Voccia v. United States of America et al

Filing 61

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Based upon the foregoing findings of fact and conclusions of law, the court concludes that the United States was not negligent, and therefore not liable for plaintiffs injuries. The Clerk of the Court is respectfully requested to enter judgment in favor of defendant and close this case. Ordered by Judge Kiyo A. Matsumoto on 3/31/2017. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------- X
MARIO VOCCIA,

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

Plaintiff,
-against-

12-CV-05909(KAM)(SMG)

UNITED STATES OF AMERICA,
Defendant.
--------------------------------------- X
MATSUMOTO, United States District Judge:
Plaintiff Mario Voccia commenced this action against the
United States of America (“defendant”), pursuant to the Federal
Tort Claims Act (“FTCA”) 28 U.S.C §§ 2671, et seq., seeking damages
for a head injury he claims to have suffered in July 2008, when he
allegedly was negligently assisted by VA personnel into a shuttle
van owned and operated by the United States Department of Veterans’
Affairs (the “VA”).

The liability portion of the claim was tried

before this court on July 12 and July 13, 2016.

(See generally,

Trial Transcript (“Tr.”).)
Having considered the evidence at trial, assessed the
credibility

of

the

witnesses,

and

reviewed

the

post-trial

submissions of the parties, 1 the court makes the following findings
of fact and conclusions of law pursuant to Rule 52 of the Federal
Rules of Civil Procedure 2 (“Rule 52”) and ultimately concludes,
for the reasons set forth below, that plaintiff has failed to prove
that the United States is liable for his injury.
FINDINGS OF FACT
I.

Background
A. The Relevant Individuals
Plaintiff was 52 years old at the time of the July 8,
2008

accident

“Accident”). 3

that

is

the

(Tr. 80:3-5.)

subject

of

this

lawsuit

(the

At that time, he wore reading glasses

but did not need prescription eyeglasses or contacts for distance
vision.

He had no issues or limitations with walking short

distances or climbing stairs.

(Tr. 123:4-124:2.)

Plaintiff was

about five feet and ten inches tall, and weighed approximately 180
pounds at the time of the Accident in July 2008.

(Tr. 122:22-

123:3.)

1

The post-trial submissions of the parties included: ECF No. 57, Defendant’s
Proposed Findings of Fact and Conclusions of Law (“Def. Mem.”) dated 11/4/2016;
ECF No. 58, Plaintiff’s Proposed Findings of Fact and Conclusions of Law (“Pl.
Mem.”) dated 11/4/2016; and ECF No. 60, Plaintiff’s Opposition to Defendant’s
Proposed Findings of Fact and Conclusions of Law (“Pl. Opp.”) dated 12/19/2016.

2 Rule 52 provides, in relevant part, that following a bench trial, “the court
must find the facts specially and state its conclusions of law separately.”
Fed. R. Civ. P. 52.
3

Plaintiff testified that he was 60 years old on July 12, 2016, almost exactly
8 years after the Accident.

2

Lou Guo has been employed by the VA as a shuttle driver
since 2004. (Tr. 16:18-25.)

Mr. Guo was the driver of the VA

shuttle involved in the Accident.

(Tr. 16:18-23.)

At the time of

the Accident, Mr. Guo was approximately five feet and five inches
tall, and weighed approximately 150 pounds.

(Tr. 72:6-17.)

Dewton Williams has been employed by the VA since 2006,
initially as a shuttle driver, then as a Motor Vehicle Operator
Leader, and currently as a transportation supervisor.

At the time

of the Accident, Mr. Williams’ title was Motor Vehicle Operator
Leader.

(Tr. 175:5-9, 175:17-21, 176:3-5.)

Mr. Williams was the

supervisor who responded to the Accident after being called by Mr.
Guo.

(Tr. 133:6-14, 134:6-13.)
Sgt. Paul Annitto has been a VA Police Officer since

2004, and currently holds the title of Sergeant.
193:8.)

(Tr. 192:24-

Sgt. Annitto also responded to the Accident after being

called by Mr. Guo.

(Tr. 194:8-11.)

B. The VA Shuttle
At the time of the Accident, the VA operated a courtesy
shuttle which transported patients between its New York City
metropolitan area facilities.

(Tr. 133:22-134:5.)

Passengers who

wished to take the shuttle arranged to place their names on a list,
which was referred to as the passenger manifest.
(“Ex.”) 3.)

(Trial Exhibit

The VA courtesy shuttle the plaintiff was entering

3

when the Accident occurred was a 2008 Chevy Express Passenger Van
(the “Shuttle”).

(Exs. 1, J.)

Plaintiff had ridden the shuttle,

which used the same type of vehicle, at least twenty times prior
to the July 8, 2008 Accident.
entered

and

exited

the

(Tr. 119:21-120:2.)

Shuttle

through

double

doors

passenger side of the van (the “Passenger Doors”).
30:15-20, 85:17-23, 142:2-13.)

Passengers
on

the

(Ex. J; Tr.

The Passenger Doors were held

closed by a U-shaped metal latch located at the top, in the middle,
of the Passenger Doors (the “Latch”).

The Latch was attached by

the manufacturer to the Shuttle’s ceiling.
157:22- 158:2.)

(Ex. J; Tr. 34:5-14,

The Latch was visible and unobscured, when the

Passenger Doors were open, to someone preparing to enter the
Shuttle through the Passenger Doors.

(Tr. 177:9-12.)

In July 2008, VA shuttle drivers placed a stepstool in
front of the Passenger Doors for passengers to use, if they wished,
when entering and exiting the shuttle.

(Tr. 145:19-21.)

Although

no evidence was proffered concerning the stepstool’s dimensions,
lay

witnesses

estimated

that

the

top

of

the

stepstool

was

approximately halfway between the ground and the Shuttle’s first
step and noted that the stepstool was not as wide as the Passenger
Doors.
presented

(Tr. 43:24-44:6, 151:4-8, 182:6-7.)
concerning

any

industry

standard

No evidence was
requiring

that

a

stepstool be provided for passengers to use when entering the

4

Shuttle.

(Tr. 225:23-226:13.)
During

his

testimony,

VA

shuttle

driver

Lou

Guo

explained the general procedure he used in July 2008, when boarding
passengers onto the shuttle.

Mr. Guo first would park the shuttle

in the shuttle loading area, lock the doors, and go into the office
and obtain a copy of the manifest.

He would then return to the

shuttle, unlock the Passenger Doors, take the stepstool out of the
shuttle, place it on the ground in front of the Passenger Doors,
and call the passengers’ names from the manifest.

He explained

that each shuttle had a stepstool which was stored either under
the front passenger seat or in the back of the shuttle.

(Tr. 42:4-

43:23; see also Tr. 177:17-178:2.)
II.

The Accident
On

July

8,

2008,

plaintiff’s

name

was

listed

passenger on the manifest for the 12:30 p.m. shuttle.

as

a

(Ex. 3.)

Each of the shuttles, on which plaintiff rode at least twenty times
before the Accident, had the same double doorway with the central
latch through which passengers entered and exited the van.

(Tr.

119:21-120:2.)
Plaintiff had ridden the Shuttle many times before the
Accident and, therefore, was generally familiar with the Shuttle’s
configuration, including the latch at the top of the Shuttle’s
entryway. (Tr. 124:3-12.) Plaintiff was initially unable to board

5

the Shuttle because there was no seat available when he attempted
to do so.

However, another passenger got off and a seat then

became available for plaintiff.
14.)

(Tr. 87:16-88:1, 100:8-15, 141:8-

Plaintiff then proceeded to board the Shuttle.

slip or trip while doing so.

(Tr. 129:17-21.)

when he bumped his head on the Latch.

He did not

He was injured

(Tr. 112:25-113:2.)

A. Evidence Concerning the Presence of the Stepstool
Plaintiff testified at trial that he did not see a
stepstool at any point on the day of the Accident.
102:11-19,

124:13-15.)

Mr.

Guo

testified

that

(Tr. 88:2-13,
putting

the

stepstool in place for boarding and alighting was part of his job
and his usual custom and practice.

He also testified that he had

no reason to believe that he deviated from his usual practice of
putting the stepstool in place for boarding and alighting on the
day of the Accident.

(Tr. 72:18-73:11, 73:24-74:19, 75:7-14.)

The court finds Mr. Guo’s testimony to be credible.
Further, VA Transportation Supervisor Dewton Williams
largely corroborated Mr. Guo’s testimony.

Mr. Williams testified

that shortly before the Accident, Mr. Guo called and asked him to
come to the shuttle loading area to assist with an issue that had
arisen with a passenger who had boarded the Shuttle even though
his name was not on the passenger manifest. (Tr. 134:6-19, 139:24140:5.) Mr. Williams testified that when he arrived at the shuttle

6

loading area, the stepstool was in front of the Passenger Doors,
and neither he, nor anyone else, removed the stepstool at any point
between when he got to the shuttle loading area and when plaintiff
boarded the Shuttle.

(Tr. 151:14-19, 184:7-12.)

Mr. Williams

explained, just like Mr. Guo did, that setting the stepstool in
front of the Passenger Doors was part of the general process
drivers used in July 2008, before passengers entered and exited
the shuttle. (Tr. 72:18-24, 177:17-178:2.) Mr. Williams testified
that he always ensured that the stepstool was in place when he was
overseeing boarding and that he would not have allowed the boarding
process to proceed without the stepstool being in place.
178:6-8, 183:16-184:16.)

(Tr.

The court finds Mr. Williams testified

credibly.
Defendant

argues

that

the

court

should

not

credit

plaintiff’s trial testimony that he never saw the stepstool at any
time on the day of the Accident because his prior statement
contradicted his trial testimony.

(Def. Mem. at ¶ 17; Tr. 88:2-

13, 102:11-19, 124:13-15; Ex. B.)

Specifically, defendant notes

that on June 20, 2011, plaintiff prepared a written statement
recounting the events surrounding the Accident (the “June 2011
Statement”).

In his June 2011 Statement, plaintiff stated: “As

the driver pulled up, opened the doors, and put the stepstool down
so people can board, passengers jumped in the van.”

7

(Ex. B

(emphasis added); Tr. 126:12-127:6; Def. Mem. at ¶ 17.)

Plaintiff

argues that his earlier, June 2011 statements were not inconsistent
with his testimony because the statement that the driver “put the
stepstool down” referred to the point in time when the other
passengers boarded the van not when plaintiff boarded the van.
(Pl. Opp. at ¶ 3.)
Plaintiff also objects to his June 2011 Statement being
admitted to evidence because defendant did not lay the proper
foundation to support its admission.

(Id.)

The court finds that

defendant elicited testimony from plaintiff that laid a sufficient
foundation for admission of plaintiff’s June 2011 Statement into
evidence.

Further, plaintiff’s counsel did not object to June

2011 Statement being admitted into evidence at trial; therefore,
plaintiff’s objections to the admissibility of his June 2011
Statement have been waived.

(Tr. 126:5-10.)

See Fed. R. Evid.

103(a)(1); United States v. Yu-Leung, 51 F.3d 1116, 1120 (2d Cir.
1995) (“To be timely, an objection . . . must be made as soon as
the ground of it is known, or reasonably should have been known to
the objector.”) (citation and internal quotation marks omitted).
The court finds that plaintiff’s earlier statements,
including

his

June

2011

Statement

and

others,

regarding

the

presence of the stepstool at the time of the Accident are entitled
to greater weight on this point than his trial testimony. In

8

addition to plaintiff’s June 2011 Statement that the stepstool was
in place, the court finds that plaintiff did not report to the VA
Police Officer, Sgt. Paul Annitto, immediately after the Accident
that the stepstool was not in front of the Passenger Doors when he
boarded the Shuttle.

(See Ex. 1; Tr. 213:1-11.)

Nor did plaintiff

mention the stepstool as a factor in his Accident in his Notice of
Claim that he submitted to the VA in July 2010 (the “Notice of
Claim”).

(Ex.

A.)

Both

pieces

of

evidence

undermine

the

credibility of plaintiff’s testimony at trial that he did not see
the stepstool.
Plaintiff

argues

in

his

Opposition

to

Defendant’s

Proposed Findings of Fact and Conclusions of Law (ECF No. 60),
that no admissible evidence was presented as to why plaintiff did
not mention not seeing the stepstool to Sgt. Annitto or in his
Notice of Claim, and therefore, the court should find plaintiff’s
trial testimony about the stepstool as credible.
4.)

(Pl. Opp. at ¶

Plaintiff’s argument is without merit because he could have

explained the inconsistency at trial.

Again, plaintiff did not

object to Sgt. Annitto’s testimony at trial, nor did he object to
the Notice of Claim being admitted into evidence.
objections that plaintiff may have had are waived.

Thus, any
See Fed. R.

Evid. 103(a)(1); Yu-Leung, 51 F.3d at 1120 (“To be timely, an
objection . . . must be made as soon as the ground of it is known,

9

or reasonably should have been known to the objector.”) (citation
and internal quotation marks omitted).

The court finds that the

Notice of Claim was properly admitted under Fed. R. Evid. 801(d)(2)
as a statement made by plaintiff offered by defendant against
plaintiff.

(Ex. A.)

Further, the court finds that Sgt. Annitto

credibly testified at trial about the type of information he
typically included in a Uniform Offense Report, and that the
Uniform offense Report was properly admitted under Federal Rule of
Evidence 803(6).

(Ex. 1; Tr. 213:1-20.)

The court finds credible Mr. Guo’s and Mr. Williams’
testimony that their custom and practice was always to use the
stepstool when passengers were boarding or exiting the shuttle in
2008.

Further, plaintiff’s June 2011 Statement that “the driver

put the stepstool down” was closer in time to the Accident, and
plaintiff’s failure to mention the missing stepstool in his Notice
of Claim or to Sgt. Annitto on the day of the Accident, outweigh
his

trial

stepstool.

testimony

about

not

noticing

the

presence

of

the

The court finds plaintiff’s June 2011 Statement, made

three years after the Accident, is credible; and the court finds
plaintiff’s trial testimony, given eight years after the Accident,
is not credible.

The record is void of any evidence establishing

that the stepstool was moved before plaintiff entered the Shuttle.
Rather, Dewton Williams credibly testified that the stepstool was

10

in front of the Passenger Doors when plaintiff entered the Shuttle,
and that he would not have permitted the boarding process to
proceed if the stepstool had not been there.
183:16-184:12.)

(See Tr. 151:14-19,

Also, it follows that the stepstool would have

remained in front of the Passenger Doors as the boarding process
was ongoing.

Further, plaintiff did not mention the missing

stepstool to Sgt. Annitto, nor did he mention it in his Notice of
Claim.

Accordingly, the court finds that plaintiff’s testimony at

trial, that he did not see or notice the stepstool on the day of
the Accident, is not credible when viewed against the entire record
at trial.

(See Tr. 88:2-13, 102:11-19, 124:13-15.)

B. Evidence Concerning the Alleged Push by Mr. Guo
At trial, plaintiff testified that once a seat became
available, he started to board the Shuttle by stepping from the
ground onto the Shuttle’s first step.

He stopped on the first

step to wait for a passenger who was already seated on the Shuttle
to move his legs so plaintiff could move past him to the seat.
further

testified

that

Shuttle

driver

Lou

Guo

was

immediately to his right when he entered the Shuttle.

He

standing

(Tr. 102:1-

13, 111:2-25.) Plaintiff testified that while waiting on the first
step, he felt Mr. Guo push him from behind on his upper back near
his shoulder blade under his armpit.
127:8-17.)

(Tr. 112:1-24, 113:17-114:5,

Plaintiff also testified that after Mr. Guo pushed

11

him, his head moved forward and hit the Latch. (Tr. 112:25-113:2.)
The Court finds that plaintiff’s trial testimony is inconsistent
with his June 2011 Statement, where plaintiff claimed he was
injured because he was caused “to stride up and into the van,” and
made no mention of being pushed forward.

(Ex. B.)

Further,

immediately after the Accident, plaintiff did not tell Sgt. Annitto
that he had been pushed. (Ex. 1; Tr. 213:12-20.) Nor did plaintiff
mention anything about being pushed in his Notice of Claim.

(Ex.

A.)
Moreover, plaintiff’s testimony at trial about the push
was inconsistent with Mr. Guo’s and Mr. Williams’ testimony at
trial and with the report prepared by Sgt. Annitto.

Mr. Guo

testified that when Mr. Williams arrived at the shuttle loading
area,

he

gave

Mr.

Williams

the

passenger

manifest,

stepped

approximately seven to eight feet away from the Shuttle, and stood
toward the right front of the Shuttle while Mr. Williams resolved
the seating issue and finished loading the Shuttle.
49:22.)

(Tr. 48:18-

When plaintiff hit his head while entering the Shuttle,

Mr. Guo testified that he was standing to the right of the
Passenger Doors near the front passenger side of the Shuttle, and
Mr.

Williams

was

to

Mr.

Guo’s

left,

standing

closer

Passenger Doors and to plaintiff, than Mr. Guo was.

to

the

(Tr. 49:6-

52:21.) At trial, Mr. Guo further testified that he did not assist

12

plaintiff when he got onto the Shuttle and could not have done so
because he was standing a few feet away from plaintiff at the time.
(Tr. 57:8-14.)

Mr. Guo explained that because Mr. Williams and

Sgt. Annitto were standing closer to the Passenger Doors than he
was, his view of the Passenger Doors where plaintiff entered the
van was partially obstructed.

(Tr. 53:10-14.)

Mr. Guo testified

that he did not see plaintiff hit his head, but he did see plaintiff
get off of the Shuttle after hitting his head, part his hair, and
show a small cut.

(Tr. 54:16-23.)

The testimony of Mr. Williams was largely consistent
with Mr. Guo’s testimony.

Mr. Williams testified that the seating

issue was resolved when a passenger got off the Shuttle.

At that

point, Mr. Williams had the passenger manifest and he resumed the
boarding process.

Mr. Williams was standing to the right (when

facing the Passenger Doors) of the Passenger Doors.

Mr. Guo was

standing to his right, closer to the front of the Shuttle.
141:8-142:1,

144:1-19,

151:24-152:7,

178:9-179:2,

(Tr.

180:2-181:2,

185:8-18.)
Mr. Williams explained that he was preparing to call a
name from the manifest when plaintiff hurriedly got onto the
Shuttle.

Plaintiff made big strides, walked at a rapid pace, and

hurriedly stepped directly from the ground into the Shuttle.
Plaintiff did not use the stepstool even though it was available

13

and in place in front of the Passenger Doors.
164:16-18, 165:12-166:7, 181:24-182:13.)
Mr. Williams as he boarded.

(Tr. 161:2-18,

Plaintiff’s back was to

Mr. Williams stated he heard a noise

and realized plaintiff had hit his head on the area around the
frame of the Passenger Doors.

(Tr. 161:2-18.)

Mr. Williams

testified that neither he nor Mr. Guo rushed or hurried plaintiff
to get onto the Shuttle.

(Tr. 162:5-8, 164:12-15.)

Although the

Shuttle’s departure had been briefly delayed, Mr. Williams’ stated
that his priority was making sure the Shuttle was safely and
properly loaded.

(Tr. 162:23-163:2.)

Mr. Williams testified that

he did not observe any physical contact between plaintiff and Mr.
Guo.

(Tr. 164:19-21, 167:20-168:2, 181:18-20.)
Sgt. Annitto testified that he was called to investigate

the Accident and prepared a report thereafter.
11.)

(Ex. 1; Tr. 194:8-

In his report, Sgt. Annitto noted that as plaintiff “stepped

up into the van his head came in contact with the door hinge.”
(Ex. 1.)

He also noted that “Mr. Williams and Mr. Guo stated that

they did not observe Mr. Voccia receive the injury to his head.”
(Id.)

The Court finds that Sgt. Annitto’s report is consistent

with the testimony of both Mr. Guo, who noted that his line of
sight was blocked by Mr. Williams and Sgt. Annitto, and Mr.
Williams, who testified that, because he was standing behind
plaintiff, he heard, rather than saw, plaintiff hit his head. (Tr.

14

53:10-14, 54:21-23, 161:8-18.)

The court finds that Mr. Williams,

Mr. Guo and Sgt. Annitto were credible witnesses.

Accordingly,

the court finds that plaintiff’s trial testimony claiming he was
pushed up and into the Shuttle by Mr. Guo was not credible because
of the weight of the contrary evidence, specifically Sgt. Annitto’s
Uniform Offense Report, and the testimony of Sgt. Annitto, Mr.
Guo, and Mr. Williams, and because plaintiff failed to mention he
was pushed in his report to Sgt. Annitto and in his Notice of
Claim.
CONCLUSIONS OF LAW
I.

Plaintiff Did Not Establish By a Preponderance of the Evidence
that the United States Was Negligent
Under the FTCA, the United States is liable in the same
manner as a private person for the tortious acts or omissions of
its employees acting within the scope of their employment “in
accordance with the law of the place where the act or omission
occurred.”

28 U.S.C. § 1346(b)(1); see also Molzof v. United

States, 502 U.S. 301, 305 (1992) (“[T]he extent of the United
States’

liability

under

the

FTCA

is

generally

reference to state law.”) (citations omitted).

determined

by

Accordingly, a

federal court presiding over an FTCA claim must apply “the whole
law of the State where the act or omission occurred.”

Richards v.

United States, 369 U.S. 1, 11 (1962); see also Bernard v. United
States, 25 F.3d 98, 102 (2d Cir. 1994) (“State law applies to an

15

FTCA claim.”).

Further, state law applies to the alleged acts and

omissions of the United States in an FTCA claim in the same manner
it would apply to a private person. The United States may not be
held to a stricter standard of care than would apply to a private
defendant under similar circumstances, see 28 U.S.C. § 1346(b)(1),
nor be subject to strict liability. See Laird v. Nelms, 406 U.S.
797, 803 (1972).
Plaintiff’s alleged injury occurred within the State of
New York.

Accordingly, New York law applies.

To prevail on a

negligence claim under New York law, plaintiff must establish by
a preponderance of the evidence: “(1) a duty owed by the defendant
to the plaintiff, (2) a breach thereof, and (3) injury proximately
resulting therefrom.” Solomon v. City of New York, 66 N.Y.2d 1026,
1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 (1985); see also Khalil–
Mirhom v. Kmart Corp., No. 12–CV–5512 (ARR)(VVP), 2014 WL 173415,
at *4 (E.D.N.Y. Jan. 13, 2014); Berger v. Becker, 709 N.Y.S.2d
418, 418 (2d Dep’t 2000).
beneath

the

standard

of

“Negligence is conduct that falls

care

which

would

be

exercised

by

a

reasonably prudent person in similar circumstances at the time of
the conduct at issue.”

Thaqi v. Wal–Mart Stores East, LP, No. 09–

CV–755 (JMA), 2014 WL 1330925, at *4 (E.D.N.Y. Mar. 31, 2014)
(quoting Harper v. United States, 949 F.Supp. 130, 132 (E.D.N.Y.
1996)).

To establish a fact by a preponderance of the evidence,

16

a plaintiff must “prove that the fact is more likely true than not
true.”

See Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)

(quotation marks and citation omitted).
Plaintiff failed to carry his burden of proving that the
United States breached its duty of care.

Thus, the United States

was

liable

not

negligent,

and

therefore

not

for

plaintiff’s

injuries.
A. The United States Did Not Breach Any Duty Owed to Plaintiff
Under New York law, a transportation provider, like an
operator of a courtesy shuttle, has a duty to exercise reasonable
care for the safety of its passengers.

Bethel v. N.Y. City Transit

Auth., 92 N.Y.2d 348, 356, 703 N.E.2d 1214 (1998); Kelly v. Otis,
593

N.Y.S.2d

Greyhound

673,

Canada

673

(4th

Transp.

Dep’t

Corp.,

1993);

No.

see

also

03-cv-0344(SR),

Farley
2009

v.
WL

1851037, at *4 (W.D.N.Y. June 26, 2009); Hammer v. Acad. Bus Tours,
Inc., No. 00-CV-5317 (AJP), 2001 WL 1360226, at *2 (S.D.N.Y. Nov.
6, 2001).

Thus, the shuttle operator must provide a “reasonably

safe place to board and disembark” from the vehicle.

Kasper v.

Metro. Transp. Auth. Long Island Bus, 935 N.Y.S.2d 645, 646 (2d
Dep’t 2011); see also Lim v. Parent, 176 F. Supp. 2d 207, 209
(E.D.N.Y. 2001) (New York law requires common carriers to exercise
reasonable

care

to

ensure

the

safety

boarding and alighting from the vehicle.)

17

of

its

passengers

when

A common carrier, however, “has a duty to use such
additional care or to render such aid” for a passenger’s “safety
and

welfare

circumstances

as

is

and

reasonably

the

required”

passenger’s

by

the

existing

or

limiting

disability

condition, “provided that the common carrier’s employees knew or
should reasonably have known of the passenger’s disability” or
limiting condition.

Kasper, 935 N.Y.S.2d at 647.

See, e.g.,

Saidoff v. New York City Transit Auth., 963 N.Y.S.2d 157, 158 (2d
Dep’t 2013) (no duty to lower bus steps where 67-year-old plaintiff
did not request assistance and did not appear unable to negotiate
height differential between curb and bottom step); Santiago v. New
York City Transit Authority, 893 N.Y.S.2d 59, 60 (1st Dep’t 2010)
(no duty to lower platform for 57-year-old plaintiff who neither
asked the driver to do so, nor appeared unable to negotiate height
differential); Trainer v. City of New York, 838 N.Y.S.2d 512, 51213 (1st Dep’t 2007) (“In the absence of any evidence that plaintiff
appeared incapable of negotiating the distance, there was no duty
to lower the steps.”).

Moreover, a plaintiff cannot rely on a

carrier’s internal practice or rule to impose an additional duty
on

a

shuttle

operator,

absent

“evidence

that

the

policy

was

reflective of an industry standard or a generally-accepted safety
practice.”

Carlino v. Triboro Coach Corp., 803 N.Y.S.2d 105, 105-

06 (2d Dep’t 2005) (“The plaintiff’s reliance on the existence of

18

a company policy of the defendant requiring the lowering of a bus
for elderly passengers, and the driver’s alleged failure to comply
with the policy, does not state a cause of action upon which relief
can be granted. The plaintiff presented no evidence that the policy
was reflective of an industry standard or a generally-accepted
safety practice.”); see also Lovato v. New York City Transit Auth.,
855 N.Y.S.2d 685, 686 (2d Dep’t 2008) (“[T]he plaintiff failed to
establish that the defendant’s rules imposed a duty owed to her by
the bus driver, as she did not introduce any testimony regarding
industry standards and generally-accepted practices.”).
Here, plaintiff’s claim that the United States breached
its duty by failing to provide a stepstool to assist him while
boarding the Shuttle fails as a matter of law and on the facts.
As discussed above, based on the evidence at trial, plaintiff
failed to establish by a preponderance of the evidence that the
stepstool was not in front of the Passenger Doors as plaintiff was
boarding the Shuttle.

Nor did the preponderance of trial evidence

establish that the United States breached its duty to provide a
safe means of boarding the Shuttle.
The record is void of any evidence indicating that the
Shuttle

and

the

boarding

conditions

were

unsafe.

Further,

plaintiff presented no evidence of any industry standard requiring
the use of a stepstool to provide a safe means of boarding and

19

alighting the Shuttle. Notably, plaintiff did not offer any expert
testimony concerning these matters.

Therefore, plaintiff has

failed to carry his burden of establishing that the United States
had a duty to provide a stepstool for passengers entering and
exiting the van.
Nor is this a case in which the United States owed any
additional duty to plaintiff.

There was no evidence that there

were unsafe conditions on the day of the Accident that imposed an
additional duty on defendant.

Further, no evidence was presented

establishing that the United States knew or reasonably should have
known that plaintiff would be unable to board the Shuttle without
assistance.

In fact, plaintiff was 52 years old at the time of

the Accident and acknowledges that he did not have any visual or
physical
Shuttle.

impairments

that

affected

his

ability

to

board

the

Accordingly, the United States had a duty to exercise

reasonable care in ensuring a safe means for plaintiff to board
the Shuttle.

The court finds that defendant acted with reasonable

care under the circumstances.
Furthermore, the credible trial evidence establishes
that although not required, there was, in fact, a stepstool placed
in front of the Passenger Doors when plaintiff entered the Shuttle.
As set forth in the court’s findings of fact, plaintiff’s June
2011 Statement and the testimony of Lou Guo and Dewton Williams

20

establish that the stepstool was in front of the Passenger Doors
as plaintiff boarded the Shuttle.

Although plaintiff initially

testified at trial that he did not see the stepstool at all on the
day of the Accident, when confronted with his June 2011 Statement
where he noted that: “As the driver pulled up, opened the doors,
and put the stepstool down so people can board, passengers jumped
in the van,” plaintiff conceded that at the time of his June 2011
Statement, he noted that the stepstool was in place for boarding.
(Ex. B.)
Accordingly, the court finds that the credible trial
evidence establishes that the United States did not breach a duty
to plaintiff.

Although the United States had no duty to provide

a stepstool to enter the Shuttle, the credible evidence at trial
establishes that a stepstool was provided.

Moreover, there is no

evidence that plaintiff had physical limitations which were, or
should have been apparent to the United States, and thus there was
no additional duty of care.

Therefore, the United States did not

breach a duty to plaintiff and was not negligent.
II.

The Court Lacks Subject Matter Jurisdiction to Consider
Plaintiff’s Negligent Assault/Battery Claim
“Federal courts do not have subject matter jurisdiction
over claims falling within one of the exceptions to the FTCA’s
waiver of sovereign immunity.”

Haber v. United States, No. 10–

CV–5443 (SJF)(ARL), 2012 WL 92499, at *4 (E.D.N.Y. Jan. 10, 2012).

21

One such exception, commonly referred to as the intentional tort
exception, excludes from the FTCA “[a]ny claim arising out of
assault [or] battery. . . .”

28 U.S.C. § 2680(h); United States

v. Shearer, 473 U.S. 52, 54 (1985) (The FTCA’s “waiver of sovereign
immunity does not apply to any claim arising out of assault or
battery.”) (citing 28 U.S.C. § 2680(h)) (modifications omitted).
This exception “does not merely bar claims for assault or battery;
in sweeping language it excludes any claim arising out of assault
or battery.”

Shearer, 473 U.S. at 55 (emphasis in original).

Therefore,

plaintiff

a

cannot

circumvent

this

exception

by

labeling a claim as one of negligence when, in fact, it is an
intentional tort claim.

Id. (explaining that “[n]o semantical

recasting of events” can transform a tort claim into a negligence
claim); Johnson by Johnson v. United States, 788 F.2d 845, 854 (2d
Cir.

1986)

(“Courts

have

not

countenanced

such

attempts

to

transform assault and battery claims into negligence actions.”);
Miele by Miele v. United States, 800 F.2d 50, 52 (2d Cir. 1986)
(“Allowing

claims

against

the

government

that

are

stated

in

negligence, but actually arise from an assault and battery would
defeat Congress’ purpose to bar suits against the government for
injuries caused by a government employee’s commission of an assault
and battery.”) (emphasis in original).
Plaintiff claims that the United States was negligent

22

because, in an effort to assist him while boarding, Lou Guo pushed
him, which caused him to be injured. Plaintiff further contends
that he is not claiming that Mr. Guo intended to injure him when
he allegedly pushed plaintiff as he was boarding the Shuttle.

If

any such physical contact actually occurred between Lou Guo and
plaintiff, plaintiff’s claim would sound in “negligent assault” or
“negligent battery.”

Under New York law, however, there is no

cause of action for negligent touching—that is “negligent assault”
or “negligent battery.”

It is well-settled that “once intentional

offensive contact has been established,” the plaintiff’s cause of
action is one of intentional tort rather than negligence.

Sawyer

v. Wight, 196 F. Supp. 2d 220, 228 (E.D.N.Y. 2002) (“New York does
not recognize negligent battery.

Accordingly, ‘once intentional

offensive contact has been established, the actor is liable for
battery

and

not

negligence.’”)

(citations

and

modifications

omitted); Oteri v. Vill. of Pelham, 954 N.Y.S.2d 171, 172 (2d Dep’t
2012); Schetzen v. Robotsis, 709 N.Y.S.2d 193, 194 (2d Dep’t 2000)
(internal citations omitted) (quoting Wertzberger v. City of New
York, 680 N.Y.S.2d 260, 261 (2d Dep’t 1998)) (“It is well settled
that no cause of action to recover damages for negligent assault
exists in New York, because ‘once intentional offensive contact
has been established, the actor is liable for assault and not
negligence.’”); Wrase v. Bosco, 706 N.Y.S.2d 434, 435 (2d Dep’t

23

2000).
Although plaintiff attempts to cast his claim as a
negligence claim, he has alleged that he was pushed—which, if true,
would constitute “intentional offensive contact.”

Sawyer, 196 F.

Supp. 2d at 228. Therefore, the court finds that plaintiff’s claim
that he was injured because Lou Guo pushed him is an intentional
tort claim.

Consequently, even if there were a preponderance of

evidence that Mr. Guo pushed plaintiff, which there is not, the
court

would

lack

jurisdiction

to

consider

plaintiff’s

claim

because it is barred by the FTCA’s intentional tort exception.
See 28 U.S.C. § 2680(h); Shearer, 473 U.S. at 54.
Moreover, even if the court could consider plaintiff’s
negligent assault or negligent battery claim, the court finds that
plaintiff has not carried his burden of proving, by a preponderance
of the evidence, that Lou Guo pushed him.

As discussed in greater

detail above, Lou Guo credibly testified that he did not push
plaintiff; Dewton Williams credibly testified that he was closer
to plaintiff than Lou Guo, and that he did not see Lou Guo push
plaintiff.

Further, plaintiff did not report to Sgt. Annitto,

immediately after Accident, that Lou Guo pushed him, nor did he
report that he was pushed in his Notice of Claim.

Accordingly,

the court finds that plaintiff’s testimony regarding Mr. Guo’s
alleged push was not credible, and he has not carried his burden

24

in proving that Lou Guo pushed him.
CONCLUSION
Based

upon

the

foregoing

findings

of

fact

and

conclusions of law, the court concludes that the United States was
not negligent, and therefore not liable for plaintiff’s injuries.
The Clerk of the Court is respectfully requested to enter judgment
in favor of defendant and close this case.

SO ORDERED.
Dated:

March 31, 2017
Brooklyn, New York

_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge

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