Josephine B. Wyletal v. United States

907 F.2d 49, 1990 WL 94706

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 9, 1990
• Docket: 89-2727
• Status: Published

Opinions

FLAUM, Circuit Judge.

Josephine Wyletal, a lively eighty-five year old widow with a cataract in her left eye, was walking eastbound on the north side of Oakton Street in Skokie, Illinois at 11:00 a.m. on a cloudy day in November. She was not wearing her glasses. At the same time, a letter carrier for the United States Postal Service was hurriedly delivering mail by foot heading west on the north side of Oakton Street. As Mrs. Wyletal proceeded along the sidewalk, the postal carrier emerged from a recessed doorway. Neither saw the other and they collided. The impact knocked Mrs. Wyletal to the ground breaking her hip while the postal carrier, looking on in bewilderment, tried to grab her and prevent her fall.

To receive compensation for her injuries, Mrs. Wyletal filed an action under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. During the bench trial, Mrs. Wyletal and the postal carrier presented conflicting testimony as to how the collision occurred. Mrs. Wyletal testified she was hit from the back, while the postal carrier testified they collided head-on. The district court reviewed all the evidence presented and concluded that the precise way the accident occurred was a mystery but that one thing was for sure: these two people walked into each other without seeing the other. In light of parties’ duties to keep a proper lookout when walking down the street so as not to collide with another person, the judge concluded both parties, by not seeing the other, breached that duty of care and were equally negligent. Pursuant to its conclusions, the district court granted approximately $40,000 in special damages and $10,000 in pain and suffering to Mrs. Wyle-tal. Under the doctrine of comparative negligence, however, Mrs. Wyletal received a judgment against the defendant in the amount of $25,000.¹

Mrs. Wyletal appeals the district court’s judgment. She claims there is no evidence of her comparative negligence and that the damage award was inadequate. We affirm the district court’s decisions on both claims.

I.

This Court has previously determined that the appropriate standard of review for factual findings in a Federal Tort Claims Act case is whether the district court was clearly erroneous. Cicero v. United States, 812 F.2d 1040, 1041 (7th Cir.1987).

Under this limited standard of review, we will not second guess a district court’s factual finding unless left with the definite and firm conviction that a mistake has been committed. As long as the district court’s account of the evidence is plausible in light of the record viewed in its entirety, we may not reverse it even though we are convinced that we would have weighed the evidence differently.

Nemmers v. United States, 870 F.2d 426, 429 (7th Cir.1989) (citations omitted).

Mrs. Wyletal’s first claim alleges that the facts of the case do not support a finding of comparative negligence. Viewing the record as a whole we cannot conclude the district court’s findings were clearly erroneous. The district judge was presented with conflicting evidence. Mrs. Wyletal stated she was hit from the back and the mail carrier insisted it was a head-on collision. The district judge was persuaded that the key fact was that neither party saw the other. From this finding, he concluded that both parties were equally at fault. To reach this result, the judge clearly determined that, although he couldn’t tell precisely how the crash occurred, the collision was such that either party could have avoided it had they been looking. This is the only logical conclusion that can be read from the judge’s findings since he found both parties breached their duty to keep an adequate lookout. This factual finding by the district court is surely plausible, and we are not left with “the definite and firm conviction that a mistake has been committed.” Id. at 429. Accordingly, the district court’s findings of comparative negligence are not clearly erroneous.

Mrs. Wyletal’s other claim on appeal is that the district court’s award of damages was inadequate. In review of this claim, we note that “while the components and measure of damages in a Federal Tort Claims Act case is taken from the law of the state where the tort occurred, an award of damages is a factual finding, protected by Rule 52(a).” Ingraham v. United States, 808 F.2d 1075, 1081 (5th Cir.1987) (citation omitted). Therefore, an “appellate court will only set aside the district court’s findings when those findings are clearly erroneous.” DePass v. United States, 721 F.2d 203, 205 (7th Cir.1983) (district court’s denial of damages for alleged increased risk of cardiovascular disease not clearly erroneous).

Based on the record before us, we cannot say that the district court’s damage calculation was clearly erroneous. The trial court considered all the evidence presented at the bench trial and awarded the full amount of Mrs. Wyletal’s medical bills to her, approximately $40,000. The award was decreased by fifty percent because of her comparative negligence, a finding we held earlier to not be clearly erroneous.

The remainder of the damages granted, $10,000, was an award for pain and suffering. It too was reduced fifty percent due to Mrs. Wyletal’s comparative negligence. The district court’s award of damages for pain and suffering was also based on factual findings that cannot be disturbed unless clearly erroneous. See Leeper v. United States, 756 F.2d 300, 307 (3rd Cir.1985). The judge, in granting his award, considered all the evidence before him. He considered Mrs. Wyletal’s testimony that her pain “was murder” the first few months as well as evidence of continued pain and decreased mobility. He weighed this evidence against his own observations of Mrs. Wyletal in the courtroom and awarded her $10,000 in pain and suffering.

Although we may have made different factual findings related to pain and suffering, the appropriate standard of review does not allow us to substitute our findings for those of the district court. Rather, we must assess whether the district court’s findings are sufficiently supported by the record. We conclude the district court’s findings are sustained by the evidence in the record. Therefore, although the district court’s award for pain and suffering may be on the low side of what we would grant, it is not clearly erroneous.

II.

For the foregoing reasons, the district court’s finding of fifty percent comparative negligence and its award of damages is Affirmed.

1 . A case brought under the Federal Torts Claim Act is governed by "the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b); see Campbell v. United States, 904 F.2d 1188, 1191 (7th Cir.1990). The district court, therefore, appropriately noted that the Illinois Supreme Court has adopted the doctrine of comparative negligence in Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886 (1981) and applied that law to this case.