                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 14-2159
                       ___________________________

                                    Manny Lopez

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                             United States of America

                      lllllllllllllllllllll Defendant - Appellee

                                     Shea Pyron

                            lllllllllllllllllllll Defendant
                                    ____________

                   Appeal from United States District Court
                 for the Eastern District of Missouri - St. Louis
                                 ____________

                            Submitted: April 17, 2015
                              Filed: June 26, 2015
                                ____________

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
                         ____________

MURPHY, Circuit Judge.

     Manny Lopez brought this negligence claim under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 2671–2680, arising from a traffic accident between a vehicle
in which he was a passenger and a United States Postal Service tractor trailer driven
by Robert Cleveland. The only live witnesses at a trial to the district court1 were
Lopez and St. Louis police officer Janet McKern who had responded to the accident;
Cleveland had meanwhile died from unrelated causes. After trial the court rejected
the claim by Lopez that Cleveland's negligence caused the accident, and judgment
was entered for the United States. Lopez moved for a new trial, the motion was
denied, and he now appeals. We affirm.

                                          I.

       At approximately 9:45 PM on August 13, 2009 Lopez was traveling north on
Tucker Boulevard in St. Louis, Missouri in a Volkswagen Beetle driven by Shea
Pyron. The lane in which they were driving ended at the intersection of Tucker
Boulevard and Washington Avenue, and Pyron merged into the lane where
Cleveland's postal truck was traveling. The two vehicles collided just before the
traffic light.

       At that time Tucker Boulevard had four northbound lanes approaching the
intersection, and it was undergoing construction immediately north of Washington.
The leftmost lane was for left turns onto Washington, the next lane continued straight
across Washington, but the lane to its right (the "run out lane") ended at the
intersection because of the construction. At the far right was a right turn only lane.
The run out lane south of Washington was marked with diagonal paint stripes
indicating where it was closed to traffic, and barriers blocked that lane north of the
intersection.




      1
         The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.

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       At trial Lopez testified that he and Pyron had been driving north on Tucker on
their way to a restaurant; he was giving directions because she had not been there
before. Pyron testified in her deposition that she had not often driven on Tucker and
that she had been talking with Lopez as they approached the intersection. She
claimed that she had merged safely from the run out lane into the through lane about
a block prior to the intersection, and Lopez testified that Pyron had changed lanes
even earlier. At the scene of the accident, Cleveland told Officer McKern that Pyron
had been driving in the run out lane as she approached the intersection and had
"jumped" into the through lane just before the light.

       The parties agree that the postal tractor trailer hit the rear of Pyron's car at the
intersection just after she stopped for a red light. Cleveland told Officer McKern at
the scene that he had been unable to stop to avoid a collision because Pyron had
suddenly merged into the through lane right in front of him. Pyron admitted in her
testimony that she had not looked in her rearview mirror before applying her brakes.

       The collision pushed Pyron's car a short distance into the intersection, but its
air bags did not deploy, and she pulled over to the right after the collision and later
drove her car home. Photographs taken at the scene show only minor damage to her
car. Officer McKern testified that based on her investigation she believed Cleveland's
account of the collision and that in her experience similar accidents occurred
frequently at the intersection of Tucker and Washington. Her written accident report
was also admitted into evidence.

                                          II.

       At the close of trial Lopez argued that under Missouri law there is a
presumption of negligence on the part of the driver of a vehicle colliding into the rear
of another and that no evidence had been presented to rebut this presumption. The
district court rejected the argument, finding that Lopez was not credible, that Pyron's

                                            -3-
own testimony showed she was at fault, and that Officer McKern was believable.
Although Lopez had claimed that Pyron's vehicle was "destroyed" by the collision,
photographs from the scene showed that her car had sustained only minor cosmetic
damage. The court found that Lopez had testified inaccurately about the time of the
accident and provided inconsistent statements about his claimed injuries. His
testimony that Pyron had merged to avoid the run out lane several blocks before it
even became visible was found not credible. The court also did not believe Pyron's
testimony that she had left enough space for the postal tractor trailer to stop after she
merged. It took note of her admissions that she had been driving in an unfamiliar
area, had failed to check her rearview mirror before changing lanes, and had been
talking to Lopez as she approached the intersection. Pyron testified that she merged
when she saw that her lane was ending, and the district court found that that would
not have been visible until shortly before the intersection and concluded that Pyron
had suddenly merged in front of Cleveland.

       The district court relied on Officer McKern's testimony and her written
accident report, both of which indicated that Pyron was at fault and stated that drivers
regularly find themselves short of time in the run out lane at that intersection and then
swerve suddenly back into the through lane. Lopez's objection that McKern was not
qualified as an accident reconstructionist was overruled because it was untimely and
because such a simple accident did not require the special skills of a reconstructionist.
Concluding that Lopez had failed to establish any negligence by Cleveland, the court
entered judgment for the United States. Subsequently it denied a motion by Lopez
for a new trial, and he now appeals.

                                          III.

       We review a district court's denial of a motion for new trial after a court trial
for an abuse of discretion. Chapa v. United States, 497 F.3d 883, 887 (8th Cir. 2007).
An "abuse of discretion will only be found if the district court's judgment was based

                                          -4-
on clearly erroneous factual findings or erroneous legal conclusions." Id. Applying
"this standard, we will overturn a factual finding only if it is not supported by
substantial evidence in the record, if it is based on an erroneous view of the law, or
if we are left with the definite and firm conviction that an error was made."
Richardson v. Sugg, 448 F.3d 1046, 1052 (8th Cir. 2006). A "factual finding
supported by substantial evidence, as well as a district court's choice between two
permissible views of the evidence, are not clearly erroneous." Id. A "district court's
ruling as to the credibility of competing witnesses can virtually never be clear error."
Culpepper v. Vilsack, 664 F.3d 252, 257 (8th Cir. 2011).

       The Federal Tort Claims Act "waives federal sovereign immunity and grants
federal district courts jurisdiction over a certain category of claims against the United
States." Eubank v. Kansas City Power & Light Co., 626 F.3d 424, 427 (8th Cir.
2010). The Postal Reorganization Act provides that "the FTCA shall apply to tort
claims arising out of activities of the Postal Service." Dolan v. U.S. Postal Serv., 546
U.S. 481, 484 (2006) (quoting 39 U.S.C. § 409). The United States can be held liable
under the FTCA "to the extent that a private person, under like circumstances, would
be liable to the plaintiff under the substantive law of the state where the alleged
wrongful conduct took place," in this case Missouri. Green Acres Enterprises, Inc.
v. United States, 418 F.3d 852, 856 (8th Cir. 2005).

       To prove a claim of negligence under Missouri law, "a plaintiff must establish
that the defendant had a duty to protect the plaintiff from injury, the defendant failed
to perform that duty, and the defendant's failure proximately caused injury to the
plaintiff." Lesch v. United States, 612 F.3d 975, 981 (8th Cir. 2010) (citing Lopez
v. Three Rivers Elec. Co-op., 26 S.W.3d 151, 155 (Mo. 2000) (en banc)). Missouri
law provides that a "driver has a duty to operate his vehicle at a safe rate of speed
under the conditions, keep a careful lookout, yield the right of way, remain on the
proper side of the road, not make turns unless making sure they are safe, and take
evasive action when possible to avoid a collision." Id. (collecting Missouri statutes).


                                          -5-
       Lopez argues that Missouri's "rear end collision doctrine" establishes a
presumption of negligence on the part of the postal driver entitling him to relief
despite the court's having not believed his own testimony. See Clark v. Belfonte
Distrib., Inc., 163 S.W.3d 581, 583 (Mo. Ct. App. 2005). The Missouri rear end
collision doctrine states that "if one has his vehicle in a portion of the highway where
he should have it in view of his course, and another traveling behind him in the same
direction overtakes him and permits his vehicle to run into the rear of the one ahead,"
then "proof of the collision . . . makes out a prima facie case of specific negligence
against the driver operating the overtaking vehicle." Id. The rear end collision
doctrine does not win the day for Lopez, however, for the presumption "created in
favor of the plaintiff does not automatically entitle [him] to prevail as a matter of
law." Id. at 584. The "doctrine is not applicable when a vehicle has turned in front
of an oncoming vehicle so as to pose an immediate hazard." Kaufmann by Kaufmann
v. Nagle, 807 S.W.2d 91, 94 (Mo. 1991) (en banc). A defendant may avoid liability
by presenting "evidence of defense or excuse." Clark, 163 S.W.3d at 584. The "time
and distance available to the overtaking driver are necessary factors in determining
whether the fact of collision gives rise to an inference of negligence." Kaufmann, 807
S.W.2d at 95.

      Here, the district court relied on several factual findings to conclude that Pyron
had abruptly merged into the through lane and then stopped in front of the postal
vehicle, depriving Cleveland of the "time and distance" he required to stop safely.
Kaufmann, 807 S.W.2d at 95. Based on Pyron's testimony, the trial court found that
she had changed lanes at the time she saw the run out lane was ending—a fact which
would only become apparent to a driver shortly before the intersection. Furthermore,
Pyron had admitted that she had been driving in an unfamiliar area, talking to Lopez
as she approached the intersection, and failed to check her rearview mirror before
changing lanes.

       These findings are "substantial evidence in the record" supporting the district
court's conclusion that Pyron had abruptly merged and then stopped in front of the

                                          -6-
postal vehicle because she was distracted. See Richardson, 448 F.3d at 1052. The
court did not clearly err in finding that Pyron denied Cleveland the "time and
distance" that he required to avoid the collision, and thus Lopez cannot rely on the
rear end collision doctrine to prove that Cleveland breached his duty under Missouri
law. See Kaufmann, 807 S.W.2d at 95. Furthermore, the district court appropriately
found that Lopez's account of the accident and Pyron's statement that she had merged
safely both lacked credibility, and a "district court's ruling as to the credibility of
competing witnesses can virtually never be clear error." See Culpepper, 664 F.3d at
257. Since Lopez failed to establish negligence on the part of Cleveland, we
conclude that the district court did not abuse its discretion in denying his motion for
a new trial. See Chapa, 497 F.3d at 887.2

      Lopez also argues that the district court abused its discretion by allowing
Officer McKern to offer her opinion on which party caused the accident and erred by
admitting her statement that accidents caused by vehicles merging suddenly from the
run out lane into the through lane were common at the intersection of Tucker and
Washington. We "review the district court's admission of expert testimony for an
abuse of discretion." Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176,
1182 (8th Cir. 1997).

       Even assuming Officer McKern's testimony and written accident report had
been inadmissable, judges in a trial to the court "routinely hear inadmissible evidence
that they are presumed to ignore when making decisions." Greater Kansas City
Laborers Pension Fund v. Superior Gen. Contractors, Inc., 104 F.3d 1050, 1057 (8th
Cir. 1997) (quoting Harris v. Rivera, 454 U.S. 339, 346 (1981)). In trials to the court
"the admission of incompetent or irrelevant evidence is not a ground for reversal


      2
       Lopez also argues without authority that since the district court granted
summary judgment to Pyron on his negligence claim against her, the court is bound
by some "law of the case" on the issue of negligence here, but that argument is
waived. See United States v. Kalb, 750 F.3d 1001, 1005 (8th Cir. 2014).

                                         -7-
when there is sufficient competent evidence to support the judgment and it does not
appear that the court was induced by . . . that evidence to make essential findings that
it otherwise would not have made." Id. (citation omitted). Here, Pyron's testimony,
coupled with an assessment of her credibility, provided substantial evidence
supporting the district court's finding that she had abruptly merged and stopped in
front of the postal vehicle without giving Cleveland the "time and distance" to avoid
a collision. See Kaufmann, 807 S.W.2d at 95. We conclude that "there is sufficient
competent evidence to support the judgment" independent of Officer McKern's
testimony. See Greater Kansas City Laborers Pension Fund, 104 F.3d at 1057.

       Based on the trial record and the district court's findings and conclusions, we
affirm the judgment.
                       ______________________________




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