Sun Tzu, The Art of War

Similar documents
STATE OF NORTH CAROLINA TRANSPORTATION COMPENDIUM OF LAW

STATE OF MISSISSIPPI TRANSPORTATION COMPENDIUM OF LAW

STATE OF NORTH DAKOTA TRANSPORTATION COMPENDIUM OF LAW

IN THE CIRCUIT COURT FIFTEENTH JUDICIAL CIRCUIT LEE COUNTY, ILLINOIS COMPLAINT

STATE OF TEXAS TRANSPORTATION COMPENDIUM OF LAW

IN THE CIRCUIT COURT OF SHANNON COUNTY, MISSOURI

STATE OF MINNESOTA TRANSPORTATION COMPENDIUM OF LAW

IN THE STATE COURT OF FULTON COUNTY STATE OF GEORGIA

DISTRICT OF COLUMBIA TRANSPORTATION COMPENDIUM OF LAW

STATE OF TEXAS TRANSPORTATION COMPENDIUM OF LAW

STATE OF FLORIDA TRANSPORTATION COMPENDIUM OF LAW

STATE OF INDIANA TRANSPORTATION COMPENDIUM OF LAW

STATE OF DELAWARE TRANSPORTATION COMPENDIUM OF LAW

4. Plaintiff, Valerie Battle-Dugger, is an adult individual, residing at all times relevant

CAUSE NO. v. FALLS COUNTY, TEXAS I. DISCOVERY CONTROL PLAN LEVEL

Chapter 12: Products Liability

IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR MANATEE COUNTY CIRCUIT CIVIL DIVISION

Relate the essential elements that must be proved in order to show liability. List the most common causes of lawsuits against emergency responders.

MINNESOTA TRUCK CRASH LAW OVERVIEW

FILED: NIAGARA COUNTY CLERK 02/15/ :54 PM INDEX NO. E157285/2015 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 02/15/2017

Strict Liability and Product Liability PRODUCT LIABILITY WARRANTY LAW

2017 DEC ii At! 10: 27

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION

Professor DeWolf Summer 2014 Torts August 18, 2014 SAMPLE ANSWER TO FINAL EXAM MULTIPLE CHOICE

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS, LAREDO DIVISION

Saskatchewan Association of Rural Municipalities

Customer will bring an action against Businessman under a negligence theory.

Are the IPI Instructions on Construction Negligence an Accurate Statement of Illinois Law?

Case 1:13-cv RJJ Doc #1 Filed 12/27/13 Page 1 of 7 Page ID#1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

NEGLIGENCE. All four of the following must be demonstrated for a legal claim of negligence to be successful:

Jeopardy. Road Commission Jeopardy. Charles F. Behler Smith, Haughey, Rice & Roegge, PC. Mark D. Jahnke Specialty Claims Services, Inc. Who Am I?

Defendants try to avoid liability by claiming a medical emergency caused them to lose control

Dynamic Opening Statements How to Establish Credibility and Persuade From the Beginning

STATE OF ALABAMA TRANSPORTATION COMPENDIUM OF LAW

Liability for criminal acts of employees

Indiana Rejoins Minority Permitting Negligent Hiring Claims Even Where Respondeat Superior is Admitted

STATE OF MICHIGAN TRANSPORTATION COMPENDIUM OF LAW

2013 STATE OF SOUTH CAROLINA TRANSPORTATION COMPENDIUM OF LAW

Function of the Jury Burden of Proof and Greater Weight of the Evidence Credibility of Witness Weight of the Evidence

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs February 19, 2008

IN THE CIRCUIT COURT OF CLAY COUNTY, LIBERTY, MISSOURI. Case No. Division

Case 1:17-cv CMA Document 1 Entered on FLSD Docket 01/09/2017 Page 1 of 45

APPENDIX II. INTERROGATORY FORMS. Form A. Uniform Interrogatories to be Answered by Plaintiff in All Personal Injury

Vicarious Liability Of A Corporate Employer For Punitive Damages

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION. Case No.

APPENDIX II. INTERROGATORY FORMS. Form A. Uniform Interrogatories to be Answered by Plaintiff in All Personal Injury

Filing # E-Filed 12/22/ :53:20 PM

YOU ARE HEREBY SUMMONED and required to Answer the Complaint, a copy of

DRIVER S APPLICATION FOR EMPLOYMENT

IN THE SUPERIOR COURT OF GREENE COUNTY STATE OF GEORGIA

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE. Plaintiff v. Defendant TRIAL BRIEF OF PLAINTIFF

Safety & Liability Does pursuit of safety expose an agency to liability? liability for action liability for inaction liability for trying something ne

Court of Appeals Ninth District of Texas at Beaumont

Fall 1994 December 12, 1994 SAMPLE ANSWER TO MID-TERM EXAM QUESTION 1

Court of Appeals. First District of Texas

COMMONWEALTH OF VIRGINIA TRANSPORTATION COMPENDIUM OF LAW

STATE OF MISSOURI TRANSPORTATION COMPENDIUM OF LAW

STATE OF WYOMING TRANSPORTATION COMPENDIUM OF LAW

STATE OF KANSAS TRANSPORTATION COMPENDIUM OF LAW

CAUSE NUMBER DC H. DEBORAH BROCK AND IN THE DISTRICT COURT CHRIS BROCK Plaintiffs

F 3.201(2)(A) IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS ) JOHN D. DOE, ) ) Case No. Plaintiff, ) ) vs. ) ) THOMAS M. SMITH, ) ) Defendant.

Plaintiff, for its Complaint against the above-captioned Defendants, states and

DEPARTMENT OF TRANSPORTATION. Hours of Service of Drivers: Application for Exemption; SikhsPAC and the North American Punjabiz Trucker Association

Professional Liability for Engineers. Presented by: Bill Henn Attorney Henn Lesperance PLC

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Superior Court in Maricopa County


STRICT LIABILITY. (1) involves serious potential harm to persons or property,

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1086/15

Application for Employment

Kyles v. Celadon Trucking Servs.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

STATE OF MICHIGAN COURT OF APPEALS

Defending Against the Dangerous Condition Exception to a Public Entity s Sovereign Immunity

COURT AWARDS ATTORNEYS FEES AGAINST PLAINTIFFS IN MOTOR CARRIER LEASING DISPUTE 1. Richard A. Allen

Civil Law is known as Private Law. Regulates disputes between individuals; between parties; and between individuals and parties.

SUMMER 2002 July 15, 2002 MIDTERM EXAM SAMPLE ANSWER

2013 STATE OF NEW YORK TRANSPORTATION COMPENDIUM OF LAW

3. Drawings, images, dimensions, weights or other characteristics given are only binding if this was explicitly agreed upon in writing.

In the Court of Appeals of Georgia

Assembly Bill No. 157 Assemblymen Oscarson, Ellison; Armstrong, Titus and Wheeler. Joint Sponsor: Senator Goicoechea

STATE OF IDAHO TRANSPORTATION COMPENDIUM OF LAW

FILED: NEW YORK COUNTY CLERK 12/06/2010 INDEX NO /2010

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON October 12, 2007 Session

Foster v GIC Trucking Inc NY Slip Op 33857(U) September 21, 2012 Supreme Court, Bronx County Docket Number: /10 Judge: Kenneth L.

Reports produced by the Federal Motor Carrier Safety Administration (FMCSA) for Congress between Nov and June 2010 and not posted online, 2010

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE SEPTEMBER 12, 2007 Session

Motor Carrier Claims for Negligent Entrustment, Hiring and Retention

D-1-GN Cause No. v. JUDICIAL DISTRICT

AC : ENGINEERING MALPRACTICE: AVOIDING LIABILITY THROUGH EDUCATION

STATE OF MICHIGAN COURT OF APPEALS

Second, you must not be influenced by sympathy, passion or prejudice in favor of any party or against any of the parties.

Fernandez v Ean Holdings, LLC 2014 NY Slip Op 33106(U) August 1, 2014 Supreme Court, Queens County Docket Number: 6907/12 Judge: Darrell L.

For Preview Only - Please Do Not Copy

v No Kent Circuit Court RANDY MERREN AUTO SALES, INC., doing LC No NO business as RANDY MERREN AUTO SALES OF IONIA,

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

IN THE CIRCUIT COURT OF SHELBY COUNTY, TENNESSEE FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS

Chapter II, Book III, Code Civil Of Intentional and Unintentional Wrongs

IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiffs, : Case No. 12CV1245. v. : Judge Berens

LAWATYOURFINGERTIPS JOSE VARGAS, B (Los Angeles County Super. Ct. No. BC459827) Plaintiff and Appellant, FMI, INC., et al.,

CONTRACTORS APPLICATION ALL INFORMATION MUST BE PRINTED CLEARLY

Transcription:

Know Thine Enemy: What is the plaintiff lawyer who is suing you thinking? Sun Tzu, The Art of War So it is said that if you know your enemies and know yourself, you will not be put at risk even in a hundred battles. If you only know yourself, but not your opponent, you may win or may lose. If you know neither yourself nor your enemy, you will always endanger yourself.

The Association of Plaintiff Interstate Trucking Lawyers of America is a national association of committed lawyers who have joined together to help eliminate unsafe and illegal interstate trucking practices. Our Mission Each member of this association has pledged to work aggressively within the law through learning, legislation and litigation to achieve our mission of dramatically reducing the number of traffic accidents, injuries and deaths across America that are caused by those trucking companies who are unsafe. Our association's members across America hope to bring about change by educating the general public, other lawyers, judges and juries about the hard facts surrounding common unsafe or illegal trucking practices and procedures in America today. These unsafe and illegal practices each year cause the deaths and injuries of thousands of innocent men, women and children on America's highways. What is the Lawyer Suing you Thinking? Try the Company, not the accident. In a particular claim, of course, the industry cannot be put on trial, but the involved trucking company can and should be. -- APITLA Member in Truck Accident Litigation, Third Edition

Overview of the Plaintiff Lawyers Playbook: 1. Try the Company, not the accident: Independent corporate liability: a. Negligent Hiring b. Negligent Retention c. Negligent Supervision d. Negligent Entrustment e. Negligent Training f. Negligent Maintenance 2. The trucking company s failure to train on, follow, or enforce a FMCSA regulation contributed to the accident. a. If the Safety rules in the FMCSRs had been followed, the accident could have been prevented ; or b. Management s acts and omissions pertaining to teaching and enforcing FMCSA regulations contributed to the accident. 3. Use the Company s FMCSA documents or lack of documents against it. a. 3 Buckets of documents: Driver; Training; Equipment How do you institute company policies and programs, with corresponding documentation, that counteract the Plaintiff lawyers playbook? What is the Lawyer Suing you Thinking? Try the Company, not the accident. In a particular claim, of course, the industry cannot be put on trial, but the involved trucking company can and should be. -- APITLA Member in Truck Accident Litigation, Third Edition

3 Company Buckets: Drivers, Training, and Equipment The driver negligently collided with my client ; and The trucking company is also independently negligent because Drivers Negligent Hiring: [T]he company knew, or should have known, the employee was unfit for the job so as to create a danger of harm to third persons. Negligent Retention / Supervision: [T]he employer became aware of, or should have become aware of, problems that indicated a lack of fitness for the position, the unfitness was likely to cause the sort of harm that occurred, and the employer failed to take action. Negligent Entrustment: The company knew or should have known that this driver presented a danger in a truck. One who supplies [a vehicle] for the use of another whom the supplier knows or has reason to know because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm is subject to liability for physical harm. (Restatement) Training Negligent Training: The company failed to conduct adequate training, and that lack of training contributed to this accident (or, had that training been conducted and followed, this accident could have been avoided) Maintenance Negligent Maintenance [E]very motor carrier shall systematically inspect, repair, and maintain... All motor vehicles subject to its control. Every motor carrier shall repair any defect or deficiency listed on the [DVIR] which would be likely to affect the safety or operation of the vehicle Therefore I allege that: The driver is negligent; and the Company is vicariously liable for the driver s acts and omissions; and The trucking company is also independently liable for acts and omissions of the company s managers for negligent hiring, retention, supervision, entrustment, training, or maintenance..

Negligence Per Se Negligence Per Se (1) violation of a regulation or statute; (2) plaintiff was a member of the group intended to be protected by the rule; (3) injury is of the kind the rule was designed to prevent; and (4) the violation of the statute or regulation was the cause of the injury. Negligence Per Se Plaintiff s Playbook Plaintiff s lawyer s plan to tell the jury: These safety rules exist to protect the motoring public. The trucking company is required to ensure that these regulations are complied with by the driver to protect the public. 49 CFR 390.3 (e); 49 CFR 390.11; Every employer shall be knowledgeable of and comply with all regulations. Every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations [I]t shall be the duty of the motor carrier to require observance of such duty or prohibition. The trucking company s acts and omissions pertaining to teaching and enforcing these regulations contributed to this accident.

3 Company Buckets: Drivers, Training, and Equipment Plaintiff Lawyer s Playbook on Independent Negligence Plaintiff Lawyer s plan to tell the jury: The driver negligently collided with my client ; and The trucking company is also independently negligent because The owners and/or managers of the trucking company knew or should have known that The driver was not qualified or was otherwise inadequate. The driver s training was inadequate. The equipment was inadequate. The trucking company s own documentation demonstrates its independent negligence or negligence per se: (1) The company has inadequate records as required by the FMCSRs ; or (2) The company has good records, but failed to teach and enforce the regulations. The owners and/or managers of the trucking company failed to do anything about it : Management failed to follow and enforce the FMCSRs in hiring and retaining drivers ; Management failed to conduct proper training on the FMCSRs or its own policies ; Management failed to adequately document driver hiring, retention, training, and equipment maintenance. Because of the trucking company s acts and omissions, you, the jury should conclude that The accident would not have happened if the company had done more to be safer ; Things the company did not do that are required by the FMCSA safety regulations contributed to this accident ; Company owners and officers placed profits over safety ; This is an unsafe trucking company that poses a danger to the public (and by inference, to you, the jury). How do you institute company policies and programs, with corresponding documentation, that prevents these arguments from presenting any serious risk to your company?