Prejudice and Bias as a Factor in Evaluating Trucking Liability Claims

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We have come a long way toward eliminating personal traits such as race, gender and nationality as factors in our everyday lives.  Discrimination on the basis of extraneous personal characteristics is one of the more unpleasant aspects of human nature and our lawmakers have taken steps to discourage it and protect us from its harmful effects.  Equal opportunity laws impose severe penalties against those who discriminate against job seekers, home buyers and others on the basis of their appearance or accent.  However, one important arena of public interaction is relatively immune to efforts to level the playing field for all Americans.  One governmental institution remains an enclave of undue prejudice in our society.  Ironically, the very bastion of justice, the courtroom, is often the scene of some of the most egregious offenses to the American principle of fair play.  The jury system of resolving disputes harnesses the power of common sense and collective wisdom, but brings with it the unwanted baggage of bigotry and partiality.  The very nature of jury deliberations require confidentiality, thereby preventing anyone outside the jury room from knowing what motivated the verdict.  Due to this necessary isolation, jurors with an axe to grind fear no repercussions.  A dark-skinned, Hispanic female has an enforceable legal right to fair treatment in a job interview or loan application, but very little protects her from the possibility of becoming the victim of blatant discrimination if she is unfortunate enough to be a defendant in a personal injury lawsuit with a jury comprised of people with different racial and ethnic backgrounds.  If she also happens to be a professional commercial vehicle driver, the deck is stacked against her in quadruplicate. 

When claims professionals evaluate trucking liability claims for purposes of determining settlement value, setting reserves or any other reason, it is common to focus only on liability and damages while discounting or overlooking the effect of the parties' extraneous personal characteristics.  An investigation into the attitudes of potential jurors is an important part of the claim evaluation process. Like most claim investigative activity, the depth and cost of the attitude investigation should be tailored to the exposure risk.  In a moderate claim, a simple telephone call to a local trial attorney may result in a general summary of the venue's attitudes.  In more serious cases, it may be wise to retain a jury consultant to perform services such as community surveys, focus groups or mock juries.  

Whether it is called  prejudice, bias, discrimination or something else, the ingrained attitudes of the ultimate decision-makers in a personal injury or wrongful death claim will affect the outcome of the case.  Those attitudes must be considered as a part of the evaluation process, whether we like it or not.

Punitive Damages are Harder to Prove than Compensatory Damages

A federal judge in Kentucky recently dismissed punitive damages claims against a trucking company and its driver after determining that the plaintiff could not produce evidence to support his claim of gross negligence.  The accident occurred in wintry weather as the plaintiff was stopped in traffic.  The defendants' tractor trailer slid on an icy road and struck the rear of the car, causing personal injury to the driver.  In addition to the typical personal injury claim, the plaintiff added a claim for punitive damages by alleging that the truck driver's conduct was grossly negligent. To bolster the punitive damages claim, the plaintiff retained an accident reconstruction expert to offer his opinion that the truck driver's actions were "reckless" and "egregious."  Despite the so-called expert opinion, the court noted the distinction between ordinary negligence and gross negligence, quoting the following language of the Kentucky Court of Appeals:

Nearly all auto accidents are the result of negligent conduct, though few are sufficiently reckless as to amount to gross negligence, authorizing punitive damages. We are of the opinion that punitive damages should be reserved for truly gross negligence…. 

Kinney v. Butcher, 131 S.W.3d 357, 359 (Ky.App. 2004). Applying that legal standard to the facts of the case, the court held that there was no evidence that the truck driver exceeded the speed limit, was intoxicated, that he wantonly disregarded the road conditions or that his "failure to meet the fitness requirements of the Federal Motor Carrier Safety Regulations substantially contributed to the collision."  The court then granted summary judgment and dismissed the punitive damages claim. 

Recent Jury Verdicts:

A jury in Louisville, Kentucky awarded $118,489 to a plaintiff who claimed a low back injury without surgery.  Her car was broadsided by a commercial vehicle that had run a red light.  The company admitted fault for the accident but defended the claim on the basis of damages with evidence that the plaintiff's low back pain and bulging disc were due to pre-existing degenerative disc disease rather than the accident.  The plaintiff, whose treatment progressed from a chiropractor to a neurosurgeon to a pain specialist, asked for half a million dollars for pain and suffering.  The jury awarded about $28,000 in past medical expenses, $20,000 in future medical expenses, and $70,000 in pain and suffering.

A federal court jury in northern Kentucky awarded $217,754 to a plaintiff who claimed a back injury as the result of being rear-ended on the interstate by a tractor trailer.  The plaintiff was driving a pickup and towing a rented trailer at 55 mph in a 70 mph zone.  The parties disputed whether it was dark and whether the trailer lights were working when the tractor trailer struck it at 68 mph.  The jury found that the tractor trailer driver was 100% at fault and awarded the plaintiff all of the $48,575 he claimed in medical expenses and $67,500 for pain and suffering.  The rest of the damages award was for lost wages and permanent impairment.  

A Little Humor

The Florida Supreme Court recently decided to discipline a law firm that used a dog logo and "1-800-PIT-BULL" in its television commercials.  In a 20-page opinion outlawing the advertisements, the court noted that "images of sharks, wolves, crocodiles, and piranhas" could not be far behind.  The commercials ran for over four years before they were banned, reportedly after a pit bull breeder complained that being associated with personal injury lawyers was harmful to the public image of his dogs.  

For More Information

If you would like more information surrounding trucking and commercial transportation law, please contact one of Frost Brown Todd's Trucking and Commercial Transportation attorneys.