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Whiting v. United States

June 22, 2007

VICTORIA WHITING, A WIDOW, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge

FINDINGS OF FACT & CONCLUSIONS OF LAW

This is an action for wrongful death brought by the widow, Victoria Whiting, against the United States of America. The action is brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

The lawsuit arises out of a fatal head-on collision that occurred on the evening of February 3, 2002 on a rural section of Highway 94 in Jamul, California. While traveling eastbound toward his home, Michael Whiting, riding his 1966 Triumph motorcycle, collided with a Chevrolet Tahoe Bureau of Land Management patrol vehicle being driven by Ranger Joseph Funk. The collision occurred while Ranger Funk was attempting to pass a slower-moving vehicle in his westbound lane.

In her complaint, Plaintiff alleged that Ranger Funk was negligent in the operation of his Tahoe and that his negligent actions were the proximate cause of the death of Mr. Whiting. It is undisputed that Ranger Funk was acting within the course and scope of his employment with the Bureau of Land Management at the time of the accident. Defendant, the United States of America, denied any liability and claimed that Ranger Funk was not negligent in the operation of his vehicle. In addition, Defendant asserted that Mr. Whiting's illegal operation of his motorcycle while intoxicated and without a headlight was the cause of the fatal collision.

Pursuant to 28 U.S.C. § 2402, the action was tried by the Court without a jury. The seven-day trial took place in April and May 2007. The Court has spent a considerable amount of time after trial reviewing all of the evidence presented and deliberating upon the complex interplay of much of this evidence in reaching a decision as to the key disputed facts of the case.

Having considered the testimony and evidence introduced at trial, the pre and post-trial briefs, and all other filings that are a part of the trial record, in accordance with Fed. R. Civ. P. 52(a), the Court hereby issues the following findings of fact and conclusions of law. For the reasons outlined below, the Court finds in favor of the Defendant.

I. FINDINGS OF FACT

The Court incorporates by reference the stipulated facts provided in the pretrial order [Doc. #94] and issues the following findings of fact. The Court specifically finds that Ranger Funk and Alisha Shaefer, the driver of the vehicle behind Ranger Funk, were credible witnesses and credits their testimony in reaching these findings.

1. Michael Whiting was drinking at the Greek Sombrero in the late afternoon into the early evening of February 3, 2002.

2. As Mr. Whiting was riding toward his home, the night was rapidly darkening. However, there was sufficient ambient light that a motorcycle driver knowing the route home and looking for the white lane markers and the yellow center line could navigate the east-bound roadway without an illuminated headlamp, and Mr. Whiting was very familiar with this stretch of road.

3. Mr. Whiting was considerably intoxicated at the time of the collision. His blood alcohol concentration was approximately 0.23%.

4. The headlight on Mr. Whiting's motorcycle was not illuminated in the moments leading up to the collision. Ranger Funk could not see the motorcycle approaching him until it was too late to avoid the collision.

5. Ranger Funk was performing a controlled and, what would appear to a reasonably prudent driver, was an otherwise safe, passing maneuver prior to the collision.

6. There is not sufficient evidence from which the Court could conclude whether Ranger Funk indicated his intention to pass in ...


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