I. PROCEDURAL HISTORY
Plaintiffs seek to recover damages from Defendant United States as a result of a fatal car accident involving Roland A. Wilhelmy, Sr. (hereinafter "the decedent") and Kevin Simpson, a Special Agent of the Department of the Treasury, Bureau of Alcohol, Tobacco, and Firearms (hereinafter "the ATF"). At approximately 8:15pm on June 23, 1995, the decedent was fatally injured when the car he was driving collided with Agent Simpson's vehicle at the intersection of Asbury Road and Route 33/34 in Wall Township, New Jersey. Plaintiffs essentially contend that Agent Simpson's negligence caused the fatal accident, and rely heavily on Agent Simpson's admission that he was traveling at approximately 50 miles per hour at the time of the accident, even though it was raining and there were warning signs limiting speed to 20 miles per hour in the intersection. See Plaintiffs' Opposition Brief at 1-2.
On June 14, 1996, Plaintiffs filed a wrongful death and survivorship action against Kevin Simpson only in the Superior Court of New Jersey, Monmouth County. Because Agent Simpson was acting within the scope of his employment as a Special Agent with the ATF at the time of the accident, Defendant properly removed the state action, on September 10, 1996, to the United States District Court, District of New Jersey, pursuant to the Federal Tort Claims Act. See 28 U.S.C.A. §§ 1346(b), 2679(b)(d). Following removal, substitution of Defendant United States as the sole defendant in this federal action was proper as only the "United States" can be sued in actions that seek damages for injuries caused by the alleged negligent acts of government employees acting within their scope of employment. See 28 U.S.C.A. §§ 1346(b), 2679(b)(d).
Thereafter, on October 4, 1996, Defendant filed an answer to the complaint and a counterclaim alleging certain monetary damages as a result of the decedent's alleged negligence. On October 28, 1996, Plaintiffs filed an answer to the counterclaim. On March 14, 1997, Plaintiffs filed a motion for an Order to amend the complaint seeking to add as party defendants the Municipality of Walls Township and the State of New Jersey. Plaintiffs essentially contend that these public entities had adequate notice of the dangerous conditions of the intersection and failed to take reasonable precautions to protect motorists. See Certification of Plaintiffs' Counsel In Support Of Motion To Amend Complaint. On April 22, 1997, the Court granted Plaintiffs' motion for an Order to amend the complaint. Discovery has not concluded in connection with the amended complaint nor have the parties submitted a final pretrial order.
On January 17, 1997, Defendant filed the instant motion in limine. On March 3, 1997, the Court conducted oral argument, and on April 22, 1997, the Court conducted an evidentiary hearing, pursuant to Fed. R. Evid. 104(a).
II. FACTUAL BACKGROUND
At approximately 8:15pm on June 23, 1995, a light rain was falling and visibility was diminished due to the time of day. The decedent, who was 76 years of age, was traveling to Olympic Limousines, a shuttle service that provides transportation to and from certain airports and train stations, to pick up his son, Roland Wilhelmy, Jr. Agent Simpson, who had just attended a graduation ceremony celebrating his successful completion of a two-week training course at the Ocean County Police Academy in Lakewood, New Jersey, was traveling to his home. The graduation ceremony was held at the "Chevy 57 Cafe," which Agent Simpson attended for approximately four hours from 12:15pm until 4:30pm. During that time period, Agent Simpson testified that he consumed two beers; one when he first arrived at the Cafe and the other shortly after he received his graduation certificate. At around 4:30pm, Agent Simpson left the Cafe and drove to the "New Villager Tavern" where he stayed from approximately 4:45pm until 7:30pm. During that time period, Agent Simpson testified that he consumed one beer upon arriving at the Tavern. Agent Simpson further testified that he finished this beer at least one hour before leaving the Tavern at 7:30pm.
Driving conditions at the time of the accident were not good. The impending darkness and steady rain resulted in wet roadways and diminished visibility. Agent Simpson, by his own admission, was traveling approximately 50 miles per hour, eastbound on Route 33/34, a two lane highway, heading toward the intersection of Route 33/34 and Asbury Road. The decedent was traveling southbound on Asbury Road approaching the same intersection where Olympic Limousines is located.
Traffic control devices in the area of the intersection consisted of a posted stop sign for motorists traveling southbound on Asbury Road. For motorists traveling eastbound on Route 33/34, the posted speed limit was 50 miles per hour. However, at approximately .23 miles before the intersection, there was: (1) a yellow colored speed limit sign warning motorists to reduce speed to 20 miles per hour and (2) a yellow and black colored sign warning that traffic was approaching a circle. Additionally, at approximately 659 feet from the intersection, there was a yellow colored sign on eastbound Route 33/34 warning motorists of slippery roadway conditions.
Upon approaching the intersection, the parties dispute whether the decedent's vehicle actually came to a complete stop at the posted stop sign on Asbury Road. In any event, it appears that the decedent did not see Agent Simpson's vehicle when he pulled out into the intersection. Agent Simpson's vehicle struck the decedent's vehicle in the area of the right front door and fender, propelling the decedent's vehicle approximately 117-123 feet before finally coming to rest. The decedent, who was not wearing a seat belt, remained wedged underneath the dashboard of his vehicle for approximately one hour before emergency personnel could extricate him. Although the decedent complained of leg and back pain after being removed from his vehicle, emergency personnel told investigating officers of the Wall Township Police Department that his vital signs and blood pressure were good. Emergency personnel then transferred the decedent to Jersey Shore Medical Center where he later died of multiple thoracic injuries at approximately 11:26pm. Except for slight pain in his wrists and knees, Agent Simpson escaped the accident with minor injuries and declined to be taken to the hospital.
Following the accident, Agent Simpson placed two telephone calls from a phone located at Olympic Limousines. He first called 911 to report the accident and he then called his wife to advise her that he was involved in a car accident and that he would need a ride home. When police arrived on the scene, Agent Simpson: (1) identified himself as the driver of the other vehicle involved in the accident and (2) informed them that he was an ATF Agent and that he was driving a government owned vehicle. Agent Simpson also asked Officer Patrick Scannell, one of the investigating officers, if he could place a phone call to Agent Dominick Polifrone, Agent Simpson's immediate ATF supervisor. Officer Scannell permitted Agent Simpson to use his cellular phone which was located inside his patrol car. Agent Simpson contacted Agent Polifrone and advised him, in part, that he had been in a serious car accident, that his car was probably totaled and that the other driver appeared to be injured. When asked by Agent Polifrone whether he had been drinking, Agent Simpson responded in the negative. However, Lieutenant James McCafferey, who was inside the patrol car with Agent Simpson when he placed the call, detected a very faint odor of alcohol on Agent Simpson's breath. Lieutenant McCafferey advised Officer Scannell of his discovery and requested that he inquire into Agent Simpson's possible intoxication.
When asked by Officer Scannell whether he had been drinking, Agent Simpson advised him that he had consumed three beers earlier in the day. Officer Scannell then conducted a simple field sobriety test, paying close attention to Agent Simpson's speech and gait. In doing so, Officer Scannell made the following observations of Agent Simpson:
1. Agent Simpson recited the alphabet from A to Z correctly and without trouble.
2. Agent Simpson provided his name, residence, date of birth and the day of the week correctly and without trouble.