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High v. United States

United States District Court, D. Maryland

February 8, 2018

RONALD HIGH, Plaintiff,


          Paula Xinis United States District Judge

         This case concerns a United States Postal Service truck crashing into Plaintiff Ronald High (“Mr. High”) while Mr. High was riding his bicycle. As a result, Mr. High sustained serious injury to his left shoulder. Mr. High filed suit against the United States for negligence pursuant to the Federal Tort Claims Act, 42 U.S.C. § 1346. In advance of trial, the parties stipulated to the Government's liability, as well as damages arising from Mr. High's lost wages, medical bills, and the value of his bicycle, which was destroyed in the crash. The total stipulated economic damages are $46, 740. ECF No. 31 ¶ 1-6.

         The sole remaining question at trial, therefore, concerned Mr. High's non-economic damages for pain and suffering, including his pre-impact fright, loss of use and enjoyment of his shoulder, and other emotional distress. Trial took place on January 30, 2018. At the conclusion of the presentation of evidence, the Government conceded that Mr. High was entitled to some compensation for his pain and suffering, and recommended that the Court award non-economic damages of $32, 260, for a total award of $77, 000. Based on the unrebutted evidence presented at trial, the Court finds that Mr. High is entitled to $154, 000 in non-economic damages, for a total award of $200, 740.

         I. Applicable Law

         The parties agree that in this suit, Maryland law allows recovery for pain and suffering, loss of enjoyment, and emotional distress. See McAlister v. Carl, 233 Md. 446, 452-55 (1964); Smith v. Borello, 370 Md. 227, 245-57 (2002). McAlister broadly addresses permissible compensation for losing “things which involve matters of common experience with which a jury may be expected to have some familiarity.” Id. A plaintiff may also recover for his emotional distress, such as “depression, anguish, and grief.” See Smith, 370 Md. at 247. Finally, a court may award damages for pre-impact fright or “fear and its physical manifestations” during a “reasonable window of anxiety.” Faya v. Almaraz, 329 Md. 435, 456 (1993). As with all claimed damages, the plaintiff bears the burden of demonstrating by a preponderance of the evidence not only the damage itself, but that the defendant's negligence proximately caused that damage.

         II. Findings of Fact

         A. The Crash - Pre Impact Fright

         At trial, Mr. High testified without challenge to the harrowing events leading up to the crash. Mr. High explained that before the crash, he was an avid cyclist, riding 40 to 60 miles three times a week. On August 24, 2013, Mr. High was cycling on Central Avenue. As Mr. High approached an intersection, he testified to seeing a postal truck. Mr. High knew that he had the right of way, so he proceeded to cross the intersection. As Mr. High was crossing, he heard the truck rev its engine and saw the truck approaching on his right side. He began to wave his hand and scream “bike, bike bike, ” in a futile attempt to capture the truck driver's attention and avoid the crash. At that moment, Mr. High was “totally terrified.” The truck then struck High on the right side with great enough force that it sheared his cycle in three places.

         (Image Omitted)

         On impact, Mr. High was catapulted three or four feet in the air. He recalls bouncing on the truck's hood, sliding across, and landing in the street head first. His left shoulder was “driven right into the road” on impact. Mr. High was paralyzed from the pain. “I just couldn't move. I couldn't help myself up. . . . I was just helpless” in the middle of a busy intersection. Mr. High did not lose consciousness, and so recalls police and first responders coming to his aid. He was transported by ambulance to Anne Arundel Medical Center where he was treated for a sizeable knot on his head, abrasions to his leg and hand, and injuries to his left shoulder.

         B. From Crash to Surgery

         As a direct result of the crash, Mr. High suffered a grade 2 separation of the acromioclavicular (“AC”) joint in his left shoulder. Initially, Mr. High was treated through pain medication and physical therapy. He attended twenty one physical therapy sessions over the course of fourteen months. However, it is undisputed that Mr. High continued to experience pain, limited range of motion, and other persistent symptoms such as a popping, grinding, and a clicking sensation in his shoulder.

         Although Mr. High eventually went back to work at his two jobs (as a water meter technician for Washington Suburban Sanitation Commission and as a custodian for Stephenson's Custodial), he suffered limitations at work. One time, Mr. High related that his shoulder “locked” in place and he could not lower his arm without excruciating pain. “Those kind of things continued to happen for a while, ” Mr. High noted during trial.

         In search of pain relief, Mr. High was twice treated with steroid injections. The shots had little effect. As a result, Mr. High also was limited in his physical activity at home. Before the crash, Mr. High did all of the heavy lifting in his household. His wife, Joanne High (“Mrs. High”), testified that Mr. High did the vacuuming, took care of the lawn, washed both cars, and lifted “heavy things such as plants or if I needed something moved around the house like an aerial [sic] rug.” After the crash and for a significant time, Mrs. High, who suffers from spinal stenosis, had to take over many of these responsibilities. Although Mr. High gradually regained strength and mobility, he could not do everything he once had done. Basic “motions continued to aggravate” his shoulder. “The things that I did on a daily basis, just part of living, just going home, reaching in the cabinet, ...

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