UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CIV-61241-RAR

APRIL HICKS,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.

___________________________________/

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE comes before the Court upon Defendant’s Motion for Summary Judgment 

[ECF No. 34] (“Motion”), filed on August 24, 2021. Defendant United States of America asserts

it is entitled to summary judgment on Plaintiff April Hicks’s claims under the Federal Tort Claims 

Act (“FTCA”) arising from an automobile accident between Plaintiff and a United States Postal 

Service (“USPS”) delivery vehicle. Having considered the Motion, Plaintiff’s Response [ECF No. 

41], Defendant’s Reply [ECF No. 43], the parties’ Statements of Material Facts [ECF Nos. 35, 40, 

44], the record, and applicable case law, it is hereby 

ORDERED AND ADJUDGED that Defendant’s Motion [ECF No. 34] is DENIED as 

set forth herein. 

BACKGROUND 

This case arises from an automobile accident between Plaintiff and a USPS mail delivery 

vehicle that occurred on June 24, 2018, on 31st Avenue in Lauderhill, Florida. Mot. at 1. Plaintiff 

alleges that Defendant’s vehicle pulled into a U-turn directly in front of her vehicle from its 

position alongside the road, causing Plaintiff to collide into the rear corner of the vehicle. Id. 

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Defendant maintains that Plaintiff collided with a stationary USPS vehicle parked alongside the 

road. Id. Defendant has filed a counterclaim against Plaintiff to recover in negligence for the 

damage to Defendant’s vehicle and has moved for summary judgment in its favor. Id. Plaintiff 

relies mainly on her own testimony and that of the USPS driver, and Defendant proffers testimony 

from an accident reconstruction expert. See generally Mot.; Response. The record also includes 

photographs from the scene of the accident. See Mot. at 5. Because the parties’ competing 

evidence raises genuine issues of material fact, the Court must deny Defendant’s Motion for 

Summary Judgment.

LEGAL STANDARD 

Summary judgment is rendered if the pleadings, the discovery and disclosure materials on 

file, and any affidavits show there is no genuine issue as to any material fact and the movant is 

entitled to judgment as a matter of law. See FED.R.CIV. P. 56(a), (c). An issue of fact is “material” 

if it might affect the outcome of the case under governing law. See Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the evidence could lead a reasonable factfinder

to find for the non-moving party. See id.; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986). At summary judgment, the moving party bears the burden of proving the 

absence of a genuine issue of material fact, and all factual inferences are drawn in favor of the 

non-moving party. See Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997). 

If there are any factual issues, summary judgment must be denied, and the case proceeds 

to trial. See Whelan v. Royal Caribbean Cruises Ltd., No. 12-22481, 2013 WL 5583970, at *2 

(S.D. Fla. Aug. 14, 2013). Furthermore, when the parties “agree on the basic facts, but disagree 

about the inferences that should be drawn from these facts[,]” summary judgment “may be 

inappropriate.” Id. (citation omitted).

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ANALYSIS 

Factual disputes abound in traffic accidents. Two drivers involved in an accident seldom 

recount identical versions of what happened. Consequently, cases arising from motor vehicle 

accidents are rarely ripe for summary judgment. In this case, Plaintiff offers sufficient evidence 

for a reasonable factfinder to conclude that her version prevails, so summary judgment must be 

denied.

Defendant advances several arguments in an effort to establish the absence of a disputed 

issue of material fact, all of which are unavailing. First, Defendant accurately “anticipates that 

Plaintiff will argue . . . that her own testimony . . . creates an issue of fact” and correctly notes that 

a court “normally . . . should not take the credibility of witnesses into consideration at the summary 

judgment stage.” Mot. at 5. But Defendant then jumps to the conclusion that summary judgment 

is appropriate here because Plaintiff’s testimony has been “utterly discredited by unrebutted record 

evidence.” Id. Defendant bases this conclusion on Scott v. Harris, 550 U.S. 372 (2007), a Supreme 

Court case that stands on facts strikingly divergent from those found here. The “unrebutted record 

evidence” in Scott was raw dashboard footage of the accident in question. Scott, 550 U.S. at 378. 

There is no such evidence here. Instead, what Defendant calls “unrebutted record evidence” is a 

photograph of the scene after the accident—which, as Plaintiff notes, is inconclusive, Response at 

6—and the expert testimony of Defendant’s accident reconstruction expert. Mot. at 7. This 

evidence is not analogous to raw footage taken in real time. Plaintiff’s testimony, therefore, is 

sufficient to create an issue of fact, and the Court will not consider its credibility at this stage of 

the proceedings.

Second, as suggested above, Defendant makes too much of the fact that its expert testimony 

is unrebutted. Mot. at 7–8. Defendant cites Hawthorne v. United States, No. 18-80508, 2019 WL 

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1466741 (S.D. Fla. Feb. 21, 2019), for the proposition that “Plaintiff has failed to overcome 

Defendant’s showing, and judgment must be entered in favor of Defendant.” Mot. at 8. But unlike 

this case, Hawthorne required expert testimony on both sides to establish a record as to the standard 

of care in medical malpractice cases. Hawthorne, 2019 WL 1466741 at *4–5. However helpful 

an expert may be to Plaintiff’s case, accident reconstruction is not an area requiring expert 

testimony on a professional standard of care or any other matter. Plaintiff’s lack of expert 

testimony, therefore, is not fatal to her case at summary judgment.

Defendant’s final argument is self-defeating. Defendant cites Furry v. United States, 712 

F.3d 988 (7th Cir. 2013) to support its contention that “Plaintiff is unable to establish a breach of 

duty and therefore, judgment must be entered in favor of Defendant.” Mot. at 8. The Court 

acknowledges certain similarities between this case and Furry, which likewise featured an accident 

involving a USPS vehicle. See generally Furry, 712 F.3d 988. The Furry Court found that the 

plaintiffs, who failed to employ an accident reconstruction expert, did not establish a breach of 

duty and thus ruled in favor of the government. Furry, 712 F.3d at 991–92. But these findings 

were made by the factfinder at trial. See id. The Court cannot consider the relative merits or 

credibility of the parties’ testimony or witnesses at the summary judgment phase.1

 

Plaintiff provides ample testimony to show genuine issues of material fact in this case. For 

example, Plaintiff alleges that the USPS truck, upon impact, was at a slight angle relative to the 

alignment of the road, noting that Defendant’s expert considered only 0- and 90-degree scenarios 

in his simulation. Response at 6. Plaintiff also points to inconsistencies in the testimony of the 

1 The Court also notes that in Furry, neither plaintiff witnessed the collision, so they could provide no 

firsthand testimony. Furry, 712 F.3d at 989–90. Here, of course, Plaintiff saw the collision from a very 

close distance.

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USPS driver (i.e., the reaction of the driver’s head to the force of the impact) that a reasonable 

factfinder could find to favor Plaintiff. Id. at 7. Therefore, summary judgment is inappropriate.

CONCLUSION 

For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendant’s Motion 

[ECF No. 34] is DENIED. 

DONE AND ORDERED in Fort Lauderdale, Florida, this 16th day of November, 2021. 

_________________________________

RODOLFO A. RUIZ II

UNITED STATES DISTRICT JUDGE

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