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The Estate of Barry Isom v. United States

United States District Court, D. Nevada

December 31, 2017

THE ESTATE OF BARRY ISOM, by and through its Executrix, Mary Love-Isom; Jaime Isom Newberry and Kimberly Isom Grindstaff, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendants.

          ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER COURT TRIAL

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This case involves an automobile accident that caused the death of the Plaintiff, Barry Isom (“Isom”). The decedent's family seeks damages for negligence and wrongful death. The Court held a bench trial in this case from September 11, 2017 to September 22, 2017. The Court rules in favor of the Plaintiffs based on the following findings of fact and conclusions of law.

         II. BACKGROUND

         The parties agree that on April 9, 2012, Vanessa Van Zerr (“Van Zerr”), an employee of the United States Geological Survey (“USGS”) at the time, was driving a 2011 silver Chevrolet Tahoe (“Tahoe”) northbound on U.S. 93 to track desert tortoises in the Coyote Springs area. Isom was riding his 2002 Harley Davidson motorcycle northbound on U.S. 93 at the same time. Isom's motorcycle collided with the Tahoe on U.S. 93 after Van Zerr attempted to make a left turn across the southbound lane of U.S. 93. Isom struck the right rear of the Tahoe and was ejected from his motorcycle. Isom subsequently died from his injuries.

         The parties disagree as to whether Van Zerr was negligent, whether Isom was contributorily negligent, whether Isom was conscious after impact for any amount of time, and the appropriate amount of damages.

         III. JURISDICTION AND VENUE

         This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 for claims arising under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Venue is proper because the underlying actions and corresponding damages occurred within Clark County, Nevada.

         IV. FINDINGS OF FACT

         Federal Rule of Civil Procedure 52(a)(1) requires the Court to “find the facts specially and state its conclusions of law separately.” Fed.R.Civ.P. 52(a)(1). The court must state findings sufficient to indicate the factual basis for its ultimate conclusion. Kelley v. Everglades Drainage District, 319 U.S. 415, 422 (1943). The findings must be “explicit enough to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground on which the trial court reached its decision.” United States v. Alpine Land & Reservoir Co., 697 F.2d 851, 856 (9th Cir.), cert. denied, 464 U.S. 863 (1983) (citations omitted). Accordingly, following the bench trial and having reviewed all of the evidence and observed all of the witnesses, the Court makes the following findings of fact in this case.

1. On April 9, 2012, Vanessa Van Zerr (“Van Zerr”), an employee of the United States Geological Survey (“USGS”) at the time, was driving a 2011 silver Chevrolet Tahoe (“Tahoe”), USGS vehicle, northbound on U.S. 93 to track desert tortoises in the Coyote Springs area.
2. Irini (Renee) Lamkin (“Lamkin”), USGS intern at the time, was sitting in the front passenger seat of the Tahoe. Nelson Lau (“Lau”), USGS intern at the time, was sitting in the right rear passenger seat of the Tahoe.
3. Isom was riding his 2002 Harley Davidson motorcycle northbound on U.S. 93 at the same time. He was riding in the northbound land far behind the Tahoe.
4. As Van Zerr approached the dirt access road to the field site, she pulled off to the right on the shoulder to allow traffic immediately behind her to pass. The area where she pulled over was not a designated area for highway traffic to pull over ...

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