United States District Court, N.D. California, San Jose Division
October 6, 2005.
ANTHONY GULIZIA, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
The opinion of the court was delivered by: PATRICIA TRUMBULL, Magistrate Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter was tried before the court for a period of two days
commencing on August 15, 2005. Plaintiff Anthony Gulizia has
brought an action against the United States pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 1346(b), for damages
incurred as the result of an April 5, 2000 accident in which a
United States Postal Service employee, while driving a postal
service vehicle, collided with a bicycle ridden by plaintiff. Mr.
Gulizia was represented by his counsel, Franklin Bondonno, and
the United States (hereafter the "government") was represented by
its counsel, Assistant U.S. Attorney Claire Cormier.
Having considered all of the evidence introduced at trial and
the arguments made by counsel, the court now issues its findings of fact and conclusions of
FINDINGS OF FACT
A. The Accident:
1. On April 5, 2000, at approximately 2:00 p.m., in the City of
San Jose, California, plaintiff, Anthony Gulizia, was riding his
bicycle on the left side of Race Street in violation of the
California Vehicle Code, approaching Luther Avenue.
2. At approximately the same time, Dick Liu, who at the time
was a mail carrier with the United States Postal Service acting
in the scope of his employment, was driving a postal vehicle on
Luther Avenue, approaching Race Street.
3. There is a stop sign on the corner of Luther Avenue and Race
Street, located approximately 10 to 12 feet back from the
prolongation of the Race Street curb, directed to drivers on
Luther Avenue approaching Race Street.
4. According to the plaintiff's accident reconstruction expert,
Dr. Rajeev Kelkar, Mr. Gulizia and Mr. Liu collided at a right
arc length of approximately 30 feet from the limit line of the
stop sign, approximately five paces west and four paces north of
the stop sign limit line located on Luther Avenue.
5. Mr. Gulizia hit the left front rear-facing mirror on the
postal vehicle, scraping and bruising his left torso near the
area of his heart.
6. The force of the impact caused Mr. Gulizia to fall from his
bicycle and caused the mirror glass to shatter and fall onto Mr.
Gulizia's chest as he lay on the ground.
7. There is disputed testimony regarding whether or not Mr. Liu
made a full and complete stop at the stop sign before making his
right turn onto Race Street and colliding with Mr. Gulizia. 8. Mr. Gulizia testified that Mr. Liu did not stop at the stop
sign. He stated that he saw Mr. Liu approaching the stop sign and
that he presumed Mr. Liu would stop, but that he did not stop.
9. Mr. Liu testified that he came to a complete stop and looked
both ways at least twice before making his turn. He testified
that this intersection was part of the regular route that he had
driven for several years before the accident, and that he always
fully stopped at this stop sign. Because of the buildings on the
corners, he would then have to creep forward in order to
determine if traffic on Race Street was clear so that he could
make his right turn.
10. Tommy Lee Gray testified that Mr. Liu slowed down but did
not come to a complete stop at the stop sign. However, Mr. Gray's
trial testimony was inconsistent in many respects from his
deposition testimony, the testimony of other witnesses including
plaintiff's expert, and objective facts about the intersection,
including testimony as to his location at the time of the
accident and his testimony that there was a turning lane on Race
Street when no such lane exists. Accordingly, the court
disregards Mr. Gray's testimony as unreliable.
11. Because Mr. Gulizia and Mr. Liu provide different accounts
regarding Mr. Liu's conduct, the court is unable to determine
whether or not Mr. Liu came to a complete stop.*fn3
12. However, the court need not decide this specific factual
issue because the testimony of the accident reconstruction
expert, Dr. Rajeev Kelkar, demonstrates that whether or not Mr.
Liu came to a complete stop is immaterial to the causation of the
subject accident. Dr. Kelkar testified that, based on his
calculations, the accident could have taken place as described in
the police report whether Mr. Liu came to a complete stop and
then accelerated through the turn, or if Mr. Liu slowed down but
did not stop as he made the turn. Accordingly, if the accident
would have happened whether or not Mr. Liu came to a complete
stop, then the failure to stop (if in fact he failed to stop)
would not be a cause of the accident. Therefore, the court need
not make a factual finding on this issue.
13. Dr. Kelkar also testified that, based on his calculations
of the speed and distance traveled by both Mr. Liu and plaintiff,
he concluded that Mr. Liu did not look to the right (towards Mr.
Gulizia) before beginning his turn. However, his calculations are
based on very limiting assumptions. First, the calculations
assume that Mr. Liu and Mr. Gulizia were traveling specific rates
of speed, in particular, Dr. Kelkar assumed a rate of speed for
Mr. Gulizia which was not sufficiently established for the trier
of fact. Second, the calculations seek to determine whether Mr.
Liu looked to the right at the moment he began to travel over the
stop sign limit line. If instead Mr. Liu looked to the right, and
then looked to the left for some seconds immediately before
traveling over the limit line,*fn4 Dr. Kelkar's calculations
would not be correct.
14. More importantly, Dr. Kelkar's calculations presumed that
there were no obstructions blocking Mr. Liu's view to the right
down Race Street. However, Mr. Gulizia testified that he believes
there was at least one car parked on Race Street by the building
at the northeast corner of Luther Avenue and Race Street. That
car may have blocked Mr. Liu's view. In addition, the northeast
corner building has pillars that partially block the view from
Luther Avenue to the right down Race Street.
15. Given these timing issues and the evidence of obstructions
that could have blocked Mr. Liu's view, Mr. Gulizia has not
proven that Mr. Liu failed to look to the right before commencing
16. As noted above, Mr. Gulizia was riding his bicycle on the
left side of the street at the time of the accident. Mr. Gulizia
concedes that this was a violation of the California Vehicle
17. Accordingly, the court finds that plaintiff Anthony Gulizia
was the party responsible for this accident, and that Mr. Liu,
and thus the defendant United States of America, is not
responsible. B. Damages
1. Because the court finds no liability on the part of the
defendant, the court does not reach the issue of damages.
CONCLUSIONS OF LAW
1. Mr. Liu was acting in the scope of his federal employment at
the time of the subject accident. Therefore, the United States
can be held liable only if, and to the extent that, liability
would attach to a private actor under the law of the place where
the tort occurred. See 28 U.S.C. § 1346(b)(1).
2. At the time of the accident, Mr. Gulizia was riding his
bicycle on the left side of the road, in violation of California
Vehicle Code § 21202. Because this accident was of the type which
the statute was designed to prevent, and because Mr. Gulizia's
violation of the statute proximately caused the accident, the
doctrine of negligence per se applies, and plaintiff Anthony
Gulizia is found negligent as a matter of law. See Cal. Evid.
Code § 669. The accident would not have happened had plaintiff
been riding his bicycle in compliance with the statute.
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