Archive for April, 2016

Straw v. Fair – Vicarious Liability in Car Accident Lawsuits

The family of a 6-year-old boy killed in a tragic rear-end auto accident in 2012 has been awarded $32 million in compensation from the employer of the speeding driver who rear-ended his father’s car.

However, the company’s defense lawyer has expressed the intention to file an appeal of that verdict, meaning it will be some time before the family ever sees that money. And of course, it’s not really about the money, which is never going to bring back their beloved child.

At The Law Offices of Mark E. Salomone & Morelli, our Hartford injury attorneys recognize that employers must be held accountable for the actions of reckless drivers. In so doing, we fight to ensure companies will be more cautious in hiring drivers, in properly training them and in adequately supervising them. This reduces the likelihood of future accidents – so that the next family doesn’t have to cope with such a devastating loss.

Connecticut law allows employers to be held either vicariously liable or directly negligent. Direct negligence would include actions like improper supervision, negligent hiring, negligent training, negligent retention and more. However, when companies are held vicariously liable for the actions of their drivers, it is not necessary to prove they were actually negligent, only that they employed someone who was negligent and that employee was acting in the course and scope of employment at the time of the incident.

In this case, the employee/ driver was reportedly speeding in the defendant company’s pickup truck while on-the-job when he struck plaintiff’s vehicle.

Minutes earlier, plaintiff’s front hood had popped open while he was driving with his wife and two young sons. He was forced to pull over to put the hood back into its proper position. He turned his hazard lights on while he stepped out to put the hood down. As he did so, he noticed a pickup truck approaching. It was not slowing down. At some point, he realized it was not going to stop.

It would later be revealed the driver was distracted while picking up several items that had fallen onto the floor. The driver slammed into the rear of plaintiff’s vehicle.

The impact of the crash resulted in serious injuries to the driver, his wife and their 4-year-old son. Their 6-year-old son, meanwhile, was killed in the crash.

The driver would later plead guilty in criminal court to vehicular homicide, two counts of reckless endangerment and two counts of speeding. He had been traveling 71 mph in a 55 mph zone. The plea deal into which he entered in that case – for which he served two years in prison – resulted in an automatic finding in the civil case that he was negligent in causing the crash. That meant the only question for the court to consider was whether the pickup truck driver’s employer was directly or vicariously negligent for the boy’s death.

Ultimately, jurors found the employer directly liable for negligent entrustment. Specifically, the company entrusted the driver with that vehicle, despite the fact his driving record included prior citations for driving under the influence and company policy precluded employees with DUIs from operating company vehicles.

After this finding, the issue of damages was raised. Jurors ultimately decided the company should be responsible to cover the full $32 million.

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Kozlov v. AWG – Tractor-Trailer Crash and Contributory Negligence

In any Connecticut personal injury lawsuit, a claimant’s own negligence in contributing to the injury won’t bar recovery for personal injury, wrongful death or damage to property, per Conn. Gen. Stat. 52-572h.

However, this contributory negligence statute only extends so far. Connecticut follows what is called the modified comparative fault rule, with a 51 percent bar. What this means is that plaintiffs who share some part of the blame can still collect damages from others, so long as their own fault does not exceed 50 percent – or more than that of defendant(s). If they are 50 percent or less at fault, damages may be reduced by their own degree of fault.

So for example: A plaintiff deemed 25 percent at fault will in theory be able to recover 75 percent in damages. Additionally, damages may be reallocated to the other defendants if plaintiff is unable to collect from one or more co-defendants.

At The Law Offices of Mark E. Salomone & Morelli, our Hartford injury attorneys recognize that these complex matters of law require meticulous research, careful planning and strong arguments.

In the case of Kozlov v. AWG, recently before the U.S. Court of Appeals for the Eighth Circuit Court of Appeals, a tractor-trailer accident case, the issue of contributory negligence was central.

According to court records, plaintiffs were employees of a trucking company who were injured when a tractor-trailer, driven by an employee of Associated Wholesale Grocers, Inc. (AWG) collided with their own tractor-trailer on a rural interstate in Nebraska. The AWG employee was killed in the crash.

Plaintiffs, driver and his passenger in the other tractor-trailer, filed personal injury lawsuits against AWG and the estate of deceased driver. Lawsuits against decedent driver’s estate were settled prior to trial so that only cases pending against AWG proceeded.

At trial, jurors found that both plaintiffs and AWG met their proof burdens. Plaintiff driver was found 84 percent at-fault. Passenger was found 8 percent at-fault and AWG was found 8 percent at-fault. Because the comparative fault law in Nebraska (which follows a model of modified comparative fault with a 50 percent bar) is similar to that in Connecticut, and because plaintiffs’ negligence was either equal or greater than defendant’s negligence, they were barred from recovery.

Plaintiffs appealed that ruling, but the federal appellate court affirmed.

In its review, the Eighth Circuit noted plaintiff driver had responded to a print advertisement that specifically requested Russian drivers with little to no trucking experience. He was subsequently hired to drive from New York to California. Because he was not experienced, his passenger, who had more experience, was assigned to drive with him for the cross-country trip. According to company policy, the less experienced driver was not to operate the truck at night and the more experienced driver was not to be in the sleeper berth while the inexperienced driver was behind the wheel. Plaintiff passenger was told by his boss to “keep an eye on” the new hire and to provide on-the-job training.

The accident in question happened around 1 a.m. Plaintiff passenger was asleep in the sleeper berth while the new driver was operating the truck. Decedent driver rear-ended the tractor-trailer driven by the new trucker. The impact of the crash caused the rear truck to burst into flames, killing the driver. Both occupants of the other truck were hurt.

There was no indication at the crash site of braking, skid marks or any type of evasive maneuvers, which revealed the driver in the rear didn’t try to stop, turn or change lanes.

Investigators with the state highway patrol determined this was a high-speed crash, which meant either decedent driver was traveling very fast or the new driver was traveling very slowly or both. What they would later learn was that the new driver was traveling just 13.5 mph immediately before the crash. The other truck, meanwhile, was traveling at least 70 mph.

Plaintiff was initially charged with vehicular manslaughter and furnishing false information to law enforcement. He was acquitted of the first charge but later convicted of the second. That information, which was allowed to be heard by jurors in the civil case, did not help plaintiffs’ credibility or cause.

All three drivers (including the estate of decedent) would have been eligible to receive workers’ compensation benefits, assuming they were considered employees and not independent contractors. But these personal injury lawsuits would have allowed for additional recover.

Decedent’s estate filed a wrongful death lawsuit against the other two drivers and their employer, and those drivers filed personal injury lawsuits against decedent’s estate and his employer. All claims were resolved prior to trial except the case between the survivors and decedent’s employer.

At trial, jurors determined the driver had suffered $320,000 in damages and he passenger $842,000 in damages. However, none of that could be collected because of their contributory negligence.

The federal appeals court concluded the trial court did not err or abuse discretion in its jury instructions, calculation of non-economic damages, allowing certain expert opinion into evidence or by excluding evidence of decedent driver’s failing health prior to the crash.

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