David Furry v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1888

D AVID F URRY and D IANE N YE,

Plaintiffs-Appellants,

v.

U NITED S TATES OF A MERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:08-cv-6138—Blanche M. Manning, Judge.

A RGUED S EPTEMBER 26, 2012—D ECIDED M ARCH 13, 2013

Before E ASTERBROOK, Chief Judge, and W OOD and

W ILLIAMS, Circuit Judges.

W ILLIAMS, Circuit Judge. In this Federal Tort Claims

Act case, David Furry and Diane Nye allege that

Ronald Williams, a substitute letter carrier for the

United States Postal Service, negligently caused a vehicle

collision that resulted in substantial injuries. Furry and

Nye, who were in the station wagon that made con-

tact with Williams’s postal truck, did not see Williams’s

2 No. 12-1888

vehicle before the accident or observe the collision. At

the bench trial, they argued that the vehicle damage,

Williams’s lack of credibility, and his flight from

the scene of the accident all proved that Williams

acted negligently. The district court declined to find

that Williams breached his duty of ordinary care, and

we conclude that the court’s factual finding on this

issue was not clearly erroneous. To prevail, Furry and

Nye needed to show by a preponderance of the evi-

dence that Williams initiated the contact between the

vehicles. And because they relied on speculation

rather than evidence, they failed to meet their burden.

We affirm.

I. BACKGROUND

On the afternoon of May 15, 2007, David Furry,

Diane Nye, and their daughter were traveling south-

bound on Grove Avenue, a one-way street in Berwyn,

Illinois. Furry was driving the family’s 1978 Ford

LTD Country Squire station wagon. It was raining

heavily that afternoon and visibility was limited. At the

same time, Ronald Williams, a recently hired substitute

letter carrier for the United States Postal Service (“USPS”),

was sitting in a postal truck that was parallel parked on

the right side of Grove Avenue at a slight angle with

the front of the truck sticking out. Williams had just

visited the home of a friend and, in violation of USPS

rules, was away from his designated route.

As Furry’s station wagon passed Williams’s postal

truck, the two vehicles collided. The quarter panel and

No. 12-1888 3

bumper on the right rear of Furry’s car made contact

with the left front bumper of the postal truck. The impact

pushed Furry against the driver’s side window and

Nye forward against her seatbelt. Furry and Nye

did not see the postal truck before the impact, nor did

they see the collision.

After the accident, Furry and Nye examined the dam-

age to their station wagon, which suffered minimal

damage to the right rear quarter panel and the right side

of the rear bumper, which came off its mount. Williams

pulled the postal truck away from the curb, drove several

car lengths away, parked, and exited the truck. Furry

asked Williams to call the police because Furry and Nye

did not have cell phones. Williams offered Furry five

hundred dollars to not report the accident and to give

Williams an opportunity to leave the scene. While

Furry searched for straps to lift the station wagon’s

bumper off the ground, Nye talked to Williams, who

said, “Oh, my God. Oh, my God. Oh, this is great.

I’m going to get fired. I have to get the rest of this mail

delivered. I’m sorry.” After Nye asked Williams for his

information and told him to call the police, Williams

then stated again that he was sorry and said, “Oh, my

God. Oh, my God. I am going to get fired. I have to get

this mail delivered or I’ll be fired.” Nye again told him

to call the police, but Williams walked back to the postal

truck, drove away from the scene, and returned to

his postal route. Nye wrote down the number of

Williams’s vehicle.

After searching for Williams for fifteen to twenty min-

utes, Furry and Nye returned to their home. Ninety

4 No. 12-1888

minutes after the collision, Furry called the Berwyn

Police Department to report the accident. Officer James

Tadrowski met Furry and Nye at their residence. They

told the police officer their version of events—that Wil-

liams hit their vehicle when he pulled out of his parking

space, that they talked to Williams and asked for his

information, and that he would not give it to them

because he was afraid he would lose his job if the

crash were reported. Officer Tadrowski returned to the

scene of the collision but did not see any evidence of

a crash. He did not take any paint scrapings, photo-

graphs, or measurements of the vehicles. Later that

day, he located Williams and questioned him at the

Furry/Nye residence with Lee Junious, a USPS customer

service supervisor. Williams denied any involvement in

the collision and claimed that he had never seen Furry

or Nye before. Williams resigned from USPS the

following day.

After exhausting their administrative remedies, Furry

and Nye sued the United States under the Federal Tort

Claims Act (“FTCA”), alleging that Williams’s negligence

caused them $45 million in damages. The court held a

bench trial in July and August 2011. The plaintiffs

testified that they believed that Williams caused the

accident by driving the postal truck out of its parking

space into their station wagon. Officer Tadrowski also

testified about the damage to the vehicles and his inter-

actions with the plaintiffs and Williams, but the

district court did not find him “qualified to opine as to

which vehicle struck the other.” The plaintiffs did not

offer any expert testimony on the cause of the collision.

No. 12-1888 5

Even though both parties subpoenaed Williams, he

did not appear at the bench trial. After the plaintiffs

declined to compel Williams’s attendance, the parties

agreed that he would testify by deposition. In his dep-

osition testimony, Williams’s account of the incident

differed from Furry’s and Nye’s in several ways.

Most importantly, he claimed that the postal truck

was stationary at the time of the collision and that he

had not yet begun to exit the parking space when the

station wagon clipped his vehicle. When the plaintiffs’

counsel asked Williams to reconcile his assertion that

the postal truck was not moving with the fact that

the back end of Furry’s car came into contact with

the postal truck, Williams responded that he had no ex-

planation and that it was “mystical.” In addition, Williams

testified that Furry accepted the offer of five hundred

dollars, while the plaintiffs do not mention any accep-

tance. Finally, Williams asserted that he did not speak

with Nye at the scene.

At the conclusion of the bench trial, the court took

the matter under advisement. The parties subsequently

filed proposed findings of fact and memoranda of law.

In its findings of fact, the court credited the plaintiffs’

testimony that “the station wagon impacted the postal

vehicle,” but it noted that because they did not see the

postal truck or the collision, “their belief [that Williams

initiated the collision] is not based on any first-hand

observation of movement by the postal vehicle, but rather

is based on the fact that they felt an impact.”

The court stated that it “had no opportunity to gauge

Williams’ credibility for itself because the plaintiffs

6 No. 12-1888

chose not to ask the court to compel his attendance at

trial and decided, instead, to rely on his deposition testi-

mony.” The court then explained that even if it were

to assume that Williams lacked credibility and to

consider the plaintiffs’ testimony not rebutted, their

“testimony establishe[d] only that their station wagon

and the postal vehicle collided, not which vehicle was

responsible for the collision.” The court found that

there were other possible causes of the accident, in-

cluding Furry’s vehicle sideswiping the postal truck

or hydroplaning (recall that there was heavy rain at the

time) into the postal truck unbeknownst to the plain-

tiffs. And because, according to the parties, USPS could

have fired Williams for either being involved in

any accident, regardless of fault, or being away from

his designated route, the court would not infer that

negligence was the only possible reason Williams left

the scene.

The district court entered judgment in favor of

the United States, finding that the plaintiffs failed to

meet their burden of proof on breach of duty by a pre-

ponderance of the evidence because they offered only

“sheer speculation”—not evidence or expert opinion—to

support their position that the damage to their vehicle

and the postal truck conclusively proved that Williams

initiated the contact. Furry and Nye appeal.

II. ANALYSIS

In the FTCA, 28 U.S.C. §§ 1346(b)(1) & 2671-80, Congress

waived the United States’s sovereign immunity for

No. 12-1888 7

suits brought by persons injured by the negligence of

federal employees acting within the scope of their em-

ployment. Emp’rs Ins. of Wausau v. United States, 27

F.3d 245, 247 (7th Cir. 1994). The “law of the place where

the act or omission occurred” governs FTCA claims,

28 U.S.C. § 1346(b)(1), so we rely on Illinois law here.

To succeed on a negligence claim in Illinois, a plaintiff

“must allege and prove that the defendant owed a duty

to the plaintiff, that defendant breached that duty, and

that the breach was the proximate cause of the

plaintiff’s injuries.” First Springfield Bank & Trust v.

Galman, 720 N.E.2d 1068, 1071 (Ill. 1999). The parties

agree that Williams had “a duty to exercise reasonable

care in the operation of his vehicle and to have his

vehicle under such control as [would] enable him to

avoid collision with other vehicles or pedestrians.” Moran

v. Gatz, 62 N.E.2d 443, 444 (Ill. 1945). So the issues pre-

sented for resolution at the bench trial were breach,

proximate cause, and damages.

A. Clear Error Standard of Review

In an appeal from a bench trial, we review the district

court’s findings of fact and applications of law to those

findings for clear error. Trs. of Chi. Painters & Decorators

Fund v. Royal Int’l Drywall & Decorating, Inc., 493 F.3d 782,

785 (7th Cir. 2007). We will find clear error when we

are “left with the definite and firm conviction that a

mistake has been committed.” Anderson v. City of

Bessemer City, 470 U.S. 564, 573 (1985). And “[w]e may

have such a conviction if ‘the trial judge’s interpretation

8 No. 12-1888

of the facts is implausible, illogical, internally incon-

sistent or contradicted by documentary or other extrinsic

evidence.’ ” EEOC v. Sears Roebuck & Co., 839 F.2d 302,

309 (7th Cir. 1988) (quoting Ratliff v. City of Milwaukee,

795 F.3d 612, 617 (7th Cir. 1986)).

Ordinarily, breach and proximate cause are questions

of fact reviewed for clear error. Swearingen v. Momentive

Specialty Chems., Inc., 662 F.3d 969, 972 (7th Cir. 2011)

(applying Illinois law). But when “there is no material

issue regarding the matter or only one conclusion is

clearly evident,” breach and proximate cause become

questions of law reviewed de novo. Williams v. Univ. of

Chi. Hosps., 688 N.E.2d 130, 134 (1997); accord Adams v.

N. Ill. Gas Co., 809 N.E.2d 1248, 1257 (Ill. 2004) (“the

issues of breach and proximate cause are factual matters

for a jury to decide, provided there is a genuine issue

of material fact regarding those issues”) (internal

citation omitted).

On appeal, Furry and Nye argue that this court

should treat proximate cause as a question of law

because there is only one possible cause of the car

accident—Williams driving the postal truck into their

station wagon. We assume that the appellants intended

to argue that we should treat breach of duty as a question

of law because the district court entered judgment

based on the plaintiffs’ failure to prove breach and stated

that it “need not address the issues of proximate cause

and damages.”

The appellants’ argument is unpersuasive. Because

they offered no eyewitness testimony regarding the

No. 12-1888 9

cause of the accident, “the facts of the collision[] had to

be inferred from the circumstances.” Miller v. Pillsbury

Co., 211 N.E.2d 733, 734 (Ill. 1965). And the circum-

stances here require some consideration of the context of

the crash, the condition of the vehicles, the angle and

degree of impact, the vehicle’s traveling speed, and the

effect of the weather. The appellants present what they

consider to be a “commonsense” analysis of the damage

to conclude that the only way the right rear quarter

panel and right rear bumper of their car and the left

front bumper of Williams’s truck would have suffered

the type of damage they did would have been if

Williams pulled out of his parking space and hit their

station wagon. But even if their analysis offers a

plausible explanation for the collision, it by no means

necessarily excludes all other possible causes, including

those suggested by the district court. And for this

reason, breach remains a question of fact reviewed for

clear error.

B. The District Court’s Breach Finding Was Not

Erroneous

Having determined that breach is a question of fact

here, we turn now to the appellants’ substantive argu-

ments. First is their argument that the damage could

only have resulted from Williams’s negligence, an argu-

ment we have already called into question. The appel-

lants offered no expert testimony on accident reconstruc-

tion to explain why their account was likely more ac-

curate than another scenario in which Williams did

10 No. 12-1888

not breach his duty of ordinary care. Mere speculation,

which is all they offer, is not sufficient to meet their

burden of proof.

The appellants next argue that Williams’s testimony

was so incredible that it proved their version of events.

This is also unpersuasive. The district court declined

to find that Williams lacked credibility because it did

not have an opportunity to observe his demeanor.

On appellate review, we defer to the district court’s

credibility determinations “for only the trial judge can

be aware of the variations in demeanor and tone of

voice that bear so heavily on the listener’s understanding

of and belief in what is said.” Anderson, 470 U.S. at

575. 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 incon-

sistent, can virtually never be clear error.” Id. at 575-76;

see also Mucha v. King, 792 F.2d 602, 605-06 (7th Cir.

1986) (“[T]he main reason for appellate deference to the

findings of fact made by the trial court is not the

appellate court’s lack of access to the materials for

decision but that its main responsibility is to maintain

the uniformity and coherence of the law . . . .”).

Although the district court declined to determine Wil-

liams’s credibility, the lack of a determination does not

matter here. The appellants want us to conclude that

Williams is not credible because he initially lied about

his involvement and fled the scene of the accident, but

No. 12-1888 11

that behavior does not necessitate a finding that every-

thing Williams says lacks credibility. Neither does his

inability to reconcile his account of the accident with

the vehicle damage, as the appellants argue. As we have

discussed, Furry and Nye’s version of events requires

accident reconstruction testimony; the district court

did not err by declining to hold Williams’s inability

to provide that testimony against him. But most impor-

tantly, as the district court noted, even if it excluded

Williams’s testimony as not credible, the appellants did

not satisfy their burden of proof by a preponderance of

the evidence. See NLRB v. Luois A. Weiss Mem’l Hosp.,

172 F.3d 432, 446 (7th Cir. 1999) (“An absence of

evidence does not cut in favor of the one who bears

the burden of proof on an issue.”). Furry and Nye

testified that they did not witness the collision or even

see the postal truck before the impact. And because

they offered no evidence to either support their specula-

tion or to discount other possible causes of the collision,

they failed to meet their burden of proof.

Finally, the appellants argue that the district court

could have inferred Williams’s negligence from the fact

that he fled the scene of the collision. See Peterson v.

Henning, 452 N.E.2d 135, 138 (Ill. App. Ct. 1983) (“A

defendant’s flight from the scene of the accident can be

interpreted as an admission of his negligence for if he

were ‘guilt free’ it is reasonable to assume he would stop

to ascertain the nature of the accident or the extent of

the victim’s injuries.”). But the appellants suggested

alternate reasons for the flight: Nye testified that

Williams stated several times that he needed to return

12 No. 12-1888

to his route or he would be fired. And Nye also told

Officer Tradowski that Williams did not want to

provide them with his information because he was

afraid that he would lose his job if the collision were

reported. Furthermore, Williams left the scene after

stopping and having the opportunity to observe that

no one was visibly injured and that there was only

minor damage to the station wagon. Leaving under

these circumstances does not necessarily signal culp-

ability, and given the other possible explanations for

Williams’s flight from the scene, the district court did

not clearly err by declining to consider it evidence of

negligence.1

1

We note that the appellants’ recitation of the facts in their

appellate brief suggests other potential evidence of negligence.

First is the statement that after the collision, “He [Williams]

said he was sorry for hitting them.” As we noted at oral argu-

ment, the district court did not address this potential admis-

sion by Williams.

In their post-trial supplemental statement of facts below,

Furry and Nye said that Williams said “he was sorry.” Both of

these statements appear to be based on Nye’s testimony.

She first testified that Williams said “I’m sorry.” But at a later

point in the trial, she later identified Williams as “the one

that came out and said: I’m sorry for hitting you.” Furry and

Nye did not argue that this latter statement is evidence of

Williams’s breach either at trial (and they did not include it

in their post-trial proposed findings of fact or argue it in their

memorandum of law) or in their appellate briefs.

(continued...)

No. 12-1888 13

Ultimately, the appellants’ arguments on breach rest

on sheer speculation. Faced with the lack of evidence

to either support the appellants’ beliefs or discount al-

ternate explanations not associated with Williams’s

breach of ordinary care, the district court did not err

by finding that the appellants failed to meet their

burden of proof.

1

(...continued)

It is possible that Nye inadvertently attached the “for hitting

you” explanation to Williams’s “I’m sorry.” Or it could be

that those were Williams’s exact words. But the appellants

never discussed the potential importance of the statement. So

despite the presence of what a factfinder could interpret as

an admission of breach of duty and the fact that the dis-

trict court did not make a factual finding about whether

Williams admitted culpability, we will not remand this case

on this issue because Furry and Nye never attempted to

advance this argument. See Economy Folding Box Corp. v. Anchor

Frozen Foods Corp., 515 F.3d 718, 720-21 (7th Cir. 2008) (“It is

not the court’s responsibility to research the law and construct

the parties’ arguments for them.”); Robyns v. Reliance Standard

Life Ins. Co., 130 F.3d 1231, 1238 (7th Cir. 1997) (“The well-

established rule in this Circuit is that a plaintiff waives the

right to argue an issue on appeal if she fails to raise the

issue before a lower court.”); Nemmers v. United States, 795

F.2d 628, 633 (7th Cir. 1986) (in a bench trial, Federal Rule of

Civil Procedure 52(a) “requires the court to make findings of

fact and conclusions of law on all material, disputed issues

(emphasis added)). Similarly, because Furry and Nye only

argued that Williams’s offer to pay Furry five hundred dollars

was evidence of Williams’s lack of credibility, we will not

remand due to lack of a factual finding about whether that

offer was evidence of an admission.

14 No. 12-1888

III. CONCLUSION

For the reasons above, we A FFIRM the judgment of the

district court.

3-13-13