Brisebois et al v. United States of America et al

Filing 71

MEMORANDUM AND OPINION finding in favor of Defendant. Signed by Judge Gregory A. Presnell on 10/31/2018. (ED)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JEFFREY BRISEBOIS,
Plaintiff,
v.

Case No: 6:16-cv-1589-Orl-31GJK

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION
Plaintiff Jeffrey Brisebois (“Brisebois”) brings this action against the United States
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675, et seq. A bench trial was
held June 12 through 14, 2018. A transcript of the trial has been filed, 1 and the parties filed posttrial memoranda (Doc. Nos. 69 and 70).
I.

The Facts 2
Around noon on October 28, 2013, Brian Turner (“Turner”), an assistant letter carrier, was

driving a U.S. Postal Service Grumman Long-Life Vehicle (“LLV”) westbound on New
Hampshire Street in Edgewood, Florida. 3 New Hampshire Street is a two-lane road running east
and west. It forms a “T” intersection with U.S. Highway 1, also known as “Ridgewood.” At this

1

The transcript was filed in three volumes: Day 1 (Doc. 62), Day 2 (Doc. 64), and Day 3
(Doc. 67). Reference to the transcript herein will be by volume number, followed by page
number.
2
3

These facts are largely uncontested.

Defendant concedes that Turner was acting within the course and scope of his
employment with the U.S. Postal Service.

intersection with Ridgewood, New Hampshire is controlled by a stop sign and stop line. Only a
right turn is allowed. At this same time, Brisbois was riding his bicycle southbound on the
sidewalk on the eastern side of Ridgewood against the northbound flow of traffic. 4
As he approached the intersection, Turner stopped his LLV at the stop line on New
Hampshire Street. (Tr. Vol. 1, p. 123-124). 5 He looked to his left, to his right, and then again to
his left. His vision to the left was obstructed by a building on the southeast corner of the
intersection, so in order to see oncoming northbound traffic, he pulled forward approximately
twelve feet before initiating his right-hand turn onto Ridgewood. 6 Seeing a gap in northbound
traffic, Turner continued his right-hand turn without looking again in that direction and collided
with Plaintiff’s bicycle almost immediately. 7 (Id., p. 125). Turner never saw Brisebois before the
collision. (Id., p. 120). After the impact, the LLV moved a very short distance, 8 and Plaintiff
remained upright on his bicycle.
Plaintiff testified that he first saw the moving LLV when he was about 20 to 30 feet from
the intersection. However, he did not attempt to stop his bicycle. Instead, he swerved to the

4

Defendant posits that Brisebois may have been riding on the shoulder of Ridgewood, but
the Court credits Brisebois’s testimony that he was riding on the sidewalk.
5

Brisebois claims that the LLV did not stop at the stop bar, but the greater weight of the
evidence supports Turner’s testimony in this regard.
6

Ridgewood (US 1) is a heavily traveled four-lane divided highway with a 45 mile per
hour speed limit. In order to see oncoming northbound traffic, Turner had to pull forward about
12 feet west of the stop line. (Tr. Vol. 3, p. 137).
7

Impact with Plaintiff’s bicycle occurred on the left front of the LLV and caused a side
mirror to break loose.
8

Turner estimated the distance to be five feet or less. (Tr. Vol. 1, p. 135). Plaintiff
described it as an inch. (Tr. Vol. 3, p. 37). Defendant’s expert witness calculated the distance at
two feet. (Tr. Vol. 3, p. 73).

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right and attempted to pass in front of the LLV, thinking it would stop. (Tr. Vol. 3, p. 35-37). It
didn’t, and he collided with it.
II.

The Law
In an FTCA case, the Court applies the law of the place where the accident occurred. 28

U.S.C. § 1346(b)(1). Thus, Florida law provides the rule of decision here. Under Florida law,
each party to this case was required to exercise due care under the circumstances. 9 Florida
Statute § 316.123(2)(a) required Turner to come to a complete stop at the stop line before
proceeding to make his right-hand turn. Turner complied with this requirement. Florida Statute
§ 316.2065(9) imposes the same duties on a bicyclist as those imposed upon pedestrians, and
Florida Statute § 316.130(8) provides that “no pedestrian shall suddenly leave a curb or other
place of safety and walk or run into the path of a vehicle which is so close that it is impossible for
the driver to yield.” As discussed below, Plaintiff violated this provision.
III.

The Expert Testimony
Defendant called Dr. Justin Morgan as an expert witness in accident reconstruction. 10

Using his report as a demonstrative guide, Dr. Morgan explained how he calculated the movement
of the two vehicles as they approached the point of collision and final rest. 11 Except for an
alleged scaling error, Dr. Morgan’s testimony was largely unrebutted. 12

9

Florida Statue § 316.1925 requires that anyone operating a vehicle on Florida roads must
do so in a “careful and prudent manner,” while Florida Statute § 316.2065(1) provides that,
generally, bicyclists have the same duties as drivers of other vehicles.
10

Plaintiff did not object to Dr. Morgan’s qualification to testify as an expert witness in
the field of human factors and accident reconstruction. (Tr. Vol. 3, p. 60).
11

Portions of Morgan’s report were displayed on Court Exhibit 2 (“CX2”), which appears
in the docket as Doc. 60-2.
12

The scaling error can be seen on page 18 of CX2, which shows the LLV located behind
the stop bar at a point in time when it should have been pulled up to the stop bar. (Doc. 60-2, p.

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Dr. Morgan reconstructed the accident by starting with the known final resting point of the
vehicles after impact 13 and then working backwards using other evidence and reasonable
assumptions as to vehicle speeds and distance traveled. 14
Using visual evidence, Dr. Morgan concluded that with the front of the LLV at the stop
line, and the driver’s eyes 7 feet behind that, Turner had an unobstructed view of 74.6 feet down
the sidewalk. (Tr. Vol. 3, p. 67). Assuming that Plaintiff was riding his bicycle at 10 miles per
hour (a reasonable assumption), Dr. Morgan estimated that when the LLV began to accelerate
from the stop line, Plaintiff would have been approximately 78 feet away from the intersection,
outside of Turner’s view. 15 (Tr. Vol. 3, p. 75).
From the stop line, Dr. Morgan assumed that the LLV accelerated to a speed of 5 miles per
hour and maintained that speed until impact, traveling a total of 32.6 feet in 5.9 seconds. (Doc.
60-2, p. 16). After the LLV had accelerated to 5 miles per hour, Plaintiff would have been 33.4
feet away. (Tr. Vol. 3, p. 75). At 10 miles per hour, after application of the brakes, the bike
could be stopped in .9 seconds. With a perception-reaction time of 1 second, the bike would thus
come to a stop in 1.9 seconds, covering a distance of 21.3 feet. (Tr. Vol. 3, p. 84). As depicted
in CX2, at 2 seconds before impact, Plaintiff was 29 feet away. (Doc. 60-2, p. 21). Consistent
with Plaintiff’s testimony that he was 20 to 30 feet away when he saw the LLV, he had time to

18). This representation, however, does not affect the validity of Dr. Morgan’s calculations.
13

The final resting point is clearly depicted at CX2, showing the LLV in the northbound
lane of Ridgewood. (Doc. 60-2, p. 12-14).
14

The sequence of the moving vehicles is depicted at pages 18-24 of CX2. (Doc. 60-2, p.

18-24).
15

The vision here is bidirectional, so Plaintiff should have been able to see the LLV from
74.6 feet away, 5 seconds before impact. (Doc. 60-2, p. 18)

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stop, or at the very least, brake and go behind the LLV. 16 Instead, he elected to leave the
sidewalk (a place of safety), enter the highway, and turn in front of a moving mail truck. (Tr.
Vol. 3, p. 80). 17
IV.

Conclusion
This accident was not Turner’s fault and no amount of negligence will be attributed to

Defendant. The Court will enter judgment for the Defendant.
DONE and ORDERED in Chambers, Orlando, Florida on October 31, 2018.

16

Plaintiff should have been able to see the LLV at least 3 seconds before impact, when he
was 44 feet away. (Doc. 60-2, p. 20).
17

Plaintiff testified that when he first saw the LLV, it was moving forward, but he thought
it would stop at the stop sign. However, the objective evidence shows that when Plaintiff saw the
LLV, it had already stopped at the stop line and was in the process of making the right-hand turn
onto Ridgewood.

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