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Knights v. United States

United States District Court, N.D. Illinois, Eastern Division.

August 23, 2016

SHARON KNIGHTS, as Administrator of the Estate of Michael Lomec, Plaintiff,


          Honorable Edmond E. Chang United States District Judge

         On 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.[1] R. 1, Compl.[2] 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.[3]

         I. Factual Background

         A. Evidence Offered at Trial

         The 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 west:

         (Image Omitted)

         As the 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.

         On the 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.

         At 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, 51:15-52:1.

         After 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”)[4]. 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) 67:2-13.

         After 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.[5], 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.

         Forero 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.

         The 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 intersection.

         Forero’s 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.

         Forero’s 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 ...

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