Recent Publications
Spring 2009
Trucking and Commercial Transportation Client Advisory: Spring 2009
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Is Your Business Liable for the Negligence of a Volunteer Helper?
When a small country store ran out of sausage during the breakfast rush, an employee offered to have her husband go pick up some sausage at Wal-Mart. The employee gave her husband, who was filling his car with gas after dropping her off at work, a twenty dollar bill from the cash register to pay for the sausage. On the way to Wal-Mart, the husband lost control of his car at over 100 miles per hour. He struck an oncoming car and severely injured the two occupants. (The accident killed the husband). The injured parties sued not only the estate of the husband, but also the country store. The suit claimed that the store was liable for the husband’s negligence on the basis of
respondeat superior, which holds a party responsible for the acts of an agent or employee who is acting on behalf of the party. However, the trial court dismissed the claims against the store on the ground that the husband was neither an employee nor an “agent” of the store. In a well-reasoned opinion, the Kentucky Court of Appeals noted that the husband drove his own vehicle, chose his route, and was free to terminate the errand at any time without consequence. The appellate court held that the husband may or may not be an “agent” of the store for purposes of contract law, but that the store was not vicariously liable for his negligence because the store had insufficient control over him.
Plaintiffs’ Court Shopping: “We Got Sued Where?”
In truck crash liability cases, conventional wisdom says that lawsuits are filed in the jurisdiction where the accident occurred. However, lawyers who represent personal injury or wrongful death plaintiffs have some discretion in deciding where to file a lawsuit. To have power over a suit, a court must have “jurisdiction.” In most states, that means one or more of the parties reside in that state or that an action that caused the injury took place in that state. Within a state, the particular court where the case can be heard is said to be the proper “venue.” While each state observes its own rules, venue can usually be found in several places, including the county where the accident occurred, any county where a party resides, and even where a defendant is served with process. A case filed in the wrong venue can proceed unless and until the defendant formally objects to the venue. If the plaintiffs and defendants are residents of different states, or if a question of federal law is involved, the plaintiff can file suit in the federal court for the district where the accident happened or where any of the defendants reside.
Jurors in different venues have been known to be predisposed in favor of plaintiffs or defendants in personal injury cases. Local lawyers usually know the tendencies of jurors and judges in a particular area. The evaluation of a liability claim must take jurisdictional factors into account. A trial held in one court may have a very different result than the same trial would have had in another court. With all the available options, it is no wonder that plaintiffs’ lawyers shop around to determine the most favorable court before filing suit. Often, a plaintiff will select parties to name as defendants not because they are genuinely liable, but instead because the residency of the parties may be used to manipulate the jurisdiction in which suit can be heard.
A defendant who has been sued in a court where he doesn’t want to litigate has a few options. If suit was filed in a state court, a defendant may remove it to federal court if certain requirements, including a very short timeframe, are met. An objection to venue must be promptly asserted, or may be implicitly waived. A defense of lack of jurisdiction can be raised at any time. A lawsuit can sometimes be transferred to another venue, or even another jurisdiction, on the grounds of
forum non conveniens, a procedure usually requiring proof that moving the case to another court would alleviate a specific hardship.
A proactive defendant who has not yet been sued but faces the likelihood of being sued in an unfriendly court can sometimes seize the initiative from a plaintiff by filing a pre-emptive suit in a more favorable venue. This can take the form of a negligence claim (if both parties suffered losses and liability is at issue) or a “declaratory” action (asking the court to determine the proper amount of damages). Of course, a counterclaim from the plaintiff is inevitable.
At the start and at intervals during the litigation, the defense team should identify the courts with possible jurisdiction and venue over the suit and consider the feasibility and desirability of moving the case to achieve fairness. Although the plaintiff is said to be the master of his claim and has traditionally chosen the forum, a well-prepared and discerning defendant may yet have some control over where the case is litigated.
Recent Jury Verdicts:
A personal injury case tried in federal court in Lexington, Kentucky involved a tractor-trailer driver who failed to see a red traffic signal and struck Plaintiff’s car broadside at highway speed. The trucking company accepted 100% liability. Punitive damages and negligent hiring claims were dismissed before trial. Plaintiff, a forty-nine year-old female, suffered fractures to her pelvis, vertebra, ribs and shoulder, as well as a confirmed traumatic brain injury. She was unable to return to her employment as a railroad supervisor. Past medical expenses of $159,000 were uncontested. Plaintiff asked for one million dollars in lost wages, four million dollars in future medical expenses and uncapped pain and suffering damages. After a four-day trial, the jury awarded a total of $1,666,382, which was considerably less than the settlement offer.
A Plaintiff who claimed a fractured vertebra following a collision was surprised by a recent verdict returned by a Harlan, Kentucky jury. After the defendant admitted fault for the minor rear-end collision, the case went to trial on the issue of damages only. A treating doctor testified that he had diagnosed a vertebral fracture, but a defense medical expert interpreted a CT scan and testified that there was no fracture. The jury awarded the plaintiff nothing on the claims for medical expenses, permanent impairment and pain and suffering.
No Sense of Humor
A driver received an envelope in the mail from the police department with a $50 speeding ticket and a photograph of his truck speeding through an automated radar trap. Cleverly, he mailed the police department a photograph of a $50 bill. A few days later, he received another photograph in the mail. This one showed a pair of handcuffs.
For more information, please contact our
Trucking and Commercial Transportation Group at Frost Brown Todd.