Cabrera v. United States

Dionicio Cabrera, Plaintiff, v. United States Of America, Defendant.

1:18-cv-07270 (SDA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 9, 2020

OPINION AND ORDER

STEWART D. AARON, United States Magistrate Judge:

Plaintiff, Dionicio Cabrera ("Plaintiff" or "Cabrera"), filed suit against defendant, United States of America (the "United States" or "Defendant"), pursuant to the Federal Torts Claim Act (the "FTCA"), 28 U.S.C. §§ 1346(b) and 2671, et seq., for alleged injuries he suffered in a motor vehicle accident on August 7, 2015. Cabrera alleges that Shawnté Lorick ("Lorick"), an employee of the United States Probation Office for the Southern District of New York, who was driving a vehicle owned by the United States, collided with the vehicle that Cabrera was driving and that Lorick was negligent in the operation of her vehicle, causing the accident and causing Cabrera to suffer serious injuries. In turn, Defendant contends that Cabrera's alleged injuries were not caused by the August 7, 2015 motor vehicle accident and that, in any event, his injuries from the accident are not "serious" under the applicable law.

The parties consented to the jurisdiction of a United States Magistrate Judge, pursuant to 28 U.S.C. § 636, and the Court conducted a bench trial from October 5, 2020 through October 7, 2020. Having considered all the evidence and assessed the credibility of the witnesses, the Court makes the following findings of fact and reaches the following conclusions of law pursuant to Federal Rule of Civil Procedure 52.

For the reasons set forth below, the Court finds that Cabrera has not proven the elements of his claim by a preponderance of the evidence. Thus, judgment shall be entered in favor of the United States.

FINDINGS OF FACT¹

I. The Accident

On the morning of August 7, 2015, a U.S. government-owned 2011 black Ford Explorer being driven by Lorick came into contact with the rear of a 2012 Toyota sedan being driven by Cabrera at or near a traffic light at the intersection of Louis Nine Boulevard and Boston Road, in the Bronx, New York. (See JPTO, Stip. ¶ 11; Trial Tr. at 11-12; Pl.'s FOF ¶¶ 1, 3, 4-5, 7-8; Def.'s FOF ¶¶ 1, 3-4, 7; Lorick Decl. ¶¶ 3-4, 9; JX 1 (Accident Report).)² At the time of the August 7, 2015 motor vehicle accident, Cabrera was working as a taxicab driver. (JPTO, Stip. ¶ 12; Tr. at 13.) The vehicle driven by Cabrera was owned by Neirys Wolmart ("Wolmart"), who was the policyholder on the insurance for the vehicle, provided by American Transit Insurance Company ("American Transit"). (JPTO, Stip. ¶ 13.) At the time of the August 7, 2015 motor vehicle accident, ProbationOfficer Lorick was operating a vehicle in the course of her employment by the United States. (Id. ¶ 14.)

American Transit paid for the repairs to Wolmart's vehicle necessitated by the accident, totaling $5,222.10. (JPTO, Stip. ¶ 16.) American Transit also paid $27,477.28 for Cabrera's medical bills for treatment purportedly relating to the motor vehicle accident. (Id. ¶ 17.) Cabrera is not seeking any damages for lost income, past medical expenses or property damage. (Id. ¶ 19.)

Cabrera, who testified at trial with the aid of a Spanish interpreter, stated that he was traveling on Louis Nine Street and that, before he got to the intersection, the car in front of him stopped so that a police car could go by. (See Tr. at 12.) He further testified that, while his vehicle was stopped, Lorick's vehicle ran into the back of him. (See id.) Cabrera testified that, "[a]fter [he] stopped [he] fe[lt] this huge sound like a bomb, a big boom, something that destroyed the back of [his] car." (Id.)

Lorick states that she had been completely stopped at the red traffic signal and that, a few seconds after she began to move forward (when the signal turned green), Cabrera's vehicle stopped short, causing her to collide with it, even though she had engaged her brakes. (Lorick Decl. ¶¶ 5-9.) Lorick explained that her vehicle was the third in the line of stopped cars at the traffic light and that she was directly behind Cabrera's vehicle. (Lorick Decl. ¶¶ 5-6; see JX 1 at USA00371 (Accident Report).) After the traffic signal turned green, and the vehicles in front of her began to proceed straight through the intersection, she began to move forward as well. (Lorick Decl. ¶ 7; see JX 1 at USA00371.) Then, after a few seconds, before either her vehicle or Cabrera's vehicle reached the intersection, Lorick saw the first car in the line stop short, causing Cabrera to stop short suddenly and come to a complete stop. (Lorick Decl. ¶ 8; see JX 1 atUSA00371.) Lorick engaged her brakes, but was unable to stop and the front bumper of her vehicle made contact with the rear bumper of Cabrera's vehicle. (Lorick Decl. ¶ 9.) The first car in the line drove off and did not remain at the scene of the accident. (Lorick Decl. ¶ 9; see JX 1 at USA00371.)

The police report included as part of Plaintiff's Exhibit 1 corroborates Lorick's account that the accident occurred shortly after the light changed from red to green. It states: "At TPO,³ D₁ states that when the traffic signal turned green, the vehicle in front of him started to go, then stopped short, causing him to stop short. D₁ states that D₂ then rear ended him. D₂ states the vehicle in front of D₁ stopped abruptly causing D₁ to stop abruptly. D₂ states she then rear ended D₁."⁴ (Pl.'s Ex. 1 at 5.) When asked about this document by me at trial, Cabrera testified that he told the police officer the words that are attributed to D₁ in this document. (See Tr. at 93.)

Lorick contends that the impact from the collision was "relatively light." (Lorick Decl. ¶ 10.) Lorick estimates that, prior to engaging her brakes, her vehicle's "speed was likely about five miles per hour." (See id. ¶ 9.) The photographs depicting the damage to the vehicles that were taken by both Cabrera and Lorick show damage to the rear driver's side of Cabrera's vehicle and damage to the front passenger side of Lorick's vehicle. (See JX 10 (Lorick Photos); JX 11 (Plaintiff Photos).)

Cabrera testified that, at the time of impact, he was wearing his seat belt. (Tr. at 16.) He further testified that, on impact, his "body went forward, then came backward," the "seat belttwisted [his] left shoulder," and his "knees hit the dashboard of the car and [his] knees twisted." (Id. at 15-16.) Cabrera did not lose consciousness or have any bleeding from the accident. (Cabrera Dep. 65:7-10;⁵ Tr. at 42.) Less than 15 seconds after the accident, Cabrera exited his vehicle to assess the damage. (Cabrera Dep. 65:11-16; Tr. at 44.) At approximately 10:15 a.m., the police arrived on the scene and took an accident report. (JX 1 (Accident Report); Lorick Decl. ¶ 14; Tr. at 12-13.) No ambulance or other medical services were called to the scene of the accident, and Cabrera did not report any injuries to the police officer. (Lorick Decl. ¶ 15; Cabrera Dep. 65:24-66:15; Tr. at 44.) Following the accident, Cabrera drove the car he was operating to a nearby garage, approximately 10 to 15 minutes away from the scene of the accident. (Cabrera Dep. 70:10-13; Tr. at 44-45.) He then hailed a taxi cab to his home. (Cabrera Dep. 76:13-15.)

Cabrera testified that, prior to the August 7, 2015 accident, he did not have any problems with his neck or back. (Tr. at 14.) He further testified that, as a result of the accident, he had pain in his legs, back and neck. (Id. at 47.) In addition, Cabrera testified that, prior to the August 7, 2015 accident, he did not have any pain in either of his knees. (Id. at 96.) He further testified that he now has pain in his knees "[a]ll the time" and "[a]ll over," and the he takes Tylenol for the pain and applies a "jelly on [his] knees, like Bengay." (Id. at 33.) Cabrera stated that, for the first 30 days after the accident, other than going for medical visits, he was not doing any other activities, except that he "sometimes" would go for a walk. (Tr. at 20.) He lives on the fourth floor and there is no elevator in his building, so he needs to climb and descend four flights of stairs when he enters and leaves his building. (See id.)

II. Plaintiff's Medical Condition

A. Plaintiff's Medical Treatment

On the evening of August 7, 2015 (the day of the accident), Cabrera took a taxi to St. Barnabas Hospital in the Bronx. (See Tr. at 46.) He complained of leg and back pain to the triage nurse (JX 4 at SBH00009-10 (St. Barnabas Records)), but left the hospital before being evaluated by a physician. (Tr. at 46.)

On August 8, 2015, Cabrera was seen at Bronx Lebanon Hospital, where he complained of back and leg pain arising from a rear-end motor vehicle collision the previous day. (See JX 5 at BL00017, 19, 22, 28, 30 (Bronx Lebanon Records); Pl.'s FOF ¶ 23; Def.'s FOF ¶ 17.) An x-ray of Cabrera's cervical spine taken that day showed mild degenerative changes with disc space narrowing at the C5-C6 level. (JX 5 at BL00034-35.) He was discharged home with a prescription for Ibuprofen (400 mg). (Id. at BL00020, 53.)

On August 14, 2015, Cabrera was seen by Glen Colodny, D.C., a chiropractor at Continental Medical, P.C., in the Bronx, New York, where he complained of "cervical pain, low back pain, thoracic pain, headaches, bilateral shoulder pain and left leg pain." (JX 6 at CM 00066 (Continental Medical records); see Pl.'s FOF ¶ 24; Def.'s FOF ¶ 19.) Cabrera was referred to a physiatrist and was recommended to ice areas of pain. (JX 6 at CM 00068.)

On August 25, 2015, Cabrera saw physiatrist DeLys St. Hill, M.D., at Continental Medical. (JX 6 at CM00078-81; see Def.'s FOF ¶ 21.) At that visit, Cabrera's chief complaints were: "Cervical/Neck pain," "Thoracic pain," "Low back pain with pain into the bilateral legs," "Bilateral shoulder pain" and "Headaches." (JX6 at CM00078.) Upon examination of Cabrera's lower extremities, Dr. St. Hill noted that, "All joints of the lower extremities show range of motion waswithin normal limits. Palpation...