Deutschmann v. United States of America

Filing 48

MEMORANDUM OF THE COURT. Signed by Magistrate Judge John S. Bryant on 2/6/12. (rd)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOSHUA M. DEUTSCHMANN,

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Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

NO. 3:10-0713
Magistrate Judge Bryant

MEMORANDUM
This is a personal injury and property damage action
brought under the Federal Tort Claims Act, 28 U.S.C. § 2671, et
seq., arising from a traffic accident that occurred on August 25,
2009, in Clarksville, Montgomery County, Tennessee.

Upon consent

of the parties, this case was referred by the District Judge to the
undersigned Magistrate Judge to conduct all further proceedings,
including entry of a final judgment (Docket Entry No. 15).
This case was tried without a jury on July 19, 2011.
Following

the

filing

of

the

trial

transcript,

both

parties

submitted proposed findings of fact and conclusions of law.
This memorandum shall be deemed the Court’s findings of
fact and conclusions of law in accordance with Rule 52(a)(1),
Federal Rules of Civil Procedure.
Findings of Fact
This traffic accident occurred at or near 111 Cunningham
Lane in Clarksville, Tennessee, on the afternoon of August 25,
2009.

Immediately

before

the

accident,

plaintiff

Joshua

M.

Deutschmann was driving in a generally westbound direction on
Cunningham Lane, just west of its intersection with Highway 41A,
also known as Ft. Campbell Boulevard.
The other vehicle involved in this accident was a Ford
van owned by the United States Army.

This van was being driven by

Sgt. Jae Park who was on active duty with the United States Army,
stationed at nearby Ft. Campbell.

It is undisputed that Sgt. Park

at all relevant times was driving this van on Army business and in
the course and scope of his employment by the United States.

Also

in the Army van was Sgt. 1st Class Larry Jarrett, who was riding in
the right front passenger seat.
Shortly before the accident, Sgt. Park and Sgt. Jarrett
had stopped at the RadioShack then located on the south side of
Cunningham Lane.

Having finished their business there, they

reentered the van and drove to the private driveway where the
RadioShack parking lot exited into Cunningham Lane. At the time of
the accident, Sgt. Park was attempting to cross the four traffic
lanes of Cunningham Lane from the private drive serving the
RadioShack on the south to another private drive located directly
across Cunningham Lane to the north.

At impact, the front of Mr.

Deutschmann’s car struck the right side of the Army van just
forward

of

the

front-seat

passenger’s

door.

This

collision

occurred in the right-hand westbound lane of Cunningham Lane.

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The weather on the date of the accident was clear and
dry, and neither driver claims to have been hindered by any
impairment to his visibility.

Also, excessive speed does not

appear to have been a factor in this accident.

Mr. Deutschmann

testified that he was probably driving at about 25 miles per hour
immediately before the accident, and Sgt. Jarrett, who saw Mr.
Deutschmann’s

car

just

before

the

impact,

estimated

that

Deutschmann was driving at between 30 and 35 miles per hour.
According to the testimony of the policeman, Officer Cronk, the
posted speed limit for Cunningham Lane at this location is 35 miles
per hour, so there is no claim that either vehicle was speeding.
Sgt. Park testified that as he reached the driveway at
the edge of the RadioShack parking lot he looked both ways, found
traffic to be clear, and then attempted to cross Cunningham Lane to
enter the private drive on the north side (Trial Transcript, page
143 at lines 5-6).

Sgt. Park further testified that as he got

slightly over halfway across Cunningham Lane, Sgt. Jarrett, seated
in

the

front

passenger

seat,

started

saying,

“go,

go,

go.”

According to Sgt. Park, as Sgt. Jarrett said the third “go,” Mr.
Deutschmann’s car struck the van on the right side near the front.
Sgt. Park estimated his speed as he crossed Cunningham Lane as
“pretty slow,” and “around 10 miles an hour or so.”

Sgt. Park

testified that he never saw Mr. Deutschmann’s oncoming car

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before it struck the side of the Army van (Trial Transcript, page
144 at lines 10-11).
Mr.

Deutschmann

testified

that

shortly

before

this

accident he had been driving generally southbound on Highway 41A
following a lunch at a McDonald’s

located a short distance north

of Cunningham Lane. As Mr. Deutschmann approached Cunningham Lane,
he got into the right-hand lane and then entered a turn lane
connecting Highway 41A with Cunningham Lane.

Mr. Deutschmann

testified that, as he completed this right turn and subsequent
merger into the traffic lanes of Cunningham Lane, he looked back
over his left shoulder on two different occasions.

On the first

occasion, Mr. Deutschmann was a little over halfway through the
merge lane.

He testified as follows:

I remember I entered the merge lane. A little over
halfway or so, I looked left, over at the
intersection, to make sure no traffic was coming
through to the left.
(Trial Transcript, page 40 at line 24 to page 41 at line 1). Mr.
Deutschmann testified that he thereafter looked back at the roadway
ahead and noticed the Army van sitting at the entrance of the
RadioShack driveway.

He testified as follows:

After I checked the stop light I looked back in
front of me and noticed the van was sitting at the
private driveway, the RadioShack, the exit.
Mr. Deutschmann further testified that soon thereafter he looked
away from the roadway ahead a second time to be sure that he could

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safely merge into the traffic lane to his left.

He testified as

follows:
I looked back across my shoulder to the left to
make
sure
nobody
was
coming
through
the
intersection last minute, so that I could get into
this left-hand lane.
Mr. Deutschmann testified that when he again returned his gaze to
the roadway ahead, he suddenly saw the Army van in the roadway
“maybe

a

car

length”

ahead

“about

Transcript, page 43 at lines 15 to 20).

a

second

away.”

(Trial

Mr. Deutschmann testified

that he immediately hit his brakes, but was unable to avoid
striking the van.1
Mr. Deutschmann testified that immediately before impact
he threw his right arm up in front of his face to shield his face
from the air bag, which deployed from the impact of the accident.
Mr. Deutschmann testified that the force of the air bag deployment
knocked his right arm into his face.
Following the accident, Mr. Deutschmann telephoned his
father, who came to the scene of the accident with a trailer.

Mr.

Deutschmann helped his father load his car onto the trailer,
although he testified at trial that his right arm was “quite numb”
immediately after the accident.

Mr. Deutschmann’s father dropped

him off at the emergency room of the Gateway Hospital where they
checked out his neck and back, “did maybe an x-ray or two,” and

1

A car traveling at 25 miles per hour covers 36.67 feet in
one second.
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released him to go home.

He testified that he also had a

neurologist look at his right arm, and that the doctor said that
the numbness “was probably just from the shock of the air bag.”
Mr. Deutschmann testified that his right arm and shoulder continued
to be sore for a few days following the accident and that he
returned to the neurologist, Dr. George Lu.

However, Dr. Lu did

not prescribe any medication for Mr. Deutschmann’s injury.

Mr.

Deutschmann testified that he “couldn’t come back to work for a
couple of days,” but when he did return to work he was “mainly
doing light work, such as riding mowers.”

(Mr. Deutschmann was

employed at the time with his father’s lawn care service.”
Mr. Deutschmann testified that he avoided doing any
strenuous overhead or lifting type work with his right shoulder for
“about a month or two.”

Then, on September 18, 2009, as Mr.

Deutschmann was at home attempting to remove a box from the top of
his closet, he felt a sudden stabbing pain that “felt like somebody
was stabbing me in the back with a knife.”
fell on a small table in his bedroom.

He dropped the box and

Mr. Deutschmann went to the

emergency room that evening where he was treated for a bloody nose
and underwent certain x-rays.
Mr. Deutschmann saw Dr. George Lu about a week later on
September 25, 2009, and Dr. Lu’s physical examination confirmed
pain with downward traction of Mr. Deutschmann’s right shoulder.
Dr. Lu attributed this pain to the air bag deployment during the

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earlier automobile accident.

Dr. Lu referred Mr. Deutschmann for

a MRI.
The MRI performed on September 30, 2009, revealed a
partial

avulsion,

or

tearing,

of

Deutschmann’s right shoulder.

the

deltoid

muscle

in

Mr.

Based upon the complaints and

medical history provided by Mr. Deutschmann, Dr. Lu concluded that
this muscle tear is likely the result of the motor vehicle accident
that occurred on August 25, 2009.
Upon referral from Dr. Lu, Mr. Deutschmann saw Dr. Keith
Starkweather,

an

orthopedist.

Dr.

Starkweather

recommended

physical therapy, and Mr. Deutschmann testified that he went to
physical therapy “maybe three or four months.”

According to Mr.

Deutschmann, the physical therapy helped him “a great deal.”
By the time of trial, Mr. Deutschmann had returned to
work at his father’s lawn care business on “full duty.”

He

testified at trial that although he is able to do everything
required of him in his work, occasionally, for example, if he tries
to get leverage on a wrench at a certain angle, “it causes quite a
bit of pain in [his] arm still.”
Dr.

Lu

testified

that

the

total

amount

of

medical

expenses incurred by Mr. Deutschmann for injuries received in this
accident amounted to $15,653.93, and that these expenses were both
reasonable and necessary (Lu deposition, Exhibit 8 and pages 1011).

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According

to

the

plaintiff,

the

value

of

his

car

immediately prior to the accident was $1,400.00 and after the
accident, as a result of the damage, it was sold for a salvage
value of $108.50. Finally, plaintiff’s employer and father, Harold
Deutschmann, testified that, as a result of the accident and the
subsequent episode involving lifting the box from the top of the
closet, Mr. Deutschmann missed a total of 110.5 hours from work
which, when multiplied times his $13.00 hourly rate, amounts to a
total of $1,436.50 lost wages.
Conclusions Of Law
The Federal Tort Claims Act adopts the substantive law of
the

state

where

the

alleged

tort

occurred

questions of liability and damages.

as

it

relates

to

Myers v. United States, 17

F.3d 890, 899 (6th Cir. 1994).
In Tennessee, a plaintiff asserting a negligence claim is
required to prove the following elements by a preponderance of the
evidence:

(1)

a

duty

of

care

owed

by

the

defendant

to

the

plaintiff; (2) conduct by the defendant falling below the standard
of care amounting to a breach of the duty; (3) an injury or loss;
(4) causation in fact; and (5) proximate causation. Rice v. Sabir,
979 S.W.2d 305, 308 (Tenn. 1998).
Tennessee vehicle statutes impose certain duties on
drivers within the state.

Specifically, Tennessee Code Annotated

section 55-8-131 provides as follows:

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Vehicle entering highway from private
driveway. – The driver of a vehicle about
or cross a highway from a private road or
shall yield the right-of-way to all
approaching on the highway.

road or
to enter
driveway
vehicles

In addition, Tennessee Code Annotated section 55-8-136(b) imposes
a duty on every driver of a motor vehicle to exercise due care to
avoid colliding with any other motor vehicle, including the express
duties of “maintaining a safe lookout,” and “devoting full time and
attention to operating the motor vehicle.”
The Court concludes from the evidence that Sgt. Park was
guilty of failing to yield the right-of-way as he attempted to
cross the four lanes of Cunningham Lane from the RadioShack parking
lot on the south to another private driveway directly across
Cunningham Lane to the north.

Mr. Deutschmann, driving generally

westbound on Cunningham Lane, clearly had the right-of-way and Sgt.
Park had a duty to yield to the plaintiff.

In addition, from the

available evidence, the Court finds that Sgt. Park failed to comply
with the duty to keep a proper lookout ahead while driving the Army
van.

Specifically,

Sgt.

Park

testified

that

he

never

saw

plaintiff’s car prior to the impact although he concedes that there
would have been no obstruction to his vision.

This conclusion is

further supported by the deposition testimony of Sgt. Jarrett, who
testified that Sgt. Park was “looking left” as he started to pull
out of the RadioShack parking lot (Jarrett deposition, page 21 at
lines 12-13).

The Court further finds that Sgt. Park’s failure to

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yield the right-of-way to Mr. Deutschmann’s car was a proximate
cause of this accident, since had Sgt. Park yielded, the Army van
would not have been in Mr. Deutschmann’s lane of travel at the time
of impact.

Defendant United States has asserted as an affirmative
defense the comparative fault of plaintiff Deutschmann.

The

defendant asserts that plaintiff Deutschmann failed to keep a
proper lookout ahead and therefore failed to stop his car in time
to avoid colliding with the side of the Army van.

This assertion

is based primarily upon the deposition testimony of Sgt. Jarrett.
When asked what he saw regarding Mr. Deutschmann’s car just before
the impact, Sgt. Jarrett testified as follows:
I noticed that the driver was looking down at his
cell phone just prior to impact. Whether he was
trying to make a phone call or text, doing
something with his cell phone.
(Jarrett deposition, page 24 at lines 18-21).
Plaintiff Deutschmann at trial denied that he had used
his cell phone between the time he left McDonald’s on Highway 41A
and the time of the accident (Trial Transcript, page 49 at lines
16-20).

This testimony directly contradicts the testimony of Sgt.

Jarrett. Arguing that this credibility issue should be resolved in
favor of the testimony of Sgt. Jarrett, the United States pointed
to the lack of any tire skid marks by plaintiff Deutschmann’s car
before impact, suggesting that he was distracted and failed to
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apply his brakes in time to cause skid marks.

Additionally, the

United States offered considerable evidence derived from various
social networking internet sites in an attempt to impeach Mr.
Deutschmann’s

credibility

generally.

In

response,

plaintiff

pointed out that his car was equipped with antilock brakes, which
are designed to maximize braking effect by preventing tire skids.
In addition, plaintiff argued that if Sgt. Jarrett in fact saw Mr.
Deutschmann using his cell phone immediately before this collision,
that information reasonably should have been provided to Officer
Derrick Cronk, the Clarksville police officer who completed the
accident report.

Officer Cronk testified that if he had been told

that plaintiff Deutschmann had been distracted by his cell phone
just before this accident, he would have included that information
in his accident report.

However, the report contains no such

information (Trial Transcript, page 22 at line 12 to page 24 at
line 9).
Given this conflict between the testimony of plaintiff
Deutschmann and Sgt. Jarrett, and considering all evidence in the
case, the Court finds that the United States has failed to carry
its burden to establish by a preponderance of the evidence that Mr.
Deutschmann was using a cell phone in the seconds immediately
before this accident.
Nevertheless, the Court finds from Mr. Deutschmann’s own
testimony that he breached his duty to keep a proper lookout ahead

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in the seconds immediately before this accident.

In the testimony

quoted above in this memorandum, Mr. Deutschmann testified that he
looked away from the roadway ahead on two separate occasions in the
seconds just before this accident.

He testified that he did so on

the first occasion “to make sure no traffic was coming through [the
intersection of Highway 41A and Cunningham Lane] to the left.” Mr.
Deutschmann testified that when he looked back at the roadway ahead
he noticed the Army van “was sitting at the private driveway, the
RadioShack, the exit.”

Mr. Deutschmann further testified that he

looked away a second time “to make sure nobody was coming through
the intersection last minute, so that I could get into this lefthand lane.”

When he once again returned his gaze to the roadway

ahead, he testified that he suddenly saw the Army van in the
roadway “maybe a car length” ahead, “about a second away.”

Mr.

Deutschmann testified that although he immediately applied his
brakes, he was unable to stop in time to avoid striking the Army
van.

From this testimony, the Court finds that Mr. Deutschmann

failed to keep a proper lookout ahead of his car and that this
failure combined with that of Sgt. Park to cause and contribute to
this accident.
Under Tennessee’s comparative negligence law, so long as
a plaintiff’s negligence is less than the negligence of the
defendant, the plaintiff may recover, but the amount of plaintiff’s
damages are to be reduced in proportion to the percentage of the

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total negligence attributable to the plaintiff.
Balentine, 833 S.W.2d 52, 57 (Tenn. 1992).

McIntyre v.

From the evidence in

this case, the Court finds the comparative fault between Sgt. Park
and plaintiff Deutschmann to be: Sgt. Park 80% and plaintiff
Deutschmann 20%.

As the basis for this finding, the Court notes

that Sgt. Park’s failure to yield resulted in the Army van being
where it should not have been at the time of the collision – in
plaintiff Deutschmann’s lane of travel.

In contrast, plaintiff

Deutschmann’s car was in his rightful lane of travel at the time
that the accident occurred.
From the evidence in this record, the Court finds that
plaintiff Deutschmann’s total damages resulting from this accident
are as follows:
Reasonable and necessary medical expenses - $15,653.93
Pain and suffering
- $20,000.00
Property damage to his car
- $ 1,291.50
Loss of wages
- $ 1,462.50
TOTAL DAMAGES

- $38,407.93

After reducing the amount of this total by 20%, the percentage
of fault allocated to plaintiff Deutschmann, the Court finds that
plaintiff Deutschmann shall have and recover judgment against
defendant United States in the amount of $30,726.35.
An order of judgment consistent with this memorandum is
entered herewith.
It is so ORDERED.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge
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