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Barbara Roberts v. Thomas Biancamano

February 26, 2013


The opinion of the court was delivered by: William J. Martini, U.S.D.J.



This Federal Tort Claims Act ("FTCA") action arises out of an August 3, 2007 collision between a United States Postal Service van and Plaintiff Barbara Roberts's automobile. On January 30 and 31, 2013 the Court conducted a non-jury trial concerning liability only, in which it had the opportunity to observe the manner and demeanor of the witnesses and to assess their credibility. Following trial, each party submitted proposed findings of fact and conclusions of law.

This memorandum opinion constitutes the Court's findings of fact and conclusions of law regarding liability in accordance with Federal Rule of Civil Procedure 52(a). For the reasons that follow, the Court finds for the Defendant and against the Plaintiff.


1. The Court has jurisdiction over the subject matter of this action under the FTCA, 28 U.S.C. §§ 1346(b)(1) and 2679(a), which provides a remedy against the United States for injuries caused by the "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment."

2. The Court has personal jurisdiction over the parties to this action, as both reside in this district.

3. Venue in this District is proper under 28 U.S.C. § 1402(b).

4. A claimant may recover under the FTCA only "under the circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act of omission occurred." 28 U.S.C. § 1346(b); see also 28 U.S.C. §§ 2672, 2674. That is, a claimant may recover against the United States only to the extent that recovery would be permitted against a private party under the substantive law of the state where the conduct complained of took place. Richards v. U.S., 369 U.S. 1, 6-16 (1962); Rodriguez v. U.S., 823 F.2d 735, 739 (3d Cir. 1987). In this case, it is undisputed that the conduct complained of took place in New Jersey; accordingly, the Court applies New Jersey negligence law.

5. To recover in a negligence action in New Jersey, a plaintiff must establish: 1) that the defendant owed her a particular duty under the circumstances that gave rise to this action; 2) that the defendant somehow breached that duty; and 3) that the defendant's breach of duty proximately caused her to suffer some damage or harm. See Keith v. Truck Stops Corp. of Am., 909 F.2d 743, 745 (3d Cir. 1990); Griesenbeck v. Walker, 199 N.J. Super. 132, 141 (App. Div. 1985), cert. denied, 101 N.J. 264; Catto v. Schnepp, 121 N.J. Super. 506, 511 (App. Div. 1972), aff'd, 62 N.J. 20.

6. Under New Jersey law, negligence is conduct falling below a standard recognized by law as essential to protecting others from the unreasonable risk of harm -- but will not be presumed merely because someone has been harmed. Sanzari v. Rosenfield, 34 N.J. 128, 134 (1961); Murphy v. Terzako, 14 N.J. Super. 254, 259 (App. Div. 1951).

7. Rather, a plaintiff must prove by a preponderance of the evidence that a defendant's negligence caused an injury before recovery will be allowed. See Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).

8. The preponderance of the evidence standard requires the plaintiff to provide evidence showing that it is more likely than not that the defendant was negligent. Crowley v. Chait, No. 85-2441, 2004 WL 5434953, at *6 (D.N.J. Aug. 25, 2004).

9. Under New Jersey's comparative negligence law, a plaintiff who is found to be fifty percent or less at fault is entitled to a recovery, but any award of damages is diminished by the percentage of fault attributed to her. N.J.S.A. 2A:15-5.1; Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 109 (2004); Ostrowski v. Azzara, 111 N.J. 429, 445-46 (1988).

10. However, a plaintiff's own negligence will wholly bar recovery if it is "greater than the negligence of the person against whom recovery is sought." N.J.S.A. 2A:15-5.1.

11. To determine whether a plaintiff is comparatively negligent, the factfinder should determine whether the plaintiff "was moving about in the world in a way that posed an unreasonable risk of physical injury to herself." Tose v. Greate Bay Hotel & Casino, Inc., 819 F. Supp. 1312, 1315 (D.N.J. 1993). Thus, individuals in New Jersey have a duty to "not place themselves in positions of unreasonable physical danger." Id.

12. In a non-jury trial, the Court must "find the facts specially and state its conclusions of law separately." Fed. R. Civ. P. 52(a)(1).

13. In its role as factfinder in a tort case involving motor vehicles, the Court may view and rely on post-collision photographic evidence of the damage to the parties' vehicles without reliance on an expert witness. See, ...

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