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May 5, 1997

USA, Defendant.

The opinion of the court was delivered by: JOHN J. HUGHES


 Defendant has filed a motion in limine to preclude certain evidence from being presented at trial. Specifically, Defendant seeks an Order from this Court precluding Plaintiffs from introducing any evidence that the driver of a car involved in a fatal car accident consumed alcohol on the day in question. Each party has submitted moving and opposition papers. The Court reviewed the written submissions of the parties and conducted oral argument on March 3, 1997. Additionally, in order to develop a more complete record, the Court conducted an evidentiary hearing, pursuant to Fed. R. Evid. 104(a), on April 22, 1997.

 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).


 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.

 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.
3. Agent Simpson's speech was alright and his eyes were clear.

 Based on his observations, Officer Scannell determined that there was no evidence of intoxication on the part of Agent Simpson, and therefore, no probable cause to conduct a blood or breathalyser test.

 Officer Scannell testified at the evidentiary hearing that he did not conduct other forms of field sobriety testing on Agent Simpson due to: (1) his observations of Agent Simpson in response to his initial testing and (2) the nature of Agent Simpson's injuries. For instance, Officer Scannell testified that he could have required Agent Simpson to submit to a Balance Test, which would have required him to essentially balance himself on one leg for a 10 second period while extending the other leg forward. However, Officer Scannell indicated that this form of testing would not necessarily be reliable due to Agent Simpson's injuries, which included pain in his knees.

 Additionally, the Court notes that the investigating officers, based on their own observations at the accident scene and on the statements from emergency personnel, did not conduct their investigation as if it there was a fatality involved. According to accepted protocol, when a car accident results in a fatality, police are required to conduct a very thorough and detailed investigation. The Monmouth County Uniform Fatal Motor Vehicle Accident Investigation Manual sets forth the protocol for police to follow when investigating fatal motor vehicle accidents. According to this Manual, when either alcohol or drugs are suspected to be involved in a fatal accident, standard breath test procedures should be followed. In this regard, an officer's authority permits him to consider all relevant circumstances in determining whether to require an individual suspected of driving under the influence of alcohol to submit to breathalyser testing.

 The investigating officers did not require Agent Simpson to submit to a blood or breathalyser test for two reasons. First, Officer Scannell specifically determined, after conducting a simple field sobriety test, that there was no probable cause to require Agent Simpson to take the test. Second, the investigating officers specifically determined, based on statements from emergency personnel and on their own observations of the accident scene, that this was not a fatal car accident.

 Agent Simpson remained at the accident scene in the presence of the investigating officers until the decedent was finally extricated from his vehicle. Thereafter, Agent Simpson left the accident scene with his wife, and later that evening, placed a second phone call to Agent Polifrone at which time Agent Simpson did, in fact, advise him that he consumed alcohol prior to the accident. Agent Simpson testified that he initially told Agent Polifrone that he was not drinking because he misunderstood Agent Polifrone's question. Specifically, Agent Simpson testified that he thought Agent Polifrone had asked whether he was driving drunk or intoxicated, not simply whether he had consumed alcohol.

 At the evidentiary hearing, held pursuant to Fed. R. Evid. 104(a), the Court heard testimony from ATF Agent Kevin Simpson, Officer Patrick Scannell and Lieutenant James McCafferey, and considered the following exhibits of Plaintiffs and Defendant:

P-1. Report of Police Management Consultants Services, Inc.;
P-2. Wall Family Medical Group Records of K. Simpson;
P-3. Medical Records of K. Simpson from R. Grossman, dated July 20, 1995;
P-4. Plaintiffs' Engineering Report of S. Batterman, P.H.D., ...

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