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should have used to prevent CLB from receiving the injuries he
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received when he collided with the patrol vehicle Officer Linn
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drove.
Plaintiffs argue under California law “[a] greater degree
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of care is generally owed to children because of their lack of
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capacity to appreciate risks and avoid danger.”
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Sunset Manor Co., 220 Cal. App. 3d 1, 7 (1990); see also Judicial
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Council of California Civil Jury Instructions (2015 ed.) No. 412
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(“An adult must anticipate the ordinary behavior of children. An
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adult must be more careful when dealing with children than with
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other
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negligence in Flowers v. Torrance Mem’l Hosp. Med. Ctr., 8 Cal.
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4th
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footnote, and alteration in original omitted), as follows:
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adults.”).
992,
997-98
The
(1994)
California
(internal
Supreme
quotation
McDaniel v.
Court
marks,
discussed
citations,
Negligence is conduct which falls below
the standard established by law for the
protection of others against unreasonable
risk of harm. Thus, as a general proposition
one is required to exercise the care that a
person of ordinary prudence would exercise
under the circumstances. Because application
of this principle is inherently situational,
the amount of care deemed reasonable in any
particular case will vary, while at the same
time the standard of conduct itself remains
constant, i.e., due care commensurate with
the risk posed by the conduct taking into
consideration all relevant circumstances.
There are no degrees of care, as a matter of
law; there are only different amounts of
care, as a matter of fact. . . .
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With respect to professionals, their
specialized education and training do not
serve to impose an increased duty of care but
rather
are
considered
additional
“circumstances”
relevant
to
an
overall
assessment of what constitutes “ordinary
prudence” in a particular situation. Thus,
the standard for professionals is articulated
in terms of exercising “the knowledge, skill
and care ordinarily possessed and employed by
members
of
the
profession
in
good
standing . . . .
The following findings of fact and conclusions of law
are made under Federal Rule of Civil Procedure 52, in light of
the testimony and documentary evidence presented at trial.
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FINDINGS OF FACT
1.
On January 15, 2011, Caleb Belcher, accompanied by
his then four year old son CLB, and others, visited the Big Hill
Lookout area to play in the snow.
2.
The Lomba family accompanied Caleb Belcher and CLB
in a Recreational Vehicle (“RV”) to the area where the Big Hill
Lookout is located at the top of Ice House Road. Two members of
the group followed in a Jeep.
3.
Big Hill Lookout Tower is surrounded by a one-way
asphalt, round-a-bout roadway, with an open area in the middle
that was covered with snow on January 15, 2011.
4.
At the time Plaintiffs arrived, the weather was
clear and sunny, and visibility was good.
5.
Upon arriving, the group parked the RV off of the
right side of the road, and the Jeep followed behind.
6.
A
video
camera
on
Big
Hill
Lookout
Tower
was
positioned in a manner that looked down onto the accident scene
towards Ice House Road from above, and recorded the accident.
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7.
Following arrival at the destination, Emily Lomba
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(a then nineteen-year-old woman) took a then five-year-old girl
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and CLB out of the RV to play in the snow.
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8.
Emily
Lomba
and
the
two
children
crossed
the
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round-a-bout road and began playing in the snow covered open
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area.
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Caleb Belcher remained in the RV, putting on his
snow boots.
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10.
Emily
Lomba
and
the
children
threw
snowballs
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across the road, back towards the RV at Craig DeHerrera, a family
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friend.
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11.
On the subject date, Officer Linn was on patrol in
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a Forest Service white Ford Expedition, and approached the area
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of Big Hill Lookout.
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12.
Officer Linn was patrolling the area in accordance
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with her patrol functions, testifying that the Big Hill Lookout
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Tower had frequently been broken into.
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13.
As Officer Linn drove up Ice House Road towards
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the Big Hill Lookout Tower round-a-bout, someone was parking a
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Jeep near the RV.
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14.
As the Jeep was being parked, it blocked the entry
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point of the round-a-bout, and Officer Linn’s vehicle came to a
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virtual stop before entering the round-a-bout.
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15.
The entry from Ice House Road to the round-a-bout
is up a relatively steep incline.
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As the Jeep moved out of the roadway, Officer Linn
drove into the round-a-bout.
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As Officer Linn entered the area, she observed a
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group of people on her left, and a gentleman (later determined to
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be named Craig DeHerrera) on her right. The group on the left
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consisted of Emily Lomba, CLB, and another child, all of whom she
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observed
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DeHerrera was on her right.
playing
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in
the
snow
and
throwing
snowballs.
Craig
During Officer Linn’s approach, Emily Lomba, CLB,
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and the other minor child were out of the vehicle travel portion
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of the road, and were positioned on the left hand side of the
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direction she traveled, either out of the roadway entirely or on
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the
outer
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beginning of the snow berm.
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edge
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of
the
asphalt
roadway
where
it
abutted
the
During Officer Linn’s approach, Emily Lomba, CLB,
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and the other minor child were within arm’s-length of each other,
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playing in the snow, and Officer Linn had no reason to suspect
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that Emily Lomba would not keep the children a safe distance from
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the portion of the road used for vehicle travel or that CLB would
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suddenly move into the road and collide with the left front
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portion of the white Ford Expedition Officer Linn drove.
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During Officer Linn’s approach, the parties did
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not throw snowballs across the road, and Officer Linn did not
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observe
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approached.
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them
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throwing
Officer
snowballs
Linn
drove
across
slowly
the
road
through
before
the
area
she
at
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approximately 6.5 miles per hour, passing between Craig DeHerrera
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on the right side of the vehicle she drove, and Emily Lomba and
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the two minor children on the left side of that vehicle.
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22.
During Officer Linn’s approach, she had no reason
to suspect that CLB or any other person was about to move quickly
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into the roadway.
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As Officer Linn proceeded to pass when CLB had his
back to her vehicle and was within arms-reach of Emily Lomba.
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24.
side
Officer Linn then noticed Craig DeHerrera (on the
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right
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motion. She saw something in his right hand.
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observations before the impact with CLB. Officer Linn explained
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that it is within the scope of her patrol law enforcement duties
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to
be
of
the
attentive
road)
to
engage
people
in
his
the
right
arm
forest
in
a
downward
She made these
that
get
rid
of
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contraband when they see law enforcement officers, and that arm
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movements toward the ground could pose a safety concern.
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25.
Officer
Linn
looked
toward
Craig
DeHerrera
for
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approximately one second to determine why he was moving his arm
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toward the ground. After looking towards Craig DeHerrera, Officer
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Linn
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beverage on the ground.
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right side of the road, away from where the children and Emily
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Lomba were located on the left side of the road.
determined
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he
was
placing
a
container
of
Rockstar
Officer Linn was then driving on the
At the same approximate time that Officer Linn
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looked
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warning, darted into the roadway.
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away
that
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from
Craig
DeHerrera,
CLB
quickly,
and
without
CLB ran into the driver’s side of Officer Linn’s
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patrol
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Officer Linn did not see CLB before he contacted her vehicle. CLB
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moved quickly into the vehicle’s left front, where he collided
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with it, following which he fell to the ground, and the vehicle
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rolled over one of his legs.
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vehicle,
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contacting
it
near
the
front
quarter
panel.
Defendant’s accident reconstruction expert, Rajeev
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Kelkar, Ph.D. explained that it took CLB only 1.0-1.2 seconds to
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strike Officer Linn’s vehicle from the time he began unexpectedly
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moving quickly into the roadway.
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Linn’s vehicle and shorter than its hood.
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30.
Officer
Linn
never
saw
CLB
move
towards
her
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Officer Linn’s first awareness of a problem was
vehicle.
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CLB was slightly taller than the tire on Officer
when she heard a woman scream, “Oh my God, [CLB].”
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32.
After Officer Linn heard this shout, she pressed
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her brakes, and stopped her vehicle.
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part of her right front tire was slightly off the right side of
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the road.
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33.
When she came to a stop,
CLB was in the roadway at the time of the initial
contact between him and Officer Linn’s vehicle.
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34.
Officer Linn’s vehicle remained in the roadway at
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all times before, during, and after CLB made contact with the
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vehicle.
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35.
Under the circumstances, Officer Linn could not
reasonably have stopped her vehicle before CLB collided with it.
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36.
be
Dr. Kelkar opined that since Officer Linn could
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not
expected
to
have
reasonably
anticipated
CLB’s
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movement into the vehicle travel portion of the road, this was a
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virtually unavoidable accident for Officer Linn.
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37.
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Officer Linn was traveling at speeds of
approximately six and a half miles per hour
or less in the four seconds leading up to
initial contact between CLB and [Officer
Linn’s vehicle] . . . . CLB was on the east
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Dr. Kelkar testified:
sudden
1
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side of the roadway [the driver’s side of
Officer Linn’s vehicle] for several seconds
as Ms. Linn approached the entrance to the
Lookout Tower loop. CLB was moving across Big
Hill Road for approximately 1.1 seconds
before initial contact was made. Look away
time, perception reaction time and the break
to stop times are in excess of the time that
CLB was moving across the roadway, making
this a virtually unavoidable accident for Ms.
Linn.
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38.
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Dr. Kelkar explained he engaged in “what we call
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the time speed and distance analysis” to determine travel time,
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as follows:
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We take the video footage and we reconstruct
using photogrammetry the location of the
vehicle at various points in time. The video
footage has a time clock on the upper left
corner and that allows us to tell us at this
particular
point
in
time
without
reconstruction of the photogrammetry where is
the vehicle, and so once you place the
vehicle on the scale scene diagram, we can
then measure off distances and we know the
distance covered in a certain amount of time,
and we can calculate the average speed across
that timing tool.
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39.
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Dr. Kelkar also testified that the tire tracks of
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Officer Linn’s vehicle “indicat[e] that . . . [she] [wa]s moving
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towards
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[(passenger side)] as she[] [was] approaching the loop.”
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the
40.
right
side
or
the
west
side
of
the
roadway
In addition, down the road from where the accident
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occurred, but in view of the RV and the playing children, Cammie
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Hewitt and her family were parked and observing the RV, the
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children, and the activity in the round-a-bout. Cammie Hewitt
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testified during the trial that her family was about half a block
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from where the RV was parked, and she saw adults cross the street
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with a child.
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about how the child wasn’t being watched,” “and then before we
She also testified that “we had made a comment
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knew
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Officer Linn drove. Cammie Hewitt also told California Highway
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Patrol Sergeant Christopher Davis “it wasn’t the ranger’s fault,”
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“something outside the driver’s control caused the accident.”
it
[the
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41.
child]
The
in
the
California
and
its
corner
Highway
of
the
Patrol
conclusions
vehicle”
also
indicate
that
investigated
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CLB’s
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reasonable for Officer Linn’s attention to be drawn to Craig
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DeHerrera in light of his downward arm movement, and that Officer
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Linn did not see CLB when he moved further into the roadway and
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accident
was
that
it
was
collided with the vehicle Officer Linn drove.
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CONCLUSIONS OF LAW
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Officer
the
exercised
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not
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roadway used by a traveling motorist, and there was no indication
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that
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himself in danger by swiftly moving into that roadway at the
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approximate time when Officer Linn reasonably discharged a law
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enforcement patrol observation function for the reasonable period
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of time she was visibly investigating why Craig DeHerrera was
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moving his right arm towards the ground.
Officer
Linn
should
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by
have
injured.
driving
reasonably assumed that Emily Lomba would ensure that CLB would
danger
was
in
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in
CLB
care
through
himself
where
reasonable
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place
area
Linn
entering
realized
Specifically,
the
that
portion
CLB
she
of
would
the
place
JUDGMENT
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For the stated reasons, Judgment shall be entered in
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favor of the United States.
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Dated:
June 11, 2015
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