Motor Carrier Claims for Negligent Entrustment, Hiring and Retention

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Motor Carrier Claims for Negligent Entrustment, Hiring and Retention Navigating Discovery, Apportionment of Fault, Impact of Motor Carrier's Admission of Vicarious Liability, and More WEDNESDAY, AUGUST 16, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: J. Kent Emison, Partner, Langdon & Emison, Kansas City, Mo. Patrick E. Foppe, Esq., Lashly & Baer, St. Louis Matthew Wright, Founder, Wright Law, Franklin, Tenn. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

2 Reagan vs Dunaway Timber: Negligent Hiring & Retention of a Truck Driver Jury Instructions Stafford Webinar Motor Carrier Claims for Negligent Entrustment, Hiring & Retention August 16, 2017 **** J. Kent Emison Langdon & Emison **** Office Locations 911 Main Street 1828 Swift Avenue Suite 303 Lexington, MO North Kansas City, MO E. Lockwood Suite W. Monroe Suite 3700 St. Louis, MO Chicago, IL LangdonEmison.com

3 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION TERI REAGAN, Individually and as Personal Representative of the Estate of Roger Reagan; and MAVERICK TRANSPORTATION, LLC. PLAINTIFFS v. Case No. 3:10-CV DUNAWAY TIMBER COMPANY; MORGAN QUISENBERRY; JOHN DOE TRUCKING; and JOHN DOE INCORPORATED DEFENDANTS! THIRD-PARTY PLAINTIFFS v. BARRY MCCOY THIRD-PARTY DEFENDANT FINAL INSTRUCTIONS 1. Explanatory (8th Cir. 3.01) 2. Fault - Definition (AMI 301) 3. Negligence - Definition (AMI 302) 4. Ordinary Care - Definition (AMI 303) 5. Duty to Use Ordinary Care (AMI 305) 6. Issues - Claim for Damages Based on Negligence - Burden of Proof (AMI 203) 7. Issues - Third-Party Claim - Burden of Proof (AMI 203 modified) 8. Proximate Cause - Definition (AMI 501) 9. Violation of Statute as Evidence of Negligence (AMI 601) 10. Common Law Rules of the Road - Lookout - Control - Speed (AMI 901) 11. Violation of Regulation as Evidence of Negligence (AMI 601) 12. Limiting Instruction 13. Measure of Damages - Wrongful Death - Cause of Action (AMI 2216) 14. Effect of Instruction as to Damages (OG&L Revised) 15. Judge s Opinion (8th Cir. 3.02) 16. All Persons Equal Before the Law - Organizations (OG&L Revised) 17. Credibility of Witnesses (8th Cir. 3.03) 18. Expert Witnesses (AMI 107) 19. Burden of Proof (8th Cir and AMI 202, modified) 20. Election of Foreperson; Duty to Deliberate; Communications with Court; Cautionary; Unanimous Verdict; Verdict Form (8th Cir. 3.06)

4 FINAL INSTRUCTION NO. I EXPLANATORY Members of the jun, the instructions I gave at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions. You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now as well as those I gave you earlier are in writing and will be available to you in the jury room.

5 FINAL INSTRUCTION NO.2 FAULT - DEFINITION When I use the word fault in these instructions, I mean negligence.

6 NEGLIGENCE - DEFINITION FINAL INSTRUCTION NO.3 something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar lo those shown by the evidence in this case. When I use the word negligence in these instructions, I mean the failure to do

7 FINAL INSTRUCTION NO.4 ORDINARY CARE - DEFINITION A failure to exercise ordinary case is negligence. When I use the words ordinary care, I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.

8 FINAL INSTRUCTION NO.5 DUTY TO USE ORDINARY CARE It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety of others and the property of others.

9 FINAL INSTRUCTION NO.6 ISSUES - CLAIM FOR DAMAGES BASED ON NEGLIGENCE - BURDEN OF PROOF Plaintiffs claim damages from Defendants Dunaway Timber Company and Morgan Quisenberry and have the burden of proving each of three essential propositions: First, that they have sustained damages; Second, that Defendants Dunaway Timber and Morgan Quisenberry. or one of them, was negligent; AND Third, that such negligence was a proximate cause of the Plaintiffs damages.

10 FINAL INSTRUCTION NO.7 ISSUES - THIRE-PARTY CLAIM - BURDEN OF PROOF Plaintiffs do not claim damages from Third-Party Defendant Barry McCoy. Defendants, however, have brought a claim against Third-Party Defendant Barr McCoy. Defendants claim that Mr. McCoy was negligent and that all fault arising from the accident in this case should be assessed against Mr. McCoy. Defendants Dunaway Timber Company and Morgan Quisenberry have the burden of proof on their third-party claim. Defendants have the burden of proving the following essential propositions: First, that Barry McCoy was negligent; AND Second, that such negligence was a proximate cause of the Plaintiffs damages.

11 FINAL INSTRUCTION NO. 8 PROXIMATE CAUSE - DEFINITION The law frequently uses the expression proximate cause, with which you may not be familiar. When I use the expression proximate cause, I mean a cause which, in a natural and continuous sequence, produces damages and without which the damage would not have occurred.

12 FINAL INSTRUCTION NO. 9 VIOLATION OF STATUTE AS EVIDENCE OF NEGLIGENCE There were in force in the State of Arkansas at the time of the occurrence the following statutes: fftt: Carcless and prohibited driving. (a) It shall be unlawful for any person to drive or operate any vehicle in such a careless manner as to evidence a failure to keep a proper lookout for other traffic, vehicular or otherwise, or in such a manner as to evidence a failure to maintain proper control on the public thoroughfares or private property in the State of Arkansas. (b) It shall be unlawful for any person to operate or drive any vehicle on the public thoroughfares or private property in the State of Arkansas in violation of the following prohibited acts: (1) Improper or unsafe lane changes on public roadways; (6) To operate any vehicle in such a manner which would cause a failure to maintain control; (8) To operate a vehicle in any manner, when the driver is inattentive, and such inattention is not reasonable and prudent in maintaining vehicular control. Second: Driving on Right Half of Roadways. (a) Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway. A violation of one or more of these two statutes, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.

13 FINAL INSTRUCTION NO. 10 COMMON LAW RULES OF THE ROAD - LOOKOUT - CONTROL - SPEED In determining whether the driver of a motor vehicle was negligent, you may consider the following three ruies of the road: First: it is the duty of the driver of a motor vehicle to keep a lookout for other vehicles or persons on the street or highway. The lookout required is that which a reasonably careful driver would keep under circumstances similar to those shown by the evidence in this case. Second: it is the duty of the driver of a motor vehicle to keep his vehicle under control. The control required is that which a reasonably careful driver would maintain under circumstances similar to those shown by the evidence in this case. When the driver sees danger or when danger would be reasonably apparent to the driver who is keeping a proper lookout or when the driver is warned of approaching imminent danger, then he is required to use ordinary care to have his vehicle under such control as to be able to check its speed or stop it, if necessary, to avoid damage to himself or others. Third: it is the duty of the driver of a motor vehicle to drive at a speed no greater than is reasonable and prudent under the circumstances. having due regard for any actual or potential hazards. A failure to meet the standard of conduct required by any of these three rules is negligence.

14 motor vehicle control skills for each vehicle group which the driver operates or expects to (a) Basic vehicle control skills. All applicants for a CDL must possess and demonstrate basic First: 49 C.F.R Required skill. VIOLATION OF REGULATION AS EVIDENCE OF NEGLIGENCE FINAL INSTRUCTION NO. 11 There were in force as a matter of federal law at the time of the occurrence the following Federal Motor Carrier Safety Regulations: Second: 49 C.F.R Hazardous conditions; extreme caution. not be resumed until the commercial motor vehicle can be safely operated. (b) Safe driving skills. All applicants for a CDL must possess and demonstrate the safe operate. These skills should include the ability to start, to stop, and to move the vehicle forward and backward in a safe manner. driving skills for their vehicle group. These skills should include proper visual search methods, appropriate use of signals, speed control for weather and traffic conditions, and ability to position the motor vehicle correctly when changing lanes or turning. Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous. the operation ofthe commercial motor vehicle shall be discontinued and shall

15 Third: 49 C.F.R Maximum driving time for property carrying vehicles. (a) No motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle: (1) More than 11 cumulative hours following 10 consecutive hours off-duty; (2) For any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty... Fourth: 49 C.F.R Driver s record of duty status. (a) Except for a private motor carrier of passengers (nonbusiness), every motor carrier shall require every driver used by the motor carrier to record his/her duty status for each 24 hour period using the methods prescribed in either paragraph (a)(1) or (2) of this section. (1) Every driver who operates a commercial motor vehicle shall record his/her duty status, in duplicate, for each 24-hour period. (e) Failure to complete the record of duty activities of this section or , failure to preserve a record of such duty activities, or making of false reports in connection with such duty activities shall make the driver and/or the carrier liable to prosecution. Fifth: 49 C.F.R Application for employment (a) Except as provided in subpart G of this part, a person shall not drive a motor vehicle unless he/she has completed and furnished the motor carrier that employs him/her with an application for employment that meets the requirements of paragraph (b) of this section.

16 revocation, or suspension of any license, permit, or privilege to operate a motor vehicle that has been issued to the applicant, or a statement that no such denial, revocation, or suspension has occurred; application was completed by me, and that all entries on it and information in it are information required by paragraph (b) of this section on the application form. the 3 years preceding the date the application is submitted, specif4ng the date and (9) A statement setting forth in detail the facts and circumstances of any denial, the application form and be signed by the applicant: This certifies that this Each application form must be completed by the applicant, must be signed by himlher, and must contain the following information: nature of each accident and any fatalities or personal injuries it caused; (12) The following certification and signature line, which must appear at the end of true and complete to the best of my knowledge. (Date) (Applicant s signature) (b) The application for employment shall be made on a form furnished by the motor carrier. (7) A list of all motor vehicle accidents in which the applicant was involved during (c) A motor carrier may require an applicant to provide information in addition to the

17 Sixth: 49 C.F.R Motor carrier to require observance of driver regulations. Whenever in part 325 of subchapter A or in this subchapter a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. Seventh: 49 C.F.R General applicability (a) The rules in subchapter B of this chapter are applicable to all employers, employees, and commercial motor vehicles, which transport property or passengers in interstate commerce. (b) The rules in part 383, Commercial Driver s License Standards; Requirements and Penalties, are applicable to every person who operates a commercial motor vehicle, as defined in of this subchapter, in interstate or intrastate commerce and to all employers of such persons. (d) Additional requirements. Nothing in subchapter B of this chapter shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health. (e) Knowledge of and compliance with the regulations. (1) Every employer shall be knowledgeable of and comply with all regulations contained in this subchapter which are applicable to that motor carrier s operations (2) Every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations contained in this subchapter.

18 Eighth: 49 C.F.R Scope of the rules in this part; additional qualifications; duties of carrier-drivers. (a) The rules in this part establish minimum qualifications for persons who drive commercial motor vehicles as, for, or on behalf of motor carriers. The rules in this part also establish minimum duties of motor carriers with respect to the qualifications of their drivers. A violation of one or more of these regulations, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.

19 FINAL INSTRUCTION NO. 12 LJMITING INSTRUCTION In making your determinations as to negligence in this case. you may consider whether or not Morgan Quisenberry may have previously had his license suspended or revoked. However, any comment or implication you have heard, or think you may have heard, regarding any underlying reason for such suspension or revocation should not be considered by you for any reason at all. You should put any such comments, implications, or insinuations out of your mind completely.

20 FINAL INSTRUCTION NO. 13 MEASURE OF DAMAGES - WRONGFUL DEATH - CAUSE OF ACTION Ten Reagan. as administrator of the Estate of Roger Reagan, deceased, represents the Estate of Roger Reagan and also, Ten Reagan, Brandie Reagan, and Corey Boothby. The administrator is suing for the following elements of damage on behalf of Ten Reagan (spouse of Roger Reagan) and Brandie Reagan and Corey Boothby:. (a) pecuniary injuries sustained by Ten Reagan (spouse of Roger Reagan) and Brandie Reagan and Corey Boothby; (b) mental anguish suffered and reasonably probable to be suffered in the future by Ten Reagan (spouse of Roger Reagan) and Brandie Reagan and Corey Boothby; (c) loss of consortium of Ten Reagan. First, let me explain to you what is meant by the term pecuniary injuries. This term refers to the present value of benefits, ineluding money, goods, and services, that Roger Reagan would have contributed to Ten Reagan (spouse of Roger Reagan) and Brandie Reagan and Corey Boothby, had he lived. In making your determination of pecuniary injuries, you may consider the following factors concerning Roger Reagan: (a) what Roger Reagan customarily contributed in the past and might have been reasonably expected to contribute had he lived; (b) the period during which any beneficiary might reasonably expect to have received contributions from Roger Reagan; (c) what Roger Reagan earned and might have been reasonably expected to earn in the future; (d) what Roger Reagan spent for customary personal expenses and other deductions;

21 of damage you find were proximately caused by the negligence or fault of the defendants. (1) the life expectancy of Roger Reagan and of Ten Reagan (spouse of Roger Reagan) and (g) Roger Reagan s habits of industry, sobriety, and thrift; (h) Roger Reagan s occupation; (f) Roger Reagan s health; reasonably given his children had he lived; Brandie Reagan and Corey Boothby. Second, let me explain to you what is meant by mental anguish. This term means the mental suffering resulting from emotions, such as grief and despair, associated with the loss of a loved one. Reagan) and Brandie Reagan and Corey Boothby, and the Estate of Roger Reagan for those elements The administrator is also suing for the following elements of damage on behalf of the estate: Third, let me explain what is meant by the term consortium. Consortium refers to the society, services, companionship, and marriage relationship of the husband. fix the amount of money that will reasonably and fairly compensate Ten Reagan (spouse of Roger If an interrogatory requires you to assess the damages of the administrator, you must to his death. (d) medical expenses attributable to the fatal injury; (e) the value of any earnings lost by Roger Reagan prior to his death; (f) any scars, disfigurement and visible results of the injury sustained by Roger Reagan prior (e) what instruction, moral training, and supervision of education Roger Reagan might have (a) Roger Reagan s loss of life; (b) the reasonable value of funeral expenses; (c) conscious pain and suffering of Roger Reagan prior to his death;

22 Whether any of the damages sued for on behalf of Ten Reagan (spouse of Roger Reagan) and Brandie Reagan and Corey Boothby, and the Estate of Roger Reagan have been proved by the evidence is for you to determine.

23 FThJAL INSTRUCTION NO. 14 EFFECT OF JNSTRUCTION AS TO DAMAGES The fact that the Court has instructed you as to the proper measure of damages should not be considered as intimating any view of the Court as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given for your guidance in the event you should find liability of the defendant by a preponderance of the evidence in the case in accordance with the other instructions.

24 I asked questions I hold any opinion on the matters to which my questions related. be. Neither in these instructions nor in any ruling, action or remark that I have made during the JUDGE S OPINION FINAL INSTRUCTION NO. 15 course of this trial have I intended to give any opinion or suggestion as to what your verdict should During this trial I have occasionally asked questions of witnesses. Do not assume that because What the verdict shall be is the sole and exclusive duty and responsibility of the jury.

25 ALL PERSONS EQUAL BEFORE THE LAW - ORGANIZATIONS FINAL INSTRUCTION NO. 16 This case should be considered and decided by you as an action between persons of equal All persons. including organizations and corporations. stand equal before the law and are to be standing in the community, of equal worth, and holding the same or similar stations in life. An organization or corporation is entitled to the same fair trial at your hands as a private individual. dealt with as equals in a court ofjustice.

26 testimony you do not believe. You may believe all of what a witness said, or only part of it, or none In deciding what the facts are, you may have to decide what testimony you believe and what CREDIBILITY OF WITNESSES FINAL INSTRUCTION NO. 17 have for testiing a certain way, the mariner of a witness while testipying, whether a witness said something different at an earlier time, the general reasonableness of the testimony, and the extent things differently and sometimes forget things. You need to consider therefore whether a may depend on whether it has to do with an important fact or only a small detail. contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that to which the testimony is consistent with any evidence that you believe. a witness had to see or hear the things testified about, a witness memory, any motives a witness may In deciding what testimony to believe, you may consider a witness intelligence, the opportunity In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see of it.

27 An expert witness is a person who has special knowledge, skill, experience, training, or education An expert witness may give his/her opinion on questions in controversy. You may consider his/her opinion in the light of his/her qualifications and credibility, the reasons given for his/her opinion, and the facts and other matters upon which his/her opinion is based. you thinlc it should have. You may disregard any opinion testimony if you find it to be unreasonable. on the subject to which his/her testimony relates. EXPERT WITNESSES FINAL INSTRUCTION NO. 18 You are not bound to accept an expert opinion as conclusive, but should give it whatever weight

28 to it, has more convincing force and is more probably true and accurate. ofproof is required by another instruction. Preponderance ofthe evidence means the greater weight of BURDEN OF PROOF FINAL INSTRUCTION NO. 19 A party who has the burden of proof on a proposition must establish it by a preponderance of the the evidence. The greater weight of the evidence is not necessarily established by the greater number of evidence, unless the proposition is so established by other proof in the case or unless a different standard witnesses testifying to any fact or state offacts. It is the evidence, which, when weighed with that opposed Your verdict depends on whether you find certain facts have been proved by the greater weight ofthe evidence, In order to find that a fact or an element has been proved by the greater weight of the evidence, and deciding which evidence is more believable. If, upon any issue in the case, the evidence appears to question against the party who has the burden of proving it. out of your minds. be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that you must fmd that it is more likely true than not true. It is determined by considering all of the evidence You have probably heard of the phrase proofbeyond a reasonable doubt. That is a stricter standard that applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it

29 jurors. Remember at all times that you are not partisans. You are judges -judges of the facts. Your sole follow. In conducting your deliberations and returning your verdict, there are certain rules you must ELECTION OF FOREPERSON; DUTY TO DELIBERATE; COMMUNICATIONS WITH COURT; CAUTIONARY; UNANIMOUS VERDICT; VERDICT FORM FINAL INSTRUCTION NO.20 That person will preside over your discussions and speak for you here in court. should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous. through the Courtroom Security Ofticer, signed by one or more jurors. I will respond as soon as including me - how the evidence, discussed it fully with your fellowjurors, and listened to the views of your fellow not come to a decision simply because other jurors think it is right, or simply to reach a verdict. your votes stand numerically. possible either in writing or orally in open court. Remember that you should not tell anyone - Third, if you need to communicate with me during your deliberations, you may send a note to me interest is to seek the truth from the evidence in the case. Do not be afraid to change your opinions if the discussion persuades you that you should. But do Each of you must make your own conscientious decision, but only after you have considered all Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You First, when you go to the jury room, you must select one of your members as your foreperson.

30 you unanimously agree, and then inform the Courtroom Security Officer that you are ready to return suggest what your verdict should be - that is entirely for you to decide. interrogatory as a separate verdict. You will take the interrogatories to the j ui-v room and, when you Finally, this case is being submitted to you on interrogatories. You are to consider each have reached a unanimous verdict as to each interrogatory which you are required to answer, you will have your foreperson fill in, date, and sign the interrogatory which sets forth the verdict upon which you in my instructions. The verdict must be unanimous. Nothing I have said or done is intended to to the courtroom with the answers to the interrogatories. Fourth, your verdict must be based solely on the evidence and on the law which I have given to

31 TERI REAGAN, Individually and as Personal and MAVERICK TRANSPORTATION, LLC. PLAINTIFFS Yes or No Foreperson Date Yes or No Foreperson Date Representative of the Estate of Roger Reagan; DUNAWAY TIMBER COMPANY; MORGAN and JOHN DOE INCORPORATED THIRD-PARTY PLAINTIFFS from this accident? QUISENBERRY; JOHN DOE TRUCKING; DEFENDANTS! BARRY MCCOY THIRD-PARTY DEFENDANT upon the part of Dunaway Timber Company which was a proximate cause of any damages resulting upon the part of Morgan Quisenberry which was a proximate cause of any damages resulting from VEIUMCI FORM (TWO PAGES) v. v. Case No. 3:lO-CV WESTERN DISTRICT OF ARKANSAS IN THE UNITED STATES DISTRICT COI)T&T HARRISON DIVISION this accident? Interrogatory 2: Do you find from a preponderance of the evidence that there was negligence Interrogatory 1: Do you find from a preponderance of the evidence that there was negligence

32 Estate of Roger Reagan, Deceased S found to be responsible. Dunaway Timber Company injuries or damages resulting from it, apportion the responsibility between the parties whom you have Brandie Reagan Corey Boothby $ $ Ted Reagan S Barn McCoy TOTAL 100% Morgan Quisenberry 4. Ifyou answered more than one ofinterrogatories] through 3 Yes, then answer Interrogatory Interrogatory 3: Do you find from a preponderance of the evidence that There was negligence Interrogatory 4: Using 100% to represent the total responsibility for the occurrence and any Interrogatory 5: State the amount of any damages which you find from a preponderance of the upon the part of Barry McCoy which was a proximate cause of any damages resulting from this Yes or No Foreperson Date accident? evidence were sustained by Ted Reagan, Brandie Reagan, Corey Boothby, and the Estate of Roger Reagan. Deceased, as a result of the occurrence. Foreperson Date

33 Reagan vs Dunaway Timber: Negligent Hiring & Retention of a Truck Driver Closing Argument PowerPoint J. Kent Emison Strafford Webinar Motor Carrier Claims for Negligent Entrustment, Hiring & Retention August 16, 2017

34 Roger Reagan would be alive today with his family IF Dunaway Timber had never put Morgan Quisenberry on the road. Dunaway Timber had the power to prevent this tragedy.

35 August 7, 2008 Quisenberry applies for Dunaway job Morgan Quisenberry September 3, 2008 Collision that kills Roger Reagan August 13, 2008 Dunaway hires Quisenberry

36 Dunaway Knew or Should Have Known Mr. Quisenberry Had Two License Revocations KNEW: Mr. Quisenberry testified he told Will Smith (his boss) about the revocations when he was hired. SHOULD HAVE KNOWN: Internet Search 15 Minutes $15 All records were in the Ohio County, Kentucky Courthouse Criminal Background Check

37 Dunaway Timber Agrees With The Following: Safety of the motoring public should be Dunaway Timber s highest priority. It was important for Morgan Quisenberry to have the basic and fundamental skills for driving a semi truck interstate. Dunaway Timber should have found out as much as possible about Morgan Quisenberry before hiring him. In September 2008 Dunaway Timber needed to hire experienced drivers. In September 2008 Dunaway Timber needed to hire drivers who already had training. A careful company does not put drivers with two license revocations behind the wheel of its trucks on public roads.

38 Dunaway Timber Agrees With The Following: Hours of Service In September 2008 Mr. Quisenberry had a duty to fully comply with the Hours of Service Rules. In September 2008 Dunaway Timber had a duty to schedule Mr. Quisenberry to drive a route that could be legally completed within the Hours of Service Rules. Fatigue is a problem in the trucking industry. Fatigue is just as dangerous as driving under the influence.

39 Dunaway Timber Dispatched Morgan Quisenberry On A Trip He Could Not Legally Complete Knowing That: Semi truck drivers must work at their highest level of alertness; and If Mr. Quisenberry was not at his highest level of alertness someone could be seriously injured or killed.

40 A Recipe for Disaster Two License Revocations Prior Accidents: one involving hazardous materials Inadequate Training Inadequate Experience No Monitoring Hours of Service Violations hour rule: 6 hours over hour role: 2.5 hour over

41 The Crash

42 Dunaway Timber Should Have Prevented This Tragedy

43 INSTRUCTIONS

44 Plaintiff s Burden of Proof 1. They have sustained damages; 2. Defendants Dunaway Timber and Quisenberry, or one of them, was negligent; and 3. Such negligence was a proximate cause of Plaintiff s damages.

45 Negligence/Ordinary Care Negligence: The failure to do something which a reasonably careful person would do, or doing something which a reasonably careful person would not do under similar circumstances. Ordinary Care: A failure to use ordinary care is negligence Meaning of ordinary care: The care a reasonably careful person would use under similar circumstances.

46 Burden of Proof - Defined Preponderance of the evidence - Greater weight of the evidence

47 Proximate Cause A cause which, in a natural and continuance sequence, produces damages.

48 Claims Against Dunaway Timber and Mr. Quisenberry Violation of Statute - Evidence of Negligence Careless and Prohibited Driving or Driving on Right Half of Roadways A violation of any one or more of these two statutes is evidence of negligence.

49 Claims Against Dunaway Timber and Mr. Quisenberry Common Law Rules of the Road - Careful Look out; or - Driver must keep his vehicle under control; or - Driver must drive at a speed that is reasonable and prudent. A Failure to meet the standard of conduct required by ANY of these rules is negligence

50 Mr. Christ Do the untruths on Mr. Quisenberry s application make you wonder about his statement that he was not at fault in this accident? Mr. Christ s answer: Well, now that you ve asked me, there s definitely issues that I have to consider.

51 Basic Skills Federal Safety Rules Ability to position the semi truck before a turn to prevent offtracking Hazardous Conditions require extreme caution Hours of Service Rules 14 Hour Rule 11 Hour Rule Dunaway must assign or dispatch Mr. Quisenberry on a legal trip A Failure to meet the standard of conduct required by any one or more of these regulations is evidence of negligence.

52 Federal Safety Rules Employment Application Must be truthfully completed Employer must verify Carrier Must Require Driver to Comply If Mr. Quisenberry breaks a rule Dunaway breaks the rule. A Failure to meet the standard of conduct required by any one or more of these regulations is evidence of negligence.

53 Trucking: Tractor Trailer Driver Handbook/Workbook (3 rd Edition) pg Highway Curves To take a left curve, keep the tractor as close to the outer (right) edge of the lane as possible, to prevent the trailer from running over the center line. Exhibit 27

54 Plaintiffs are asserting NO claims against Barry McCoy

55 Burden of Proof 1. The laws of physics tip the scales. 2. Physical evidence tips the scales. 3. The testimony of eyewitnesses tips the scales. 4. Defenses disregard for eyewitness accounts tip the scales. 5. Reliance on truthfulness of Morgan Quisenberry tips the scales. 6. Common sense tips the scales. 7. Dunaway Timber s conduct tips the scales. 8. Scientific Analysis tips the scales.

56 Lynne Wilborn Morgan Quisenberry Sandra Stith Donald Stith Barry McCoy Jeff Copeland

57 Steve Jackson Trooper Evans Dunaway Timber Dr. Z Phil Smith Eyeballing Science Common Sense Laws of Physics Scientific Analysis Math

58 DAMAGES

59

60

61 MEASURE OF DAMAGES Pecuniary Injuries Sustained by Teri Corey Brandie Mental Anguish Teri Corey Brandie Loss of Consortium Teri Damages to Estate of Roger Reagan Roger s Loss of Life Roger s Conscious Pain and Suffering

62 Roger s Pain and Suffering Accident 6:37 Pulled to Safety Zone 6:57 Ambulance Departs 7:19 Roger Codes 7:49 20 minutes 22 minutes 30 minutes Roger Had Approximately 72 Minutes of Pain and Suffering

63 Verdict Form