Truck Company To Pay Injured Girl; Attorneys Brought Negligent Entrustment Claim


By Stephanie S. Maniscalco

Type of Case: Automobile/Tractor Trailer Accident

Date of Settlement: July 2002

Case Name: Brown v. Yellow Freight Systems, Inc.

Court: Barton County Circuit Court

Plaintiffs' Attorneys: Ed Hershewe, Alison Hershewe and Michelle Boehm O'Neal, The Hershewe

Law Firm, Joplin

A trucking company has agreed to pay a Barton County girl who suffered severe brain damage when a tractor-trailer truck hit her family's van.

Because of mechanical problems, the girl's father was driving with his four-way flashers on at 30 mph on the highway when the truck rear-ended the van at 60 mph. The family's lawyers brought a negligent entrustment claim against the trucking company based on the driver's work history, driving record and medical records.

The trucking company admitted liability for its driver's negligence two weeks before trial but denied it had entrusted the truck to an incompetent driver.

"Our theory was that it did fall below the standard of care of a trucking company to entrust a double tractor-trailer unit to this man with the evidence of his past accidents, medical conditions and work suspensions," said Joplin attorney Edward J. Hershewe.

"We asked company officials in depositions if, given the driver's history, would he have been hired for a driving job on the day of the wreck," Hershewe said. "If it would have been negligent to hire him on that day, it was negligent to let him drive on that day."

The trucking company argued that the driver was medically qualified to drive the truck under Department of Transportation guidelines and that his record did not show habitual recklessness. The company also claimed a collective bargaining agreement prevented it from firing the driver.

Attorneys for Yellow Freight were not available for comment.

Negligent Entrustment

Hershewe said he did not find other cases where a negligent entrustment claim was used in the context of a truck accident.

He said the driver's medical history alone would not have supported the claim because the defendant would have argued that the truck driver did not keep them up-to-date on all of his health problems. And he said the company's own medical examinations were quick and not very detailed.

According to Hershewe, discovery on the negligent entrustment claim turned up evidence of the driver's past accidents and speeding tickets as well as warnings and suspensions from the defendant. He sought punitive damages on the entrustment claim.

"A couple of weeks before trial they admitted liability on the negligence claim in the hopes we would not be able to get into all of that," said Hershewe. "There was a question in the defense lawyers' minds that if they admitted negligence, we couldn't go into the issues of negligent entrustment."

But he said the court ruled that the plaintiffs could proceed.

The case settled prior to closing arguments after eight days of trial.

Driver Fatigue

The Brown family was traveling south on Highway 71 in Barton County on Dec. 8, 1996. Abigale Brown was a back seat passenger, and her father was driving with her mother as a front seat passenger. They were only going 30 mph because of problems with the van.

Larry Frakes, an employee of Yellow Freight for 28 years, was travelling the same direction and hit the van at 60 mph. Art Brown suffered minor injuries, and Pamela Brown suffered closed head injuries but fully recovered. Frakes was not injured.

Abigale, 16, suffered a severe closed head injury with 12 separate brain contusions resulting in motor and cognitive defects. She is able to talk and feed herself but has intellectual and short-term memory impairments and is mostly confined to a wheelchair. She will require 24-hour care for life. Her doctors confirmed a normal life expectancy of 58.2 more years.

Hershewe, who handled the case with associate Michelle Boehm O'Neal, reached a settlement with Yellow Freight for Art and Pamela in October 2000. He claimed Frakes had fallen asleep or was suffering from road mesmerization.

"He was not the best driver in the world — in fact the line operation manager said he couldn't name a worse driver," said Hershewe. He found Yellow Freight records that showed Frakes had had 10 to 12 "preventable" accidents, six in which the truck had overturned.

The records also showed that Frakes had 39 warnings from his employer for driving operation or log violations as well as 10 speeding tickets. Hershewe argued that Yellow Freight failed to review the records in compliance with federal safety regulations.

Frakes' medical history included obesity, a heart condition, complaints of fatigue and shortness of breath. He had a pacemaker and "blood pressure high enough to keep him from driving," said Hershewe.

Yellow Freight said the record did not show habitual recklessness and that Frakes was medically qualified as a truck driver under Department of Transportation guidelines.


Hershewe said focus groups helped him and O'Neal learn that potential jurors were uncomfortable that the Browns were driving a disabled van and that Abigale was not wearing her seatbelt.

"People had a big problem with that — we thought we might lose the whole panel when we brought that up in voir dire." He said preparation with the focus groups helped them deal with the issues up front.

But Hershewe said his trial team was surprised by Yellow Freight's argument that its union contract prevented the company from firing Frakes.

According to the company, under the collective bargaining agreement it could only consider driving records from the last nine months — and Frakes' record was relatively clean for that period.

"They put on all this evidence that getting rid of him would have shut down the trucking company — and that evidence came out of nowhere in the last weeks, we were not prepared for that," he said. "But we brought out at trial that the driver could have had a major accident with someone injured or killed once every nine months for the last 20 years and still been on the job at that rate.

"If they really wanted to fire him, they could have done it. They just would have had to go through the hearing stages.

"We also said he could have been put in another job and would have made a great dispatcher," said Hershewe.

Hershewe also had to deal with defense testimony from a couple traveling in the opposite direction at the time of the accident.

The couple testified for Yellow Freight that the truck clipped the side of the van rather than the rear because the van had veered out of its lane. Hershewe said a highway patrol officer testified that the witnesses probably saw the truck pushing the van into the lane.

Hershewe said this led to another strategic consideration — whether to hire an accident reconstructionist. They decided not to because that might have shifted some blame to Brown's parents.

"We had an experienced highway patrolman who spoke with authority and said it was a rear-end collision. He had taken the photos and done all of the work," he said. "Why would we want an accident reconstructionist when they could have determined the accident was preventable and the patrolman said it was a rear-end accident?"

The plaintiff's team did hire a safety consultant who concluded the truck driver should not have been on the road.

Hershewe added that although the case was sent back to Barton County from St. Louis under State ex rel. Linthicum v. Calvin, he was pleased with the forum.

"Lots of practitioners shy away from trying cases here, but the jurors are really very sophisticated — they knew about medical costs, pain and suffering and trucking companies and they learned about neuroscience and the standards and economics of the trucking industry," he said.

"Small-town jurors are uniquely qualified to hear a big case, and they are often overlooked," he said.

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