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Tort/Negligence – FTCA – Wrongful Death – Gross Negligence – Legal U-Turn

Garcia v. United States (Lawyers Weekly No. 002-010-16, 13 pp.) (Louise Flanagan, J.) 4:14-cv-00088; E.D.N.C.

Holding: Even though a Marine’s U-turn attempt was legal, since (1) he had been warned that it was a dangerous maneuver, (2) conditions were dark and rainy, and (3) the tractor-trailer he was driving was darkly camouflaged, the plaintiff-estate may be able to prove that the Marine was grossly negligent in attempting the U-turn that led to the decedent’s death when the U-turn failed, the tractor-trailer blocked the highway, and the decedent’s car collided with the tractor-trailer.

The court denies defendant’s motion to dismiss the estate’s gross negligence claim. The court grants defendant’s motion to dismiss the individual plaintiffs’ claims. Plaintiffs’ prayer for prejudgment interest is denied. Their claim for attorney fees is denied in part.

The court stresses that the estate’s gross negligence claim rests not on the Marine’s failure to follow Marine Corps policy but on the Marine’s conscious disregard of relevant directives and information allegedly provided to him by the Marine Corps about the danger posed by U-turns.

The administrative claims of the plaintiff-parents relate only to the decedent’s death, rather than to injuries suffered by the parents individually; therefore, the court lacks subject matter jurisdiction over the parents’ individual negligence claims.

The Federal Tort Claims Act provides that the United States “shall not be liable for interest prior to judgment.” 28 U.S.C. § 2674. Thus, the court is without jurisdiction to grant plaintiffs’ prayer for prejudgment interest.

The FTCA caps attorney’s fees at a percentage of the total value of the judgment. 28 U.S.C. § 2678. Accordingly, insofar as plaintiffs pray for “reasonable” attorney fees in excess of the amount allowed in relation to the judgment, such fees are unavailable.

Motion granted in part and denied in part.

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