22-995 Dooley v. United States IN THE
United States Court of Appeals For the Second Circuit ________
AUGUST TERM, 2022
ARGUED: APRIL 20, 2023 DECIDED: OCTOBER 5, 2023
No. 22-995
KEVIN DOOLEY, Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, Defendant-Appellee. ________
Appeal from the United States District Court for Southern District of New York 1:18-cv-7136 – Gorenstein, Magistrate Judge. ________
Before: CALABRESI, PARK, and LEE, Circuit Judges.
________ 22-995 Dooley v. United States
Plaintiff-appellant Kevin Dooley (“Dooley”) appeals from a judgment of the United States District Court for the Southern District of New York (Gorenstein, M.J.). While riding his bicycle, Dooley collided with the open door of a car owned by the United States and operated by a United States employee. Dooley brought a claim for negligence against the United States, pursuant to the Federal Tort Claims Act. The district court found the United States liable, but concluded Dooley also acted negligently and was therefore partially liable. On appeal, Dooley contends, inter alia, that the district court erred in finding his negligence caused the accident. We agree. We therefore VACATE and REMAND.
Judge Park dissents in a separate opinion.
MICHAEL AVILES, Michael J. Aviles & Associates, LLC, New York, NY, in
support of Plaintiff-Appellant.
JENNIFER JUDE, Assistant United States Attorney (Christopher Connelly,
Assistant United States Attorney, on the brief), for Damien Williams,
United States Attorney for the Southern District of New York, New
York, NY.
CALABRESI, Circuit Judge:
This case arises from a dooring accident: a delivery man was riding his
bicycle down Burke Avenue in the Bronx, when he hit the interior of the open door
2 22-995 Dooley v. United States
of a U.S. government car parked by the curb. Because the car was owned by the
federal government and was driven by a federal employee in the course of his
employment, the plaintiff brought a claim for negligence against the United States
pursuant to the Federal Tort Claims Act (“FTCA”). The district court found that
the government employee acted negligently by opening the car door without
checking for incoming traffic; it also concluded that the plaintiff’s conduct was
comparatively negligent and assigned 40% liability to the plaintiff. Under New
York law, which governs this case, a court will find a plaintiff comparatively
negligent, and reduce a damages award accordingly, only if a plaintiff’s
negligence was a proximate cause of the accident. 1 A defendant, furthermore,
bears the burden of establishing both that a plaintiff’s conduct was negligent and
that a plaintiff’s negligence was a proximate cause of the injury.
1 Causation is typically described as having two components, causation in fact—a showing that the accident would not have occurred but for the plaintiff’s wrong—and proximity—a showing that the plaintiff’s wrong was sufficiently close in and significant in time, space, and foreseeability as to justify the plaintiff’s responsibility. See W. Page Keeton, et al., Prosser & Keeton on Law of Torts §§ 41-42, at 263-65, 272–73 (5th ed. 1984). At times, New York courts have, perhaps confusingly, united these two components and spoken of the requirement as one of proximate cause, even where often, as in this case, the issue is primarily one of cause in fact. Compare Akins v. Glens Falls City Sch. Dist., 424 N.E.2d 531, 535 (N.Y. 1981) (referring to causation in general terms) with Solomon by Solomon v. City of New York, 489 N.E.2d 1294, 1294 (N.Y. 1985) (referring only to proximate causation).
3 22-995 Dooley v. United States
The district court’s finding that the plaintiff here acted negligently may, in
several respects, be viewed as dubious on this record. But, and determinatively,
the district court failed to make the findings necessary to any holding that the
plaintiff’s negligent conduct sufficiently caused the collision so as to make the
plaintiff 40% responsible for the damages. Accordingly, and without reaching any
issue of plaintiff negligence, we VACATE and REMAND for reconsideration
consistent with this opinion.
BACKGROUND
On May 18, 2017, Sergeant Luis Disla (“Disla”), a recruiter for the United
States Marines, parked his assigned government vehicle on Burke Avenue in the
Bronx, near a high school he was scheduled to visit. Around the same time, Kevin
Dooley (“Dooley”), a delivery man employed by a local restaurant, was riding a
motorized bicycle down Burke Avenue. Dooley was riding his bike in the space
between the parked vehicles and the edge line of the westbound traffic lane of
Burke Avenue. 2 According to Dooley, he was driving straight, “in the middle” of
2In his testimony, Dooley characterized this space as a bike lane. Photographs taken at the time of the accident, as well as Disla’s testimony, indicate the space was not then clearly marked as a bike lane and only became a marked bike lane after the accident.
4 22-995 Dooley v. United States
the space between parked vehicles and the moving-traffic lane and was traveling
at around 15 miles per hour. App’x. 84. The weather conditions were clear, and
the posted speed limit was 25 miles per hour. Dooley recalled that traffic on the
main lane that day was light.
As Dooley approached, Disla opened the car door. Disla testified that he
did not recall looking in his mirror to check for any oncoming traffic before
opening his door. 3 Dooley averred that he saw Disla’s parked car from a distance,
but that he did not see an open door. Dooley hit the interior of the car’s open door.
Dooley stated that the right-hand side of his bicycle and the open door made
contact. 4
After hitting the car door, Dooley fell to the ground. Seeing Dooley injured,
Disla stepped out of his car and assisted Dooley. Disla testified that Dooley spoke
with slurred speech and angrily cursed at him. When emergency medical services
responded to the scene, Dooley argued with them. Dooley stated that immediately
3 In deposition statements, at one point, Disla stated that he had looked into his side mirror to ensure that there was no bicycle traffic, but he later withdrew this statement as a recollection of habit and practice rather than of his specific actions on the day of the collision. 4 The district court dismissed an alternative theory, presented by the defendant, that Disla had only unlatched and not fully opened the car door at the time of the collision.
5 22-995 Dooley v. United States
after the accident, he felt pain in his right knuckles and left leg. He sought medical
assistance later that night and again eight days later. Dooley sustained injuries to
his left knee and ankle, and he underwent knee surgery and other medical
procedures to treat his injuries.
Dooley filed a complaint against the United States, pursuant to the FTCA. 5
Dooley claimed that Disla acted negligently when he “suddenly” opened the car
door without exercising appropriate caution, and that, because the accident took
place as Disla was performing functions within the scope of his employment, the
United States was liable.
Prior to trial, Dooley and his domestic partner, Sherman Peterson
(“Peterson”), were deposed. Dooley stated that he smokes marijuana daily, but
that he does not smoke during work or on days he makes deliveries, and that he
had not consumed any drugs or alcohol on the day of the accident. Peterson, with
whom Dooley has lived for more than fourteen years, also testified that Dooley
5 Consistent with the FTCA’s requirements, Dooley had previously filed an administrative complaint with the relevant agency.
6 22-995 Dooley v. United States
smokes marijuana regularly but stressed that Dooley does not smoke on days that
he works, nor when running deliveries.
Dooley moved in limine to preclude admission of evidence of his use of
marijuana and alcohol. The district court granted this motion with respect to
evidence of Dooley’s alcohol use, finding the government had not argued that it
intended to offer evidence regarding Dooley’s use of alcohol prior to the day of
the accident, nor that Dooley had a habit of alcohol consumption. The district
court, however, denied Dooley’s motion with respect to evidence that Dooley had
consumed alcohol on the day of the accident, was under the influence of alcohol
at the time of the accident, or habitually consumed marijuana.
The district court conducted a bench trial and heard testimony from Dooley,
Peterson, and Disla. Dooley and Peterson again testified that while Dooley
regularly smoked marijuana, he did not smoke marijuana on the day of the
accident.
The district court found Dooley not “fully credible” because he was highly
interested in the outcome of the case and, occasionally, his testimony was not in
accord with other evidence in the record. Specifically, the district court held that
Dooley’s testimony that he does not smoke marijuana on days he is working
7 22-995 Dooley v. United States
lacked credibility, as there was uncontroverted testimony in the record that he
smokes marijuana multiple times a day.
Similarly, the district court determined that Peterson’s testimony was not
credible because, as Dooley’s domestic partner, he was also interested in the
outcome of the case, for he stood to benefit financially from any award of damages,
and because Peterson’s testimony was, at times, inconsistent. In particular, the
district court found that Peterson’s trial testimony that Dooley did not smoke
marijuana on the day of the accident was at odds with his deposition testimony
that Dooley smoked marijuana every day.
The district court also concluded that statements made by Disla after the
accident, which directly contradicted assertions he made in a contemporaneous
incident report, were not credible. Nonetheless, the district court deemed much
of Sergeant Disla’s trial testimony credible, particularly with regard to Dooley’s
seeming impairment at the time of the accident, as “there was no evidence that the
outcome of [the] lawsuit would have any effect on him or his career.” App’x. 534;
see also App’x 537–38.
The district court heard from three expert witnesses. Two of these, Dr.
McMahon and Dr. Bosco, testified as to the extent of Dooley’s physical injuries.
8 22-995 Dooley v. United States
The third, Dr. David Bizzak, a mechanical engineer proposed by the government,
conducted an accident-reconstruction analysis, but the district court “d[id] not
find his theory [to be] the most likely explanation for what occurred.” Although
the district court stated that it “found Dr. Bizzak to be credible on some points,”
the only aspect of Dr. Bizzak’s report on which the district court clearly relied was
his estimation, based on photographs from the day of the accident, that the
distance between the driver’s side of the car and the painted edge line of the
westbound lane on Burke Avenue—that is to say, the space where Dooley was
riding—was about seven feet wide and that Dooley was traveling “very close to
vehicles parked alongside the street.”
The district court expressly rejected Dr. Bizzak’s contention that on the day
of the accident Disla’s door was “unlatched” but “not yet pushed . . . open.” The
district court did not anywhere state that it accepted Dr. Bizzak’s view that “[h]ad
[Dooley] been riding in the center of the parking lane, he . . . would have safely
passed by the parked car with its unlatched door” (emphasis added).
There is no testimony accepted as credible by the district court as to the
amount of time that elapsed between Disla opening his door and Dooley hitting
9 22-995 Dooley v. United States
it. 6 Nor was there any other evidence in the record that would allow the district
court to determine whether any meaningful amount of time elapsed between Disla
opening the door and Dooley hitting the door such that Dooley may have avoided
the opened door. The district court made no findings on this question. 7
HOLDING
At the conclusion of the trial, the district court found that both Dooley and
Disla were at fault for causing the collision and apportioned liability 60% to the
United States and 40% to Dooley. The district court determined that Disla was
partly at fault because it was “likely that there was some ability on his part to have
been more prudent in checking for vehicles before opening his door.” App’x. 538.
6 In a statement, which the district court did not credit because it contradicted statements in the incident report that Disla had submitted to his employer, Disla claimed that he had opened the door and then reached back in to grab his cell phone prior to the collision. Dooley did testify that he attempted to brake when he saw the car door fully open. But he gave no indication as to time, other than his statement that he “probably” saw the parked car (but not any open door) for about twenty to thirty seconds before the accident occurred. 7 The nearest thing to a statement as to timing by the district court was its speculation, while
discussing damages, that the apparent lack of damage to the car door “could be explained by the possibility that [the] plaintiff had braked upon seeing the open door and ended up with just enough speed to cause hyperextension of the door but not fast enough to cause any actual damage to the interior of the door.” App’x. 537.
10 22-995 Dooley v. United States
The district court concluded Dooley was also negligent in three ways. First,
the district court found that Dooley was traveling “close” to parked cars. Second,
although Dooley “admit[ted] to going 15 miles per hour,” the district court found
“it likely he was going initially faster and at a rate that was too high for safe travel
so close to parked cars.” App’x. 538. Third, the district court found it was “more
likely than not that Dooley was impaired in his ability to operate the bicycle with
an appropriate degree of attention to the conditions of the road.” Id.
The district court then concluded that Dooley bore “a degree of fault” for
the collision “because the space between the lane of moving traffic and the parked
cars was quite large” and offered “an enormous amount of space for a bicycle to
maneuver itself and to avoid cars.” Id. It also found that “[a] reasonable bicyclist
will avoid coming close to parked cars on the right when abundant space is
available to his left.” Id. But the district court never determined what speed would
have been reasonable or what distance from the parked cars would have been
appropriate.
As to damages, the district court concluded that while Dooley may have
suffered significant pain following the accident, there was no evidence to support
a finding of future pain and suffering. Accordingly, the district court awarded
11 22-995 Dooley v. United States
Dooley $175,000 in past pain and suffering damages and did not award any future
pain and suffering damages. But due to its finding of comparative negligence and
the apportioned liability, the district court found that Dooley was entitled to
$105,000.
Dooley then filed an appeal. Dooley challenges the district court’s finding
that he was comparatively responsible for the accident, the district court’s
admission of evidence that he habitually smoked marijuana, and the amount and
type of damages awarded by the district court.
STANDARD OF REVIEW
In examining a judgment entered after a bench trial, we review the district
court’s conclusions of law and its application of law to the facts de novo, and we
review its findings of fact for clear error. Krist v. Kolombos Rest., Inc., 688 F.3d 89,
95 (2d Cir. 2012). We examine a district court’s findings of fact in support of an
FTCA damages award for clear error. Malmberg v. United States, 816 F.3d 185, 197
(2d Cir. 2016).
DISCUSSION
I.
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This is an action for negligence, brought pursuant to the FTCA against the
United States. The FTCA waives the sovereign immunity of the United States for
certain classes of torts claims, including damages claims for personal injury
“caused by the negligent or wrongful act or omission of an employee of the
Government while acting within the scope of his office or employment.” 28 U.S.C.
§ 1346(b)(1). See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80
(2d Cir. 2005). In resolving FTCA claims, “courts are bound to apply the law of
the state . . . where the [tort] occurred.” Borley v. United States, 22 F.4th 75, 78 (2d
Cir. 2021) (internal quotation marks omitted). Thus, because the accident took
place in the Bronx, we turn to New York torts law to resolve this dispute.
Under New York law, a torts plaintiff like Dooley, seeking to prove a
defendant’s negligence must show “(1) the existence of a duty . . . ; (2) a breach of
this duty; and (3) injury to the plaintiff as a result thereof.” Akins v. Glen Falls City
Sch. Dist., 424 N.E.2d 531, 535 (N.Y. 1981). To determine the existence and scope
of a duty, a court will consider “whether the relationship of the parties is such as
to give rise to a duty of care . . . , whether the plaintiff was within the zone of
foreseeable harm . . . and whether the accident was within the reasonably
foreseeable risks.” Di Ponzio v. Riordan, 679 N.E.2d 616, 618 (N.Y. 1997) (internal
13 22-995 Dooley v. United States
citations omitted). A “defendant’s negligence qualifies as a proximate cause
where it is a substantial cause of the events which produced the injury.” Mazella
v. Beals, 57 N.E.3d 1083, 1090 (N.Y. 2016) (internal quotations omitted); see also
Derdiarian v. Felix Contracting Corp., 414 N.E.2d 666, 670 (N.Y. 1980) (“To carry the
burden of proving a prima facie [negligence] case, the plaintiff must generally
show that the defendant’s negligence was a substantial cause of the events which
produced the injury.”).
II.
As Dooley’s claims arise from a road collision, we first focus on the duties
owed by motorists to bicyclists.
In New York, the Vehicle and Traffic Law (“VTL”) defines the duties of
motorists, and “[a] violation of the [VTL] constitutes negligence as a matter of
law.” Desio v. Cerebral Palsy Transp., Inc., 994 N.Y.S.2d 681, 682 (N.Y. App. Div.
2014). As relevant here, the VTL provides that “[n]o person shall open the door of
a motor vehicle on the side available to moving traffic unless and until it is
reasonably safe to do so.” N.Y. Veh. & Traf. Law § 1214 (McKinney 2023).
14 22-995 Dooley v. United States
Moreover, a motorist also has a duty “to keep a proper lookout and see what
can be seen through the reasonable use of his or her senses to avoid colliding with
other vehicles.” Carias v. Grove, 131 N.Y.S.3d 99, 100 (N.Y. App. Div. 2020). A
motorist must “keep a reasonably vigilant lookout for bicyclists.” Palma v.
Sherman, 867 N.Y.S.2d 111, 112 (N.Y. App. Div. 2008); see also Garcia v. BLS
Limousine Serv. of N.Y., Inc., 154 N.Y.S.3d 758, 758-59 (N.Y. App. Div. 2021) (holding
a driver acted negligently when he opened the door of his car when it was not safe
to do so and struck a bicyclist).
Disla testified that he did not recall looking at his rear mirror, or otherwise
taking any step to ensure there was no oncoming bicycle or pedestrian traffic,
before opening the door. The district court, thus, correctly found that Disla acted
negligently when he failed to prudently check for incoming traffic before opening
his door, as required of all motorists by state law.8
8In this respect, Disla’s negligence and proximate cause are established as a matter of law under New York law. One might question whether the district court’s statement, that it was “likely that there was some ability on [Disla’s] part to have been more prudent in checking for vehicles before opening his door,” fully captures the extent of Disla’s responsibility under New York law. App’x. 538. This could erroneously affect the allocation of damages the court made. Since we vacate on the basis of other errors, we need not consider this matter further.
15 22-995 Dooley v. United States
A determination that one party in a dooring accident acted negligently,
however, does not settle the dispute as “there may be more than one proximate
cause of an injury.” Mazella, 57 N.E.3d at 1091 (quoting Argentina v. Emery World
Wide Delivery Corp., 715 N.E.2d 495, 498 n.2 (N.Y. 1999)). New York has adopted a
comparative negligence framework, and in an action to recover damages for
personal injury, “the amount of damages otherwise recoverable shall be
diminished in the proportion which the culpable conduct attributable to the
[plaintiff] . . . bears to the culpable conduct which caused the damages.” N.Y.
C.P.L.R. § 1411. In such circumstances, “liability is split between plaintiffs and
defendants based on the relative culpability and causal significance of their
conduct.” Integrated Waste Servs., Inc. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 300 (2d
Cir. 1997).
In the context of a dooring accident, a plaintiff’s own violation of the traffic
law could be a reason for finding a plaintiff’s conduct was negligent. Under the
VTL, a bicyclist, like Dooley, “is required to use reasonable care for his or her own
safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing
himself or herself in a dangerous position.” Palma, 867 N.Y.S.2d at 113. At the
same time, a bicyclist who exercises due care is entitled to assume that other
16 22-995 Dooley v. United States
bicyclists and vehicle drivers will also obey the statutes governing traffic. 9 Id.; see
also Rosenberg v. Kotsek, 837 N.Y.S.2d 343, 344 (N.Y. App. Div. 2007).
For a negligent plaintiff to be held liable, however, the defendant bears the
burden of showing not only that the plaintiff was negligent, but that such
negligence was a cause of the accident. Under New York law, “evidence of
negligence is not enough by itself to establish liability, for it must also be proved
that the negligence was a proximate, or legal, cause of the event that produced the
harm sustained by the plaintiff.” Hain v. Jamison, 68 N.E.3d 1233, 1236-37 (N.Y.
2016) (internal quotations marks omitted); see also Arbegast v. Bd. of Educ. of S. New
Berlin Cent. Sch., 480 N.E.2d 365, 370 (N.Y. 1985) (“[W]hat the [comparative
negligence] statute requires comparison of is not negligence but conduct which,
for whatever reason, the law deems blameworthy, in order to fix the relationship
of each party’s conduct to the injury . . . . Comparative causation is . . . the more
accurate description.”). By contrast, “proximate cause will be found lacking where
9And this expectation, that others abide by their own duties of care, also informs whether a particular risk is foreseeable and, in turn, whether a motorist’s failure to anticipate a danger, if another driver abided by the applicable rules and regulations, constitutes negligence, and, if so, how much.
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the . . . act merely ‘furnished the occasion for’ but did not cause” the injury. Hain,
68 N.E.3d at 1238 (quoting Derdiarian, 414 N.E.2d at 666). 10
The existence of negligence, when clear enough, may constitute evidence of
causation, if the behavior that constitutes negligence sufficiently increases the risk
of what, in fact, actually occurred. See Liriano v. Hobart Corp., 170 F.3d 264, 271 (2d
Cir. 1999) (“When a defendant’s negligent act is deemed wrongful precisely
because it has a strong propensity to cause the type of injury that ensued, that very
causal tendency is evidence enough to establish a prima facie case of cause-in-
fact.”); see also Martin v. Herzog, 126 N.E. 814, 816 (N.Y. 1920) (Cardozo, J.). A party,
thus, need not “introduce detailed evidence of but-for causal connection,” Liriano,
170 F.3d at 272, between negligent conduct and injury, where (a) the other party’s
conduct is manifestly negligent, and (b) where that manifest negligence, in fact
and clearly, increased the likelihood of the injury that actually occurred. Cf.
Zuchowicz v. United States, 140 F.3d 381, 390-91 (2d Cir. 1998) (describing
circumstances in which, in view of manifest negligence, “it is up to the negligent
10Since, in New York, comparative negligence is defined as including relative causation, when plaintiff challenged the court’s finding of comparative negligence, he necessarily challenged the finding of causation in all its forms. As a result, the dissent is simply wrong in its assertion that he did not raise the issue of causation.
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party to bring in evidence denying but for cause”). Absent both of these, a party
claiming negligence must provide some more direct evidence that such allegedly
negligent conduct was also a cause of the injuries.
We therefore must consider, if Dooley is to be held liable, whether the
defendant has shown that his conduct was not only wrongful or negligent, but
also was a cause of the event that resulted in his injuries.
III.
There are reasons to doubt whether the district court correctly determined
that Dooley was negligent in some of his conduct. 11 But, assuming arguendo that
the district court correctly determined that Dooley’s behavior was negligent, we
conclude that Dooley’s asserted negligence was not shown to be a cause of either
the accident or of his injuries.
The district court concluded that Dooley was negligent in three ways: by
speeding, riding too close to the parked cars, and “more likely than not” being
“impaired” at the time of the accident. App’x. 538. But the district court did not
11We do not question the district court’s findings of fact, to which we owe deference. Rather, our doubts arise from the district court’s determination, upon application of the law to these facts, that Dooley’s conduct constituted negligence.
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make findings as to: (a) what speed would not have been negligent; and (b) what
distance from the parked car was required. It made no findings as to how Dooley’s
conduct—had he not acted negligently—would have avoided his injuries. And,
in this respect, we note that if the district court erroneously found causation as to
any one of the grounds it relied on, a vacatur and remand is required. This is so
because the assessment of Dooley’s liability at 40% was based on his being
responsible in all three ways. And, if he was not responsible in all of these ways,
the damages properly charged to him might well be less.
A.
First, the defendant failed to establish why Dooley’s alleged speeding was a
cause of his injuries. Dooley testified that he rode his bicycle at 15 miles per hour,
well under the 25 miles-per-hour speed limit posted on Burke Avenue.
Nevertheless, the district court, without pointing to any support in the record, and
without specifying whether it believed that Dooley was driving above or below
the posted speed limit, found that it was likely that Dooley was initially riding “at
20 22-995 Dooley v. United States
a rate that was too high for safe travel so close to parked cars.” 12 App’x. 538. By
driving at an unspecified high speed, the district court concluded, Dooley acted
negligently, because “a prudent bicyclist will reduce speed” when travelling close
to parked cars. Id.
But even assuming that Dooley was negligently speeding, the district court
made no finding of fact that would establish that Dooley’s speeding was a cause
of the accident. The record does not show the time between the opening of the car
door and its being hit by the bicycle. There is nothing in the record that shows that
there was enough time for Dooley to swerve in a different direction to avoid the
door or sufficiently to brake and thereby avoid the collision had he been driving
at a lower speed. Without a finding of what speed would have been proper, and
how, had Dooley been riding at that speed, there would have been time to avoid
12Significantly, New York courts have found that bicyclists traveling at speeds under the speed limit and within the average cruising speed for bicycle traffic are not comparatively negligent for failing to brake in time to avoid a collision. See, e.g., Zhong v. Matranga, 173 N.Y.S.3d 238, 242 (N.Y. App. Div. 2022); Sarac-Marshall v. Mikalopas, 4 N.Y.S.3d 195, 196 (N.Y. App. Div. 2015).
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the collision, causation has not been shown. 13 Whatever negligence Dooley’s
speeding may have constituted, it was not shown to be a cause of the accident.
B.
We next consider the district court’s determination that Dooley acted
negligently by riding his bicycle while impaired by marijuana. But even if the
district court could find that Dooley was so impaired, there is no evidence in the
record sufficient to meet defendant’s burden of showing that such impairment was
a cause of the accident.
The district court determined that Dooley was likely riding his bicycle while
impaired, based on: (a) the uncontroverted evidence that Dooley was in the habit
of smoking marijuana daily; (b) its finding that Dooley’s and Peterson’s testimony
that Dooley refrained from smoking on work days or on deliveries was not
13This is analogous to the celebrated “darting out” torts cases, where a speeding driver is not held liable for hitting a child who “darts out” into the road, and there is no evidence in the record that the driver had enough time to avoid a collision. See W. Keeton, et al., supra, § 29, at 162-63; § 44, at 306; see also Zhong, 173 N.Y.S.3d at 241 (holding defendant not liable where defendant “was left with no time to react, stop, or maneuver around plaintiff to avoid striking [plaintiff] when she darted out . . . into the middle of the bicycle lane”); Brown v. Muniz, 878 N.Y.S.2d 683, 685 (N.Y. App. Div. 2009) (holding defendant not liable where “driver did not have time to react to avoid plaintiff”).
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credible; and (c) Disla’s testimony at trial. 14 Disla stated that he believed Dooley
was “under the influence of something” at the time of the collision, because
“[Dooley’s] words were slurred,” and “[t]hey tied into each other.” App’x. 238.
Disla also stressed that Dooley “was angry, cursed at [him] multiple times,” and
was “uncooperative as far as trying to take [his] help and the help of the EMTs.”
Id.
The district court relied on Disla’s testimony because it determined that, as
to Dooley’s behavior after the collision, he was a credible witness. 15 That
assessment was predicated on a misreading of Disla’s interest in the outcome of
the case. Specifically, the district court found that “there was no evidence that the
outcome of [the] lawsuit would have any effect on him or his career,” and that he
was thus “not interested” in the outcome of the lawsuit. App’x. 534.
It is true that, pursuant to the FTCA, were the district court to find that Disla
acted negligently, his employer, the United States, would be financially liable.
14 The district court also referenced Dooley’s “refusal to cooperate . . . his cursing and his leaving the scene before obtaining any medical assistance” as indicating “that he was acting with a . . . lack of control.” App’x. 538. The court predicated those references on Disla’s testimony. 15 It is noteworthy that the district court found Disla not credible as to at least one of his accounts
of the events—written several days after the accident—which contradicted his contemporaneous description of the collision.
23 22-995 Dooley v. United States
Disla’s employer, however, could still hold him responsible for his conduct, and
impose an appropriate reprimand or penalty. Indeed, in enacting the FTCA,
Congress sought to “shift liability costs away from the individual employees and
place them on their employer: the United States.” Carroll v. Trump, 49 F.4th 759,
765 (2d Cir. 2022). But Congress certainly did not limit an employer’s ability to
sanction a federal employee for negligent misconduct. Id. at 770 n.8 (discussing
different ways in which federal employees covered by the FTCA, including the
President, may still be subject to discipline or sanction for misconduct). In finding
Disla had no interest in the outcome of the case, the district court ignored the
impact that a non-monetary, disciplinary sanction might have on Disla’s career.
If Disla’s statements regarding Dooley’s erratic behavior were not credible,
then there was no evidence on the record, other than evidence of habit, to
corroborate that Dooley was impaired at the time of the accident. But, under New
York law, evidence of habitual marijuana use, alone, may be insufficient to show
Dooley was actually impaired at the time of the accident. See People v. Cruz, 399
N.E.2d 513, 516 (N.Y. 1979); People v. Kahn, 610 N.Y.S. 2d 701, 703 (N.Y. Crim. Ct.
1994). There are, therefore, reasons to doubt the adequacy of the district court’s
24 22-995 Dooley v. United States
conclusion that Dooley acted negligently because he was impaired when the
accident occurred.
But, in the end, a finding that Dooley was impaired, even if correct, still does
not show that such impairment was a cause of the accident so as to render Dooley
liable. For Dooley’s alleged impairment to have been a proximate cause of the
collision, and for Dooley therefore to be liable, Dooley must have lacked the ability
to act as a prudent bicyclist would have at the time the collision occurred. More
specifically, Dooley’s supposed impairment must have made it more difficult for
him to avoid hitting the open door. And such an assessment, again, depends on
the time between the opening of the door and its collision with Dooley’s bicycle.
As with Dooley’s alleged speeding, for Dooley’s alleged impairment to have made
a difference, there must have been sufficient time during which a non-impaired
plaintiff would have acted differently from an impaired one. Without such
evidence, the defendant has made no showing of causation.
C.
Finally, the district court failed to explain why Dooley’s failure to ride his
bicycle at a greater distance from the parked cars was a substantial cause of his
injuries.
25 22-995 Dooley v. United States
The district court concluded that Dooley breached his duty of care by
driving too close to cars parked along the curb. At the time of the accident, there
was no marked bicycle lane on Burke Avenue. Dooley drove his bike in the
shoulder, a dedicated space between the sidewalk and the traffic lane. This is
where bicyclists can ride with relative ease, avoiding the vehicular traffic in the
main lane. 16 Relying on an estimate by the defendant’s expert witness, the district
court concluded that the space between the parked cars on one edge of the
shoulder and the main traffic lane on the other edge was about seven feet. Dooley
testified that he drove in the middle of the lane – by the district court’s estimate –
at around three-and-a-half feet from most of the cars parked along the shoulder.
Riding “so close” to the parked cars, the district court concluded, was
negligent because a reasonable bicyclist would have ridden at a greater distance
from parked cars, closer to the edge of the main traffic lane. While riding on the
shoulder, prudent bicyclists are reasonably expected to remain alert to dangers
16“[A]ny bicycle . . . shall be driven either on a usable bicycle . . . lane or, if a usable bicycle . . . lane has not been provided, near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder in such a manner as to prevent undue interference with the flow of traffic except when . . . reasonably necessary to avoid conditions that would make it unsafe to continue along near the right-hand curb or edge.” N.Y. Veh. & Traf. Law § 1234(a) (McKinney 2023).
26 22-995 Dooley v. United States
arising from cars traveling down the main traffic lane, vehicles parked or entering
and exiting parking spots, and other bicyclists. See, generally, Palma, 867 N.Y.S.2d
at 113. The question raised by the district court, however, is whether, to comply
with their duty of care, bicyclists must ride at a particular distance from parked
cars. The VTL does not impose such a specific requirement on bicyclists. Nor, and
significantly, did the district court specify how much further away from the
parked cars, and closer to the main traffic lane, Dooley or any other reasonable
bicyclist should have been riding his bike.
Given that we do not have any evidence as to the time between the door
opening and the collision, it is hard to see how the accident could have been
avoided, unless Dooley was so close to the main traffic lane that even had the door
opened as he rode by, it would not have hit his bicycle. Notably, the district court
did not come close to holding that Dooley should have been driving that near the
main traffic lane. And such a holding, in view of any cyclist’s reasonable fear of
driving too close to the traffic lane, would have been dubious.
The dissent asserts that the district court did hold that Dooley could have
safely avoided the collision by riding closer to the traffic lane. The sole possible
factual basis for such a holding is a comment by the government expert, Dr.
27 22-995 Dooley v. United States
Bizzak. Significantly, however, the court rejected much of Dr. Bizzak’s testimony,
and the only part of his testimony the court clearly accepted was the size of the
space between moving traffic and the parked cars.
Under the circumstances, it is once again hard to see how the defendant has
established causation. There is simply no evidence sufficient to say that had
Dooley been riding where it was reasonable for him to ride, the accident would
have been avoided.
Here too, then, as with the district court’s conclusions with respect to speed
and impairment, the defendant has not established causation. Assuming that the
district court correctly defined Dooley’s duty of care, there is no evidence that
compliance with such behavior would have avoided the accident. Without such
evidence of causation, charging Dooley with comparative negligence was error. 17
17The dissent reads well, but I fear it misses the most basic causation requirement in torts. Leave aside that it ignores applicable New York law on evidence of impairment, on what is speeding on a bicycle, and on where bicyclists should ride when there is no demarcated bike lane. Leave aside that conclusory statements by trial courts as to causation and negligence, which are not based on findings of fact, are not due deference on appeal. Even if those flaws could be ignored, the district court opinion cannot stand. Without a finding as to the time between the door opening and the collision, there is no way of concluding that speeding or impairment or, probably, where on the shoulder plaintiff was riding increased the chances of the accident. Without such a finding, the case is like that of the speeder who happens to be under a tree when it falls. Berry v. Sugar
28 22-995 Dooley v. United States
***
It is possible that, on remand, appropriate evidence of causation may be
found as to some of Dooley’s allegedly negligent behavior. In this respect we
repeat that if the district court ultimately erred with respect to Dooley’s negligence
being a cause of the accident as to any of the three grounds it relied upon, the
allocation of damages must be re-evaluated. As noted above, Dooley’s relative
responsibility, which the court deemed 40%, depended on the district court’s
finding that Dooley was responsible in all three ways. If any of these was
erroneous, Dooley’s responsibility would be less and, hence, would need to be re-
calculated.
Notch Borough, 191 Pa. 345, 43 A. 240 (1899). That case is in every torts case book, and, like the darting out cases cited in the opinion, it is there as a classic example of no liability on the speeder. There is no liability because the requirement of causation is not met! Some writers call this a failure to show a causal link. More classically, it is treated as a failure to show proximate cause. It is, incidentally, analogous to the failure to prove loss causation in securities fraud cases with which federal judges are understandably more acquainted. In any event, it is possible that the plaintiff was speeding. It is possible that the plaintiff was riding too close to the parked cars. It is possible that he was impaired, and it is possible that had he not been negligent in one of these ways he could have avoided the accident. But, contrary to the dissent, the defendant presented no evidence that could support such a conclusion.
29 22-995 Dooley v. United States
IV.
For substantially the reasons given by the district court, we find no error in
that court’s assessment of total damages and in its denial of damages for future
pain and suffering. We affirm those findings.
****
For all the above reasons, the district court’s holding is AFFIRMED with
respect to the extent of total damages and VACATED with respect to the
allocations of these damages between plaintiff and defendant. The case is
remanded for further proceedings consistent with this opinion.
30 22-995 Dooley v. United States
PARK, Circuit Judge, dissenting:
Kevin Dooley rode an e-bike down a New York City street while probably high on marijuana and going too fast. Although there was plenty of space for bicycles, he chose to ride close to a row of parked cars and ran into an opened door. He thus contributed to his own injuries, diminishing his damages. The district court made these findings after a three-day trial. Dooley seeks reversal for clear error. But there was no such error, so the majority reverses instead based on a supposed legal error that the district court did not make and that Dooley did not raise. We routinely warn litigants against “disguising their claims of error as ‘questions of law.’” Guyadin v. Gonzales, 449 F.3d 465, 468 (2d Cir. 2006). But the majority does just that, and like Dooley, it fails to stay in its lane. I respectfully dissent.
First, the majority claims that the district court did not find causation, but this is incorrect. See Maj. Op. at 4, 20-28. The order speaks for itself:
If I find that plaintiff was negligent and that his negligence contributed to causing the accident, I must then apportion the fault between the plaintiff and the defendant. . . . [W]e credit Disla’s testimony that Dooley appeared impaired, particularly given that Dooley was a habitual marijuana smoker. We thus find it more likely than not that Dooley was impaired in his ability to operate the bicycle with an appropriate degree of attention to the conditions of the road. . . . We also find that Dooley bears a degree of fault because the space between the lane of moving traffic and the parked cars was quite wide—7 feet wide—which is an enormous amount of space for a bicycle to maneuver itself and to avoid cars. A reasonable bicyclist will avoid coming close to parked cars on the right when abundant space is available to his left. And when the necessity of traffic requires being close to a parked car, a prudent bicyclist will reduce speed. Plaintiff . . . was going initially faster and at a rate that was too high for safe travel so close to parked cars. . . . Having considered the evidence, I apportion fault on the accident 40 percent to plaintiff.
App’x at A-532, A-537 to -38. Based on these findings, the district court reasonably concluded that Dooley’s negligence played a role in causing the accident. Specifically, Dooley was “more likely than not . . . impaired in his ability to operate the bicycle with an appropriate degree of attention”; his lane positioning left insufficient space “to maneuver . . . and to avoid cars”; and his speed “was too high for safe travel so close to parked cars.” Id. at A-538. 1
The majority says this is not enough, and it faults the district court for failing to make additional findings about (1) “why Dooley’s alleged speeding was a cause of his injuries,” (2) how his impairment by marijuana “was a cause of the accident,” and (3) why his failure to
1 Disla testified that Dooley—an admitted daily marijuana user— appeared to be “under the influence of something” immediately following the accident, either “drunk or high,” “slurr[ing]” his words, and refusing “the help of the EMTs.” App’x at A238, A287. The government’s accident reconstruction expert, Dr. David J. Bizzak, opined that Dooley traveled “very close to vehicles parked alongside the street, as opposed to within the center of the lane available for him to travel, which was approximately 7 feet wide.” App’x for Appellee at DA24; cf. N.Y.C. DEP’T OF TRANSP., STREET DESIGN MANUAL 70 (3d ed. 2020) (noting that a standard unprotected bicycle lane in New York is five to six feet wide). “Had [Dooley] been riding in the center of the parking lane, he . . . would have safely passed by the parked car.” App’x for Appellee at DA25.
2 ride “at a greater distance from the parked cars was a substantial cause of his injuries.” Maj. Op. at 20, 22, 25. 2 But as the majority notes in its discussion of the legal standards, New York law does not require findings of but-for causation. See id. at 18-19 (evidence of causation is not required when the conduct is manifestly negligent and increased the likelihood of the injury that occurred); see also Zuchowicz v. United States, 140 F.3d 381, 390 (2d Cir. 1998) (Calabresi, J.) (“[I]f (a) a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm.”). Operating an e-bike while high on marijuana, speeding, and riding close to parked cars is manifest negligence that clearly increases the likelihood of an accident. That is common sense. But even if the majority disagrees, we do not vacate bench trial findings for insufficient explanation unless we cannot exercise “intelligent appellate review.” Krieger v. Gold Bond Bldg. Prods., 863
2 The majority goes even further, suggesting that the district court had to made evidentiary findings about “the time between the opening of the car door and its being hit by the bicycle,” Maj. Op. at 21, “what speed would have been proper,” id., and “how much further away from the parked cars” Dooley should have been riding, id. at 27. As the majority knows, it would be impossible to make such findings here. Importantly, the district court did conclude that Dooley had “an enormous amount of space for a bicycle to maneuver itself and to avoid cars,” but unlike a “reasonable bicyclist,” Dooley failed to “avoid coming close to parked cars” even though there was “abundant space” to do so. App’x at A-538. This case is thus unlike the “darting out” cases or others in which there was nothing the driver could have done differently to avoid the accident.
3 F.2d 1091, 1097 (2d Cir. 1988) (explaining that “nothing in the Rules requires . . . punctilious detail” (cleaned up)). We plainly can here.
Second, the majority violates the principle of party presentation by recasting Dooley’s arguments as a purported legal error. “Under the Federal Tort Claims Act, . . . questions as to causation are . . . subject to the clearly erroneous standard,” Korek v. United States, 734 F.2d 923, 927 (2d Cir. 1984), and “[w]here there are two permissible views of the evidence,” as here, “the factfinder’s choice between them cannot be clearly erroneous,” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985) (citations omitted). 3
To avoid this highly deferential standard of review, the majority reimagines Dooley’s arguments. His brief raised five numbered grounds for reversal, but the majority adopts none of them. See Appellant’s Br. at 1-3. 4 Instead, the majority extracts from
3 The district court’s findings expressly relied on witness credibility; it credited both witnesses’ testimonies in part, including Disla’s testimony on intoxication and Dr. Bizzak’s estimate of the seven feet available in the lane. See App’x at A534, A537- to -38. And “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. City of Bessemer City, 470 U.S. 564, 575-76 (1985) (citations omitted). But see Maj. Op. at 23-24 (second guessing the district court’s credibility determination based on speculation that it “ignored the impact that a non-monetary, disciplinary sanction might have on Disla’s career”). 4 These were that (1) a violation of New York Vehicle and Traffic Law § 1214 excludes a finding of comparative negligence as a matter of law, (2) the district court erred in finding Dooley intoxicated, (3) the district court erred in finding that Dooley’s intoxication contributed to the accident,
4 Dooley’s factual challenges questions about “causation in all its forms.” Maj. Op. at 18 n.10. This violates the principle of party presentation. See United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). “We do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties. Counsel almost always know a great deal more about their cases than we do.” United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (R. Arnold, J., concurring in denial of rehearing en banc).
The district court did its job, holding a trial and making reasonable findings of fact. Now we should do ours and afford those findings appropriate deference. I respectfully dissent.
(4) the district court erred in failing to award damages for future pain and suffering, and (5) the district court awarded inadequate damages. See Appellant’s Br. at 1-3. At oral argument, Dooley abandoned some of these theories in favor of others. See Oral Arg. at 2:20-3:50 (disclaiming the first argument); id. at 8:45-10:59 (disputing, for the first time, the district court’s causation finding). But “normally we will not consider arguments raised for the first time at or after oral argument.” United States v. Quinones, 317 F.3d 86, 90 n.2 (2d Cir. 2003) (cleaned up).