Truck Company To Pay Injured Girl; Attorneys Brought Negligent Entrustment Claim
DOLAN MEDIA NEWSWIRE:
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.
Challenges
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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