United States District Court, N.D. Illinois, Eastern Division.
SHARON KNIGHTS, as Administrator of the Estate of Michael Lomec, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang United States District Judge
December 15, 2009, Michael Lomec was walking on the street
near an intersection in Chicago when he was struck by a car
driven by David Forero, a Special Agent with the Federal
Bureau of Investigation. R. 1, Compl. Lomec filed this Federal
Tort Claims Act suit against the government. Id.
Each party blames the other for the accident. Lomec claims
that Forero acted negligently by failing to keep a proper
lookout, by failing to slow down when approaching the
intersection, by failing to see obviously visible things, and
by failing to yield to Lomec. Id. ¶ 12. The
government responds that Lomec has fallen short of his burden
of proof, and in any event, it was Lomec who was negligent
because he failed to exercise due care for his own safety
when crossing the street. R. 7, Answer. After filing this
case, Lomec passed away; his estate, which is administered by
his sister, Sharon Knights, was substituted as the Plaintiff.
R. 86, 12/16/15 Minute Entry. On June 6, 2016, the Court held
a one-day bench trial on the issue of liability only. (The
parties agreed to split the liability and damages portions of
the trial at a February 2016 status hearing. R. 87.) The
Court has carefully considered all of the evidence, which
comprised the trial testimony of Agent Forero and FBI Special
Agent Keith Sam, Lomec’s designated deposition
testimony, the trial exhibits, and the stipulated facts. The
Court now issues its findings of fact and conclusions of law
under Federal Rule of Civil Procedure 52(a)(1). Ultimately,
the Court finds that Forero and Lomec were both negligent and
equally (50%) at fault for the accident.
Evidence Offered at Trial
following evidence was offered at trial, and is undisputed
except where noted. The accident occurred on the afternoon of
December 15, 2009, at the intersection of Lake Street and
Francisco Avenue on the west side of Chicago, Illinois. R.
89, Parties’ Proposed Pretrial Order at 2-3
(Stipulations 1 and 2). Francisco Avenue is a one-way
northbound street. Lake Street consists of two lanes, one for
each direction of traffic, and runs east-west. In that
location, Lake Street sits directly underneath the Chicago
Transit Authority “El” tracks. Def.’s Exh.
8; Pl.’s Exh. 1 (eastbound view of intersection);
Pl.’s Exh. 2 (westbound view). Here are two photos of
the intersection, the first looking east, the second looking
photos show, the “El” track beams straddle the
two lanes and rest on the outer edge of both lanes.
Def.’s Exh. 8; Pl.’s Exh. 1. Although
Lake Street is only two lanes wide, the street extends
several feet past the outer edges of those two lanes to the
north and south. Pl.’s Exh. 1; Pl.’s Exh.
2. This extended roadway is not covered by the
“El” tracks and is wide enough for cars to drive
and park on. Pl.’s Exh. 1; Pl.’s Exh. 2. There
are no traffic signals or signs on Lake Street at this
intersection. Pl.’s Exh. 1; Pl.’s Exh. 2. Nor is
there a marked crosswalk on the west side of the intersection
across Lake Street. Pl.’s Exh. 1; Def.’s Exh. 8.
day of the accident, Lomec had taken the “El”
train to the California stop, which is located at the
intersection of Lake Street and California Avenue (two blocks
east of the accident site). Lomec Dep. 23:10-19, 24:1-5,
24:16-17. Lomec was headed to “Al’s
Chicken” for lunch, which is located just west of the
Lake and Francisco intersection on Lake Street, and then to a
doctor’s appointment. Id. 22:24-25, 23:1-4,
23:12-17, 33:10-19. It was a clear day and visibility was
good. Def.’s Exh. 2, 12/16/09 Federal Motor Vehicle
Accident Report at 2. After leaving the train station, Lomec
began walking west on Lake Street. Lomec Dep. 23:20-23,
24:6-9, 24:18-20, 25:14-19. He soon reached the intersection
of Lake and Francisco. Id. 25:14-19. Lomec crossed
Francisco Avenue, which placed him on the southwest corner of
the intersection. Id. 25:14-19, 27:1-5. At the same
time, Forero was driving east on Lake Street; according to
Forero, he was driving at about 15 to 20 m.p.h. (about five
to ten miles-per-hour below the 25 m.p.h. speed limit). R.
110, Trial Tr. (Morning) 47:20-48:12. Forero was on duty and
headed to a specific location in the city to conduct
surveillance. Id. 34:11-35:23; Parties’
Proposed Pretrial Order at 3 (Stipulations 3 and 4). Forero
testified that he was being “hypervigilant” and
scanning the roadway at the time, Trial Tr. (Morning)
48:13-49:1, though Lomec of course argues that Forero was not
paying enough attention.
around 2:48 p.m., Lomec started to walk northbound across
Lake Street. Parties’ Proposed Pretrial Order at 3
(Stipulation 2); Lomec Dep. 25:14-19, 27:18-23, 28:13-17. He
claims he looked both ways for oncoming traffic, but did not
see any cars. Lomec Dep. 27:24-25, 28:1-9, 29:1-6, 30:18-20.
According to Lomec, he then took several steps (somewhere
between five and eight) into the intersection. Id.
28:11-25. Forero argues that Lomec did not cross at the
intersection, and in fact walked into Forero’s car. At
Lomec’s deposition, Lomec testified that he had just
passed one of the “El” beams and was stepping
forward with his right foot into the eastbound traffic lane
when he collided with Forero. Id. 28:13-25, 31:1-8;
Pl.’s Exh. 1 (photo with “X” marking where
Lomec contends accident occurred). Lomec testified that
Forero’s tire rolled over Lomec’s right foot,
causing Lomec to fall to the ground. Lomec Dep. 31:1-8.
Lomec’s face, chest, and hands all hit the ground, and
Lomec landed about five to six feet away. Id. Forero
did not see Lomec before or during the collision. The first
time Forero saw Lomec was after the collision, when Lomec was
already on the ground. Trial Tr. (Morning) 42:13-22,
the accident, Forero immediately pulled over, got out, and
checked on Lomec. Id. 52:6-53:15. Forero did not see
any blood, did not notice Lomec hobbling, and did not find
Lomec to be impaired in any way. Id. 56:5-12. Forero
asked Lomec if he needed any medical treatment. Id.
53:9-15. Lomec said he was fine. Id. 57:3-9; Lomec
Dep. 34:17-25. Forero never identified himself as an F.B.I.
agent, but Forero did tell Lomec that he would need to report
the accident because he was driving a company car. Lomec Dep.
35:5-9; Trial Tr. (Morning) 56:13-21, 57:25-58:2. Forero then
asked Lomec for some identifying information. According to
Forero, Lomec was initially hesitant to share any information
with Forero, but after several minutes of “cajoling,
” agreed to do so. Trial Tr. (Morning) 57:10-13,
60:20-25. (Lomec did not mention any hesitancy on his part
related to exchanging information, see generally
Lomec Dep., but he was not directly asked during the
deposition.) Forero gathered the following information from
Lomec: Lomec’s name, address, date-of-birth, two
telephone numbers, and identification card number. Forero
wrote this information down on a piece of paper at the
accident site, along with the date (“12/15/09”),
time (“2:48 pm”), intersection
(“Lake/Francisco”), and make, model, and license
plate number of his vehicle (“231 6642 Ford
Taurus”). Def.’s Exh. 6, Forero Handwritten
Note; Trial Tr. (Morning) 62:7-64:24. Lomec then left on
foot. Forero testified that throughout his interactions with
Lomec, Lomec was both polite and cordial. Trial Tr. (Morning)
Lomec left, Forero moved his car onto Francisco Avenue and
called his squad secretary, Peg Kelley, to let her know that
he had been in an accident. Trial Tr. (Morning) 70:1-8;
Pl.’s Exh. 4, Nextel Invoice at 1. Forero made this
call at 2:52 p.m., around four minutes after the accident
supposedly occurred. Trial Tr. (Morning) 70:9-71:19. The call
lasted for three minutes and nine seconds. Nextel Invoice at
1. Forero then took five photographs of the accident
site, including two photographs of the intersection, one of
what appears to be the unmarked crosswalk, and two of his
car. Def.’s Exh. 5, Five Photographs of Scene; Trial
Tr. (Morning) 79:7-15; R. 111, Trial Tr. (Afternoon)
109:18-111:4. The only visible damage to Forero’s car
was to the right side mirror, which can be seen dangling down
in two of the photographs. Five Photographs of Scene at 3, 5;
Trial Tr. (Afternoon) 110:22-111:4. Forero stated that he
took these photographs to have some evidence of the location
of the accident. Trial Tr. (Morning) 80:13-16.
then left the accident site and went to the police station.
Trial Tr. (Morning) 81:11-13. He spoke to an on-duty officer
and told the officer about the accident, id. 82:1-3;
that officer then prepared an Illinois Traffic Crash Report.
Pl.’s Exh. 18, 12/15/09 Illinois Traffic Crash Report.
Forero was familiar with these crash reports from his time
with the Chicago Police Department. Before becoming an F.B.I.
agent, Forero served as a Chicago Police Officer for six
years (from 1998 to 2004). Trial Tr. (Morning) 27:24-28:3,
29:20-25. Forero estimated that, when he was a police
officer, he probably filled out around 50 to 100 of these
traffic reports. Id. 28:24-29:5. He also knew that
it was important to be as accurate as possible in these
reports. Id. 30:10-14. This December 15 report-the
date of the accident-lists the accident site as “2900 W
Lake, ” which corresponds to the intersection (as
opposed to an address west of the intersection). 12/15/09
Illinois Traffic Crash Report. Forero could not remember
exactly what he told the officer about the location of the
accident. Trial Tr. (Morning) 84:13-19, 87:12-13. The report
describes the accident as follows: “Unit #2
(pedestrian) walked into street and was struck by Unit #1. No
injuries reported. Pedestrian refused any service by driver
of Unit #1.” 12/15/09 Illinois Traffic Crash Report.
next day, Forero updated his handwritten note from the day of
the accident to include the following additional information:
that Lomec “refused medical treatment, ” that
Lomec “said [he] was late for work, ” that he
“[d]id not want to wait, ” and that he
“wasn’t going to sue/hoped I [Forero] would not
sue him.” Def.’s Exh. 6, Forero Handwritten Note;
Trial Tr. (Morning) 65:1-66:8. That same day, Forero also
personally filled out three reports: (1) an Illinois Motorist
Report, Def.’s Exh. 1, 12/16/09 Illinois Motorist
Report, (2) a motor vehicle accident report, Def.’s
Exh. 2, 12/16/09 Federal Motor Vehicle Accident Report, and
(3) an internal F.B.I. Report, Def.’s Exh. 3, 12/16/09
F.B.I. Report; Def.’s Exh. 4 (copy of the same report).
See also Trial Tr. (Morning) 88:13-16, 99:25-100:24.
In the Illinois Motorist Report, Forero described the
accident as follows:
Unit 1 [Forero], East Bound Lake Street, struck Pedestrian
who was walking North Bound from approximately 2903 West
(Lake St). Pedestrian was standing beside/near an
“L-Train” support beam/column. As Unit 1 drove
past “L-Train” support beam, Pedestrian stepped
into roadway. Unit 1 passenger side mirror struck pedestrian.
Pedestrian stated he was fine, was offered medical
treatment/ambulance - refused. Pedestrian left on foot after
exchanging identifying information with Unit 1 driver.
Def.’s Exh. 1, 12/16/09 Illinois Motorist Report at 2.
Forero drew a diagram depicting this information as well.
Id. This report, unlike the Illinois Traffic Crash
Report from the day before, lists the accident address as
“2903 West (Lake St), ” a location slightly west
of the Lake and Francisco intersection, as opposed to
“2900 West Lake, ” which falls right at the
motor vehicle accident report includes a similar description
and diagram. Def.’s Exh. 2, 12/16/09 Federal Motor
Vehicle Accident Report. In that report, Forero wrote:
FED was east bound Lake Street, travelling approximately 15
to 20 mph. Unknown posted speed limit. Road conditions
normal. Weather - normal. Driver visibility - the
“L-Train” support beam partially obstructed view
of Pedestrian. Condition of light - daylight. No traffic
control signal or stop sign observed at intersection of
Lake/Francisco. Pedestrian was walking north bound from
approximately 2903 W. Lake Street (not crosswalk). Pedestrian
was standing near/besides an “L-Train” support
beam. As FED drove past “L-Train” support beam,
Pedestrian stepped into the roadway. FED’s passenger
side mirror struck Pedestrian.
Id. at 2.
internal F.B.I. report contained more detail of the accident
from his perspective. In that report, Forero describes the
accident as follows:
On 12/15/2009, at approximately 2:48 p.m., SA Forero was
traveling eastbound (approximately 15 to 20 mph) on the 2900
block of West Lake Street in Bureau Vehicle CG-358, a 2005
Ford Taurus, when he struck a pedestrian who was walking
northbound from approximately 2903 West Lake Street. The
pedestrian was standing beside/near an “L-Train”
support beam. The pedestrian was struck by CG-358 passenger
side mirror as pedestrian stepped into the roadway. The
pedestrian was not on the crosswalk. The pedestrian was
identified as Michael J. Lomec.
Immediately after the collision, SA Forero stopped the
vehicle and checked on the well being of Lomec. SA Forero
observed Lomec laying on the ground. SA Forero helped Lomec
to his feet. No bleeding or visible injuries were observed.
SA Forero asked Lomec if he was okay. Lomec replied he was
okay. … SA Forero then offered to contact the Chicago
Police Department to report this accident. Lomec again stated
that he was fine, he did not want to wait, and that he was
late for work. SA Forero and Lomec exchanged identifying
information. As we exchanged information, Lomec stated
something to the effect of, “don’t worry,
I’m not gonna sue you, I hope you don’t sue ...