Verdict & Settlement Wins
Put Your Accident Behind You
Court: USDC Cincinnati
Plaintiff's Counsel: David M. Paris, David A. Herman
Cincinnati Jury Returns Verdict for $2 Million
David M. Paris and David Herman represented John Chapman, age 63, in regard to an accident he had on November 9, 2005. At that time, Mr. Chapman was single and living in the Philadelphia, Pennsylvania, vicinity. He had been employed as an over-the-road truck driver for a trucking company since 1997.
In the early morning hours of November 9, 2005, the Plaintiff left his employer’s facility to make a delivery to the Cincinnati area. At approximately 9 a.m., while operating his 18-wheeler semi tractor trailer southbound on I-71, he felt his trailer dragging, as if it wasn’t getting enough air to the rear tandems. He pulled over onto the right berm, approximately 3.5 feet from the edge of the highway. He reported the problem to his dispatch office and was under the impression that a mechanic would be sent to assist. One hour later, at 10 a.m., Defendant Johnny Whitaker, employed by Defendant Milford Towing, was dispatched to the scene.
Experts on towing were retained on both sides of the case who expressed opinions as to the applicable standard of care and customs and practices within that industry. They all agreed that:
- When a tow truck operator arrives at the location of a disabled vehicle, he must take control of the tow and recovery scene. The tow truck operator must conduct a hazard analysis and determine the safe place to position customers during the hook up, tow, and recovery process. When the customer is out of his vehicle, he should move them to that safe place. Moreover, if work is to be performed on a narrow shoulder (as was the case here), he should have the customer wait in the tow truck.
- The customer’s safety is the responsibility of the tow truck operator. A disabled vehicle should never be hooked up, lifted, or towed when the customer is still inside. Clear and unequivocal communication between the tow truck driver and the customer is critical to ensure that each understands the events that are going to occur and the sequence in which they are to occur.
A factual dispute existed as to the nature of the conversation that took place between Johnny Whitaker and John Chapman at the beginning of the towing and recovery process.
Mr. Whitaker testified that he arrived at the scene and met with the Plaintiff in front of his disabled cab. He told Mr. Chapman that he was going to tow the vehicle and that he should “watch out and move away because I’m going to lower my under-reach and back up the truck.” This instruction, “watch out and move away,” was somewhat inconsistent with what Mr. Whitaker had written in his police statement on the date of the accident, as well as what he stated in a recorded interview to an investigator six months later. Mr. Whitaker claims that he didn’t see the Plaintiff after that and assumed that he had walked behind his semi tractor trailer to pick up the triangular warning signs. Mr. Whitaker proceeded to place the T-bars of his tow truck under the front axle and lift the tow truck 12-18 inches into the air. He then chained the axles to the hydraulic lift and walked around his tow truck from the passenger’s side to the driver’s side, at which time he saw the Plaintiff exiting the disabled cab. The cab was still raised 12-18 inches off the ground. As the Plaintiff moved his left foot from the first step, he lost his balance and fell towards the roadway. While still in midair, he was struck by a southbound box truck.
John Chapman testified that Mr. Whitaker arrived at the scene and told him that he was instructed to tow the vehicle. Mr. Chapman responded that he was under the impression a mechanic was going to be dispatched and that he would not permit the truck to be towed without first obtaining permission from his dispatcher. He testified that he specifically told Mr. Whitaker to wait and do nothing until he returned. He then turned around and climbed into the cab. After spending several minutes in the cab speaking with his dispatcher and securing his personal and business belongings, he intended to climb down from the cab and tell Mr. Whitaker to proceed with the tow and recovery. He opened the cab door and stepped out of his cab facing inward and using a 3 point contact hold. As he was stepping down to the second step, he lost his balance and fell. When asked to describe what caused him to fall, he testified that he had the sensation of the truck moving, as if it was being lifted and that he felt as if he were being thrown off the truck.
At trial, the Defendant sought to discredit the Plaintiff by demonstrating conclusively that the truck was not being lifted as he was exiting and that his characterization was not only incorrect, but an outright lie. Plaintiff’s towing expert testified, however, that a truck that is suspended 12-18 inches in the air by a hydraulic T-bar is unstable and will wobble, rock, or sway when weight is placed on the steps while trying to climb in or out of the cab. This evidence, which was uncontroverted by the defense, provided the explanation as to why the Plaintiff had the sensation that the truck was being lifted.
Mr. Chapman sustained massive injuries to his right leg which resulted in an above the knee amputation, a prosthetic leg, and extensive rehabilitation. He had $280,000 in medical bills, $430,000 in impaired earnings, and a lifetime of disability.
The jury returned a verdict in the amount of $2,000,513. They found that the Defendants were negligent and that their negligence contributed 75 percent to cause this accident. They also concluded that Mr. Chapman’s negligence contributed 25 percent to cause the accident and reduced the $2M verdict by 25%.