Lawhon v. United States

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

          N. Reid Neureiter Magistrate Judge

         This case is before the Court for all purposes pursuant to 28 U.S.C. § 636(c), upon the consent of the parties (Dkt. #14) and the Order of Reference entered by Chief Judge Marcia S. Krieger on June 12, 2018 (Dkt. #15). This is a negligence case, brought against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671, and 2680 (FTCA), by Jeremy Lawhon. Mr. Lawhon claims that the driver of a Bureau of Prisons passenger van acted negligently in making a U-turn in front of Lawhon, without seeing him, causing him to crash into the side of the van on his motorcycle.

         The Court held a three-day bench trial on August 7-9, 2019. At trial, the parties presented argument and evidence, including the testimony of the Plaintiff Lawhon, the investigating Aurora Police Officer, three medical providers, and Bureau of Prisons (BOP) employee Tracy Kohoano (the allegedly negligent driver), as well as exhibits in support of their positions. At the conclusion of the trial, this Court announced certain findings of fact, and took other issues of law and fact under advisement. The Court now enters its Findings of Fact, Conclusions of Law and Order.

         I. FINDINGS OF FACT

         1. This case arises out of a motorcycle accident that occurred on East 30^thStreet in Denver near Peoria Street on August 18, 2016.

         2. On that date, Mr. Lawhon was riding a 1998 Honda CBR 600 motorcycle east on 30th Street towards Peoria Street.

         3. On May 11, 2016, Mr. Lawhon had entered into a written contract to buy the motorcycle from an acquaintance, Tyrra Bohannon. Pl's Exh 5. The written contract placed the value of the motorcycle at $1, 200, although it was not in a running condition and needed new tires at the time the contract was signed.

         4. Mr. Lawhon agreed to pay for the motorcycle by promising to do certain jobs and tasks for Mr. Bohannon. Mr. Bohannon transferred possession of the motorcycle to Mr. Lawhon.

         5. Mr. Lawhon had prior experience and training as a mechanic and was capable of doing the work to put the motorcycle in running condition.

         6. Mr. Lawhon had been riding motorcycles since he was young and previously had owned a number of motorcycles, including two Honda Goldwings and a Honda Interceptor. He also had years of experience riding dirt bikes.

         7. Mr. Lawhon did not have a valid motorcycle endorsement on his license and had never taken a motorcycle safety course.

         8. Just a few days before the accident, Mr. Lawhon had successfully gotten the CBR 600 motorcycle running and had also spent $250 on new tires. Mr. Lawhon did some, but not all, of the tasks he had promised to do for Mr. Bohannon in exchange for the motorcycle.

         9. At approximately 3:00 pm on August 18, 2016, Mr. Lawhon was riding the motorcycle home from a junkyard where he had gone to buy a part for a friend's car. Mr. Lawhon was traveling 25-30 mph east on East 30^th Street when he saw approximately 450 feet ahead of him several large white BOP passenger vans. One of the vans appeared to Mr. Lawhon to be parking or trying to park.

         10. As Mr. Lawhon approached the van from the rear, Mr. Lawhon tried to make eye contact with the driver of the van to ensure that she saw him. But she did not make eye contact and pulled out to do a U-turn across the east-bound lane of traffic and directly in front of Mr. Lawhon on the motorcycle. Mr. Lawhon applied the brakes hard and tried to avoid the collision but was unable to do so and crashed into the driver's side door of the B.O.P. van.

         11. I find that Mr. Lawhon acted reasonably and was not at fault in causing the accident. He testified credibly as to what he saw and observed prior to the crash as well as his failed effort to avoid the collision. Mr. Lawhon's testimony regarding the specifics of the crash is generally corroborated by the testimony of the investigating Aurora Police Officer who was qualified as an accident reconstruction expert. Mr. Lawhon's testimony is also corroborated by the photographs of the scene, and the damage to both the motorcycle and the B.O.P. van.

         12. The investigating Aurora Police Officer (trained in traffic accident reconstruction) estimated that the accident occurred at approximately 20 miles per hour. There is no evidence that Mr. Lawhon was speeding or riding recklessly.

         13. The driver's side of the BOP van was dented from the crash.

         14. The motorcycle was damaged and appeared to be leaking fluid.

         15. Mr. Lawhon's body was thrown against the side of the van by the crash.

         16. Mr. Lawhon, upset and shaken by the crash, jumped up and yelled at the driver of the van. He later sat down on the side of the street to wait for the emergency medical technicians who would transport him to University of Colorado Hospital on Colfax Avenue.

         17. The van driver, Ms. Kohoano, testified that she checked her mirrors-rear and side-and tried to see if there was any traffic behind her before executing her U-turn. One of her passengers yelled out “Tracey” just before the impact. Ms. Kohoano may have looked, but she did not look carefully enough, and, as she admits, did not see Mr. ...