Knierim v. United States Government Department of the Navy

802 F. Supp. 2d 965, 2011 U.S. Dist. LEXIS 79829, 2011 WL 2844846
CourtDistrict Court, S.D. Indiana
DecidedJuly 14, 2011
DocketNo. 2:09-cv-00367-LJM-DKL
StatusPublished
Cited by2 cases

This text of 802 F. Supp. 2d 965 (Knierim v. United States Government Department of the Navy) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knierim v. United States Government Department of the Navy, 802 F. Supp. 2d 965, 2011 U.S. Dist. LEXIS 79829, 2011 WL 2844846 (S.D. Ind. 2011).

Opinion

MEMORANDUM OPINION AND ORDER

LARRY J. McKINNEY, District Judge.

This matter comes before the Court for a decision on the merits following a bench [968]*968trial. This case is a wrongful death action under the Federal Tort Claims Act (“FTCA”) filed by plaintiff, Janella Knierim (“Mrs. Knierim”), Personal Representative of the Estate of Patrick Joseph Knierim (“Mr. Knierim”), against defendant, United States Government Department of the Navy (“Navy”). Mrs. Knierim seeks damages for the death of Mr. Knierim in a vehicle accident with Electrician’s Mater First Class Jeffrey Rosado (“EMI Rosa-do”), a Navy recruiter. On June 14-15, 2011, the Court conducted a bench trial in this matter in Terre Haute, Indiana. Mrs. Knierim appeared in person and by counsel, James 0. McDonald. The Navy appeared by counsel, Margaret Schutte and Thomas Kieper.

This Memorandum Opinion and Order is intended to serve as the Court’s findings of fact and conclusions of law after having examined the entire record and after having determined the credibility of the witnesses as contemplated by Rule 52(a) of the Federal Rules of Civil Procedure. Any factual statement or finding more appropriately considered a conclusion of law shall be so deemed and vice versa.

I. FINDINGS OF FACT

A. THE ACCIDENT

On May 30, 2008, EMI Rosado, who at the time was acting within the scope of his employment with the Navy, was operating a 2007 Chevrolet Impala (“Vehicle”) owned by the General Services Administration. Joint Stipulation of Facts (“JSF”) [Dkt. No. 55] ¶ 1. EMI Rosado maintained a valid Indiana driver’s license expiring June 5, 2013. Id. ¶ 4. EMI Rosado was driving from the MEPS Processing Station in Indianapolis, Indiana with a potential recruit, Brandon Hathaway, back to Mr. Hathaway’s residence in Brazil, Indiana. Rosa-do Dep. [Stip. Exh. 31] 29:13-23. EMI Rosado exited Interstate 70 and began traveling north on State Highway 59 (“Highway 59”). Id.; JSF ¶ 10.

Mr. Knierim was traveling north on Highway 59 on his motorcycle (“Motorcycle”) approaching the intersection of Highway 59 and White Rock Road in Clay County, Indiana, when the Vehicle struck him from behind. JSF ¶ 1. Mr. Knierim had brought the Motorcycle to a stop or near stop and was preparing to turn west onto White Rock Road. Id. ¶ 5; Fagg Dep. [Stip. Exh. 32] 5:19-6:13. Melvin L. Fagg, an employee of the Clay County Highway Department who was traveling south in his dump truck on Highway 59, saw Mr. Knierim’s turn signal activated. Fagg Dep. 5:4-15, 6:14-21. EMI Rosado testified that he did not see Mr. Knierim’s turn signal. JSF ¶ 6. Immediately prior to the accident, EMI Rosado was neither speaking to Mr. Hathaway, who was asleep in the passenger seat of the Vehicle, nor using a cell phone. Id. ¶¶ 8-9; Rosado Dep. 27:2-6.

The posted speed limit at the intersection of Highway 59 and White Rock Road was forty miles per hour. JSF ¶ 14. A half a second prior to the accident, the Vehicle was traveling at fifty-seven miles per hour, down from its speed of sixty miles per hour one to two seconds before the accident. Bollinger Report [Stip. Exh. 17] at 6; see also JSF ¶ 15. The roadway to the right of the Motorcycle was wide enough to allow the Vehicle to pass on the right and continue north on Highway 59, and there was no other vehicle preventing EMI Rosado from moving the Vehicle to the right. Id. ¶ 21. EMI Rosado slightly swerved the Vehicle but made contact with the Motorcycle. T. Pearce Dep. [Stip. Exh. 28] 9:1-5. Neither vehicle left preaccident skid marks. Carter Dep. [Stip. Exh. 30] 10:8-15,11:5-16. The Motorcycle did, however, leave a post-accident scuff mark. Id. at 11:20-12:5.

[969]*969Following the impact, EMI Rosado brought the Vehicle to a controlled stop on the side of Highway 59. Id. at 9:16-24. Emergency personnel arrived and transported Mr. Knierim via ambulance to St. Vincent Clay Hospital, where he was pronounced dead. Autopsy Report [Stip. Exh. 15] at 2. The death certificate listed the cause of death as “Blunt Force Trauma to Head and Neck.” JSF ¶ 2. At the time of death, Mr. Knierim was sixty-three years old. Id. ¶ 23.

As a result of the collision, EMI Rosado pleaded guilty to driving 60 miles per hour in a 40 mile per hour speed zone and following too closely in Clay Superior Court. Id. ¶ 20.

B. BIOGRAPHICAL INFORMATION

By all accounts, Mr. Knierim lived a happy life. Mr. Knierim and Mrs. Knierim, who was born in mid-spring 1948, were married on July 18, 1967, and had been married continuously for over forty years at the time of the accident. Id. ¶¶ 25, 41. The Knierims met during Mrs. Knierim’s senior year of high school, approximately 1965 or 1966, in Brazil, Indiana. J. Knierim Trial Testimony. Following high school, Mrs. Knierim entered college at Indiana State University but quit when she became pregnant with their daughter, Michelle, who was born in 1968. Id. The Knierims also later had a son, Robert. Id.

Mr. Knierim had a number of siblings, three of whom are still living. His two oldest sisters, Sister Imelda (Catherine) and Sister Bernadine (Nancy) the oldest of whom is eighty-two, are nuns. Obituary for Patrick Knierim [Stip. Exh. 6]. Mr. Knierim’s other surviving sister, Rosemary, lives with her husband in St. Louis. Id. Two of Mr. Knierim’s siblings passed away before him. His brother, William, died in February 2008. Id. His sister, Theresa, died of a stroke in 1984. Id. Both of Mr. Knierim’s parents predeceased him. Id.

Mr. Knierim worked as an automotive mechanic from the beginning of the Knierims’ marriage until his retirement. In the early days of their marriage, Mr. Knierim worked at the J.C. Penney Auto Center at Lafayette Square Mall in Indianapolis. J. Knierim Trial Testimony. During this time, the Knierims lived in Danville, Indiana. Id. Mr. Knierim then began working at the Montgomery Ward Auto Center in Terre Haute. Id. In 1981, Mr. Knierim went into business for himself and opened his own alignment garage in Brazil. Id.

In 1975, the Knierims built a home in Brazil. Id. Most of the Knierims’ family and high school friends were still living in the Brazil area. Id. Throughout their time in the Brazil home, the Knierims did extensive remodeling, mostly on their own. Id. Mrs. Knierim continues to live in the Brazil home and does not believe that she will sell it, as she still feels Mr. Knierim’s presence there. Id.

In 1980, Mrs. Knierim started working at as a secretary at Clay Community Schools. Id. She eventually began working in educational media, and school officials encouraged her to go back to college and finish her degree. Id. In 1989, at the age of forty-one, Mrs. Knierim returned to Indiana State to earn an undergraduate degree in educational media. Id. She worked full-time and went to school part-time, except during the last year, when she quit working to focus on her student teaching. Id. Mr. Knierim was very supportive of her decision to return to school, volunteering to complete more housework to allow Mrs. Knierim to study. Id.

Following her graduation from Indiana State, Mrs.

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Bluebook (online)
802 F. Supp. 2d 965, 2011 U.S. Dist. LEXIS 79829, 2011 WL 2844846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knierim-v-united-states-government-department-of-the-navy-insd-2011.