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ST. LOUIS, MO
A truck driver has reached a global settlement in his Jackson County lawsuit against
another truck driver and his employer.
The facts of the case are as followed according to the plaintiff, and the defense
had no objection:
The accident began when plaintiff truck driver collided with a non-commercial vehicle.
The defendant truck driver then struck another vehicle, creating a domino effect
that ultimately knocked plaintiff off a bridge, causing serious injuries. Plaintiff
sought punitive damages against the defendant truck driver for Department of Transportation
violations and against his employer for negligent hiring and retaining.
Around 2 a.m. on July 31, 1999, Richard Gitschlag was driving a tractor-trailer
for Consolidated Freight northbound on U.S. 71 Highway and exiting onto I-435 in
Kansas City. A Ford Ranger driven by Pete Majors lost control on the wet pavement
in front of him, allegedly causing Gitschlag to strike the pickup.
Gitschlag was able to bring his jack-knifed tractor-trailer to a stop against the
guardrail over Hickman Mills Road. He claimed he started to exit his truck to put
out safety flashers and help Majors.
As Gitschlag was standing on the running board of his truck, Gary Harshman, who
was driving a tractor-trailer owned by Calloway Carriers, struck the rear of a Ford
Bronco driven by Christopher Green. Harshman then struck Gitschlag's truck, knocking
Gitschlag over the bridge and causing him to fall 35 feet onto Hickman Mills Road.
Gitschlag sustained multiple fractures to the pelvis, left arm, wrist, and ribs.
He also suffered internal injuries including a lacerated liver, ruptured spleen
and collapsed lung.
Gitschlag claimed that Harshman caused the accident by failing to keep a careful
lookout, driving at an excessive speed, striking the rear of Green's Bronco and
striking the rear of Gitschlag's trailer. Harshman claimed that Green pulled in
front of him, causing him to veer off the road and strike Gitschlag.
While Harshman testified he was not speeding at the time of the accident, plaintiff
alleged that Harshman had been on the road for five days and was in a hurry to get
home. Harshman testified that he left Texoma, Okla., between 7 p.m. and 8 p.m. on
July 30, 1999. The accident occurred about seven hours later, allegedly placing
Harshman's average speed at more than 70 mph to reach the accident scene.
Green testified that just before impact Harshman's truck appeared to be traveling
"50 mph or faster" in a 45 mph zone. Also, Harshman allegedly admitted
to Green after the accident that he thought he was going too fast. Both parties'
expert witnesses testified that the speed differential between Green's Bronco and
Harshman's tractor-trailer was at least 25 mph at impact, based upon substantial
damage to Green's Bronco.
In addition to speeding, plaintiffs argued, Harshman failed to keep a careful lookout
due to driver fatigue. At the time of the accident, Harshman had driven seven hours
in excess of the
10 hours allowed by DOT regulations.
In defense, Harshman and Calloway Carriers denied negligence. They argued that Gitschlag
was partly at fault for the accident because he rear-ended Majors' pickup truck.
Plaintiffs countered that the accident between Majors and Gitschlag had concluded.
Moreover, both expert witnesses testified that Majors' pickup truck was not within
the proper lane of travel and had rotated in a counterclockwise motion prior to
being struck by Gitschlag. Gitschlag testified the pickup truck had lost control
in front of him and was actually traveling backwards toward him when he struck it.
Furthermore, Gitschlag sought punitive damages against Harshman and against Calloway
Carriers for negligent hiring and retaining of Harshman. They made allegations that
Harshman admitted to violating DOT safety regulations and falsifying his log books
to hide the violation. They further claimed that Calloway knew, or should have known,
that Harshman had a history of serious traffic violations including allegations
of six speeding tickets, two license suspensions and two log book violations within
five years before the accident.
Following mediation about two months before trial, the parties reached the settlement.
Harshman's attorney, Brian Fowler, and Calloway's attorney, John Graham Jr., both
of Kansas City, noted that their clients paid to resolve a workers' compensation
subrogation claim.
Majors settled. His attorney, Jeffrey S. Nichols of Overland Park, declined
to comment.
Facts of the Case
Type of Action: Trucking accident
Type of Injuries: Fractured pelvis; fractured left arm and wrist; lacerated liver;
ruptured spleen; collapsed lung; fractured ribs
Court/Case Number/Date: Jackson County Circuit Court/04CV220560/Sept. 7, 2007
Judge, Jury or ADR: Mediation
Judge: Charles Atwell
Verdict or Settlement: settlement
Allocation of Fault: N/A
Last Offer: N/A
Last Demand: N/A
Attorneys for Plaintiff: Brian Franciskato and Dean Nash, Nash & Franciskato
Law Firm, Kansas City
Insurance Carriers: Liberty Mutual (for Calloway Carriers/Harshman; separate policy
for Majors)
Plaintiff's Experts: Steve McKenzie, Olathe, Kan. (accident reconstructionist);
Terry Winkler, Springfield (life care planner); Dennis Wylie, Santa Barbara, Calif.
(DOT regulations/driver fatigue)
Defendants' Expert: Dr. Edward Prostic, Prairie Village, Kan. (orthopedics); Bruno
Schmidt, Springfield (accident reconstructionist); Kenneth Thompson, Louisburg,
Kan. (DOT regulations)
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