Subject: Verdicts & Settlements Dec. 4, 2006: Tired trucker Accident

Pub: Lawyers USA

Author: Natalie White

Category: Justice,Transportation

Sub-Category: Courts

Issue Date: 12/04/2006      Word Count: 779

Verdicts & Settlements Dec. 4, 2006: Tired trucker accident

by Natalie White

Dolan Media Newswires


BOSTON, MA -- An Arizona jury recently ordered a trucking company to pay a tow truck driver whose leg was severed when an exhausted trucker lost control of his 18-wheel rig and slammed into him on Christmas Eve four years ago.

The jury decided that Little Bear Transport should pay Bruce Austin in compensatory damages and punitive damages.

The plaintiff claimed that the transport company and its long-distance driver flaunted public safety and federal laws limiting driving hours.

"The jury wanted to send a message to the trucking industry that this won't be tolerated," said Richard Gonzales, who represented Austin. "The jury wants the trucking industry to stop playing around with public safety."

Gonzales said the industry pushes drivers to work long hours, making them distracted, tired and unsafe.

When he talked to jurors after the trial, they said "this was the kind of case that should come to trial," according to Gonzales. "They were very angry because they knew that this puts the public at risk."

Pushing the limits

On Christmas Eve, 2001, Austin was called to the scene of a fatal accident. He was hitching the car to his tow truck in a median strip of Interstate 10 near Bowie, Ariz., when an 18-wheeler driven by Kenneth Virgil Howard barreled through the median strip, hitting Austin and cutting off his right leg. The 58-year-old plaintiff also lost his left thumb, broke several ribs and fractured his left shoulder.

Gonzales said that the driver, who lives in Utah, said he was traveling at about 70 mph when a car in front of him slowed down. He lost control of his rig when he hit the brakes, causing the tractor trailer truck to careen into the median strip and slam into several vehicles that had been involved in the previous accident.

Gonzales told jurors the accident was not so simple. He argued that it was the culmination of many forces, including company policies that push drivers to drive extended hours and falsify their driving logs in order to circumvent federal limits on driving hours.

At trial, officers from the Arizona Department of Public Safety testified that they caught Howard making changes in his logbook while he sat in his rig at the accident scene.

The defense argued that accident wasn't caused by sleepiness and noted that Howard was not swerving or driving the way a sleepy driver would drive.

But Gonzales countered that argument, saying the driver was obviously distracted, and described the scene to jurors.

"My client was lying on his back hooking a vehicle in the median strip. There were emergency vehicles, squad cars, lights, cones and flares. There was no way you could miss this," Gonzales said. "There was no question of drugs or alcohol. But he just came barreling into that median strip. He never even braked. He was either fatigued or inattentive, and that's why the laws are out there - to protect from fatigued or inattentive and distracted drivers."

Howard admitted to police at the accident scene that he had falsified his daily logbook. He said he was driving longer than allowed because he was trying to get home to Salt Lake City for Christmas.

But Gonzales said this was not a one-time violation for Howard. He told jurors that the logbook showed the trucker falsified the logs for the whole week before the accident.

'Evil' intent

The trucking company admitted liability before trial, leaving jurors to grapple only with the question of damages.

In order to prove punitive damages, Gonzales had to prove "evil" intent.

"We argued that he knowingly pursued his own interest, knowing that it created risks to others. In this case, he said he was trying to get home and he falsified logs even though he was over the limit - and in doing so he knew he was putting the public at risk," said Gonzales.

He argued that the trucking company - which has records of gas slips and mileage to compare with log books - could easily see that Howard was not following driving hour limits.

"The trucking company knows," Gonzales said. "It's a game of cat-and-mouse and the industry allows it to happen as long as the drivers are making money for the company."

Gonzales said his client lost his tow-truck company and vehicle repair shop after the accident, although he has been able to keep other businesses that he owns, such as a store and Laundromat.

Plaintiff's attorney: Richard Gonzales of The Gonzales Law Firm in Tucson, Ariz.

The case: Austin v. Little Bear Transport; Nov. 9, 2006; U.S. District Court for the District of Arizona; Judge Raner C. Collins.

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