The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
FINDINGS OF FACT AND BENCH TRIAL CONCLUSIONS OF LAW FOLLOWING
Plaintiffs Esteban Quintero ("Esteban") and Leticia Quintero ("Leticia") are proceeding with an action against the United States of America pursuant to the Federal Tort Claims Act. 28 U.S.C. § 2671, et seq .
On April 29, 2010, the court concluded a three-day bench trial and ordered counsel to submit proposed findings of fact conclusions of law. Esteban submitted proposed findings on May 7, 2010. (Docs. 47, 48). Leticia submitted proposed findings on May 10, 2010. (Docs. 49, 50). The United States submitted proposed findings on May 10, 2010. (Doc. 51).
1. Prior to May 12, 2006, Esteban was a healthy 44 year-old man with no physical disabilities, and Leticia was a healthy 46 year-old women with no physical disabilities.
2. On May 12, 2006, Esteban was driving his 2002 Yamaha Roadster motorcycle north bound on Santa Fe Road in Merced County. Leticia was a passenger on the motorcycle. Plaintiffs' motorcycle was designed and configured for cruising and was equipped with an after market wind screen, saddlebags, two seats, and upright handlebars. The motorcycle was in operative condition and had a braking system that included a foot brake and a hand brake. The hand brake was on the left handle bar and was activated by pressure.
3. Plaintiffs traveled to the Chukchansi Casino approximately two hours from their residence, which is at 7186 Monterey Court in Winton, California, where Esteban Quintero has resided for approximately 30 years and Leticia Quintero has resided approximately 28 years by inference, as they have been married 28 years.
4. The time of the incident, according to the testimony of the Highway Patrol officer who investigated, was approximately 2:05 p.m. That accident report, in evidence as Exhibit 51, shows that the officer, John Patterson, an experienced Highway patrolman, arrived at approximately 2:30 to 2:35 p.m.
5. Plaintiffs were traveling at approximately 55 to 60 miles per hour in a 55 miles per hour zone.
6. No evidence of comparative fault was offered.
7. As Plaintiffs approached the intersection of Santa Fe Road and Buchanan Hollow Road, Esteban Quintero saw a Unites States' postal service delivery truck stopped at a stop sign on Buchanan Hollow Road facing east. The weather conditions were clear, it was a sunny day, the payment was dry, there were no obstructions to vision either forward or backward.
8. The postal truck was then driven by Valerie Babb, whose married name at the time of trial was Valerie Kuwatani. Ms. Babb was a relief driver filling in for the regular route driver who was not on duty May 12.
9. As Plaintiffs approached the intersection of Santa Fe Road and Buchanan Hollow road, the postal truck left the stop sign and turned into the north-bound lane of Santa Fe Road. Ms. Babb did not see Plaintiffs' motorcycle as she negotiated the turn on to Santa Fe Road. Plaintiffs were wearing dark clothing, which provided at least some basis for them and their motorcycle to bee seen as they approached the intersection, and the motorcycle was in close enough proximity to Ms. Babb's position that it would have been clearly visible.
10. Esteban Quintero unsuccessfully attempted to avoid a collision with the postal truck by applying his brakes and steering the motorcycle off to the right. Plaintiffs' motorcycle struck the postal truck, knocking Esteban and his motorcycle to the ground and ejecting Leticia from the vehicle.
11. Plaintiffs were taken by ambulance to Mercy Medical Center in Merced immediately following the accident. Leticia was released from Mercy Medical Center after a physical examination and X-rays. Esteban was transferred to Memorial Hospital in Modesto, and then to Doctors Medical Center in Modesto. Esteban was hospitalized for injuries sustained in the collision with the postal truck from May 12, 2006 to May 30, 2006.
Esteban's Injuries and Treatments
12. Esteban's primary injuries were to his left leg: a segmental tibia fracture with interarticular tibial plateau fracture component and fractures of the tibia and fibula both proximally and distally. Esteban also suffered road burns to his upper extremities, a decubitus ulcer wound on his left heel, and multiple necrotic blisters on his left calf.
13. On May 24, 2006, Dr. Robert Cash, an orthopedic surgeon, performed surgery to repair Esteban's lower leg fractures.
These procedures, described as open reduction and internal fixation of left tibial plateau fracture and external fixation of the distal tibia fibula fracture, involved approximately ninety minutes of surgical time.
14. Esteban received treatment for soft tissue injuries at Valley Wound Healing Center in Modesto approximately three times per week from June 19, 2006 through December 11, 2006.
15. Esteban underwent surgery at Stanislaus Surgical Hospital to remove the external fixator and to perform debridement of the decubitus ulcer on his heel on August 21, 2006.
16. On November 29, 2006, Dr. Cash performed arthroscopic surgery upon Esteban in order to repair damage to the meniscus and cartilage in Esteban's left knee at Stanislaus Surgical Hospital. The procedure was described as arthroscopy with chondroplasty of the patella and lateral partial meniscectomy.
17. On December 29, 2006, Dr. Cash authorized Esteban to return to full work duties as a restaurant manager on January 8, 2007.
18. On December 10, 2007, Esteban returned to Dr. Cash's office with a primary complaint of pain along the plantar surface of the left foot. He was referred to physical therapy to assist with stretching of the Achilles tendon, foot and ankle.
19. On December 8, 2008, Esteban returned to Dr. Cash with complaints of intermittent heel pain, a stiff ankle, and knee pain. Radiographs of the ankle revealed atrophy ...