Motor Carrier Claims for Negligent Entrustment, Hiring...

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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

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, AUGUST 16, 2017

J. Kent Emison, Partner, Langdon & Emison, Kansas City, Mo.

Patrick E. Foppe, Esq., Lashly & Baer, St. Louis

Matthew Wright, Founder, Wright Law, Franklin, Tenn.

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 64067 North Kansas City, MO 64116

110 E. Lockwood Suite 150 55 W. Monroe Suite 3700

St. Louis, MO 63119 Chicago, IL 60603

800-397-4910

LangdonEmison.com

IN THE UNITED STATES DISTRICT COURTWESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

TERI REAGAN, Individually and as PersonalRepresentative of the Estate of Roger Reagan;and MAVERICK TRANSPORTATION, LLC. PLAINTIFFS

v. Case No. 3:10-CV-03016

DUNAWAY TIMBER COMPANY; MORGANQUISENBERRY; JOHN DOE TRUCKING; DEFENDANTS!and JOHN DOE INCORPORATED 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 Instruction13. Measure of Damages - Wrongful Death - Cause of Action (AMI 2216)14. Effect of Instruction as to Damages (OG&L 106.02 Revised)15. Judge’s Opinion (8th Cir. 3.02)16. All Persons Equal Before the Law - Organizations (OG&L 103.12 Revised)17. Credibility of Witnesses (8th Cir. 3.03)18. Expert Witnesses (AMI 107)19. Burden of Proof (8th Cir. 3.04 and AMI 202, modified)20. Election of Foreperson; Duty to Deliberate; Communications with Court; Cautionary;

Unanimous Verdict; Verdict Form (8th Cir. 3.06)

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.

FINAL INSTRUCTION NO.2

FAULT - DEFINITION

When I use the word “fault” in these instructions, I mean negligence.


NEGLIGENCE - DEFINITION

When I use the word “negligence” in these instructions, I mean the failure to do

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.


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.


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.


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.


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.

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.


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: 27-51-104. 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: 27-51-301. 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.


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.


VIOLATION OF REGULATION AS EVIDENCE OF NEGLIGENCE

There were in force as a matter of federal law at the time of the occurrence the following

Federal Motor Carrier Safety Regulations:

First: 49 C.F.R. §383.113. Required skill.

(a) Basic vehicle control skills. All applicants for a CDL must possess and demonstrate basic

motor vehicle control skills for each vehicle group which the driver operates or expects to

operate. These skills should include the ability to start, to stop, and to move the vehicle

forward and backward in a safe manner.

(b) Safe driving skills. All applicants for a CDL must possess and demonstrate the safe

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.

Second: 49 C.F.R. § 392.14 Hazardous conditions; extreme caution.

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

not be resumed until the commercial motor vehicle can be safely operated.

Third: 49 C.F.R. § 395.3. 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. § 395.8. 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 § 395.15, 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. § 391.21 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.

(b) The application for employment shall be made on a form furnished by the motor carrier.

Each application form must be completed by the applicant, must be signed by himlher, and

must contain the following information:

(7) A list of all motor vehicle accidents in which the applicant was involved during

the 3 years preceding the date the application is submitted, specif4ng the date and

nature of each accident and any fatalities or personal injuries it caused;

(9) A statement setting forth in detail the facts and circumstances of any denial,

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;

(12) The following certification and signature line, which must appear at the end of

the application form and be signed by the applicant: This certifies that this

application was completed by me, and that all entries on it and information in it are

true and complete to the best of my knowledge. (Date) (Applicant’s signature)

(c) A motor carrier may require an applicant to provide information in addition to the

information required by paragraph (b) of this section on the application form.

Sixth: 49 C.F.R. § 390.11. 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. § 390.3 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 § 383.5 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.

Eighth: 49 C.F.R. § 391.1. 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 ofone or more of these regulations, although not necessarily negligence, is evidence

ofnegligence to be considered by you along with all of the other facts and circumstances in the case.


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.


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;

(e) what instruction, moral training, and supervision of education Roger Reagan might have

reasonably given his children had he lived;

(f) Roger Reagan’s health;

(g) Roger Reagan’s habits of industry, sobriety, and thrift;

(h) Roger Reagan’s occupation;

(1) the life expectancy of Roger Reagan and of Ten Reagan (spouse of Roger Reagan) and

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.

Third, let me explain what is meant by the term “consortium.” Consortium refers to the

society, services, companionship, and marriage relationship of the husband.

The administrator is also suing for the following elements ofdamage on behalf of the estate:

(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;

(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

to his death.

If an interrogatory requires you to assess the damages of the administrator, you must

fix the amount of money that will reasonably and fairly compensate Ten Reagan (spouse of Roger

Reagan) and Brandie Reagan and Corey Boothby, and the Estate ofRoger Reagan for those elements

of damage you find were proximately caused by the negligence or fault of the defendants.

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.

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.


JUDGE’S OPINION

Neither in these instructions nor in any ruling, action or remark that I have made during the

course of this trial have I intended to give any opinion or suggestion as to what your verdict should

be.

During this trial I have occasionally asked questions of witnesses. Do not assume that because

I asked questions I hold any opinion on the matters to which my questions related.

What the verdict shall be is the sole and exclusive duty and responsibility of the jury.


ALL PERSONS EQUAL BEFORE THE LAW - ORGANIZATIONS

This case should be considered and decided by you as an action between persons of equal

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.

All persons. including organizations and corporations. stand equal before the law and are to be

dealt with as equals in a court of justice.


CREDIBILITY OF WITNESSES

In deciding what the facts are, you may have to decide what testimony you believe and what

testimony you do not believe. You may believe all of what a witness said, or only part of it, or none

of it.

In deciding what testimony to believe, you may consider a witness’ intelligence, the opportunity

a witness had to see or hear the things testified about, a witness’ memory, any motives a witness may

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

to which the testimony is consistent with any evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see

things differently and sometimes forget things. You need to consider therefore whether a

contradiction is an innocent misrecollection or lapse ofmemory or an intentional falsehood, and that

may depend on whether it has to do with an important fact or only a small detail.


EXPERT WITNESSES

An expert witness is a person who has special knowledge, skill, experience, training, or education

on the subject to which his/her testimony relates.

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 are not bound to accept an expert opinion as conclusive, but should give it whatever weight

you thinlc it should have. You may disregard any opinion testimony if you find it to be unreasonable.


BURDEN OF PROOF

A party who has the burden of proof on a proposition must establish it by a preponderance of the

evidence, unless the proposition is so established by other proof in the case or unless a different standard

ofproof is required by another instruction. “Preponderance ofthe evidence” means the greater weight of

the evidence. The greater weight of the evidence is not necessarily established by the greater number of

witnesses testifying to any fact or state offacts. It is the evidence, which, when weighed with that opposed

to it, has more convincing force and is more probably true and accurate.

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,

you must fmd that it is more likely true than not true. It is determined by considering all of the evidence

and deciding which evidence is more believable. If, upon any issue in the case, the evidence appears to

be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that

question against the party who has the burden of proving it.

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

out of your minds.


ELECTION OF FOREPERSON; DUTY TO DELIBERATE; COMMUNICATIONS

WITH COURT; CAUTIONARY; UNANIMOUS VERDICT; VERDICT FORM

In conducting your deliberations and returning your verdict, there are certain rules you must

follow.

First, when you go to the jury room, you must select one of your members as your foreperson.

That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You

should try to reach agreement if you can do so without violence to individual judgment, because a

verdict must be unanimous.

Each of you must make your own conscientious decision, but only after you have considered all

the evidence, discussed it fully with your fellowjurors, and listened to the views of your fellow

jurors.

Do not be afraid to change your opinions if the discussion persuades you that you should. But do

not come to a decision simply because other jurors think it is right, or simply to reach a verdict.

Remember at all times that you are not partisans. You are judges -judges of the facts. Your sole

interest is to seek the truth from the evidence in the case.

Third, if you need to communicate with me during your deliberations, you may send a note to me

through the Courtroom Security Ofticer, signed by one or more jurors. I will respond as soon as

possible either in writing or orally in open court. Remember that you should not tell anyone -

including me - how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I have given to

you in my instructions. The verdict must be unanimous. Nothing I have said or done is intended to

suggest what your verdict should be - that is entirely for you to decide.

Finally, this case is being submitted to you on interrogatories. You are to consider each

interrogatory as a separate verdict. You will take the interrogatories to the j ui-v room and, when you

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 unanimously agree, and then inform the Courtroom Security Officer that you are ready to return

to the courtroom with the answers to the interrogatories.

IN THE UNITED STATES DISTRICT COI)T&TWESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

TERI REAGAN, Individually and as PersonalRepresentative of the Estate of Roger Reagan;and MAVERICK TRANSPORTATION, LLC. PLAINTIFFS

v. Case No. 3:lO-CV-03016

DUNAWAY TIMBER COMPANY; MORGANQUISENBERRY; JOHN DOE TRUCKING; DEFENDANTS!

and JOHN DOE INCORPORATED THIRD-PARTY PLAINTIFFS

v.

BARRY MCCOY THIRD-PARTY DEFENDANT

VEIUMCI’ FORM (TWO PAGES)

Interrogatory 1: Do you find from a preponderance of the evidence that there was negligence

upon the part of Dunaway Timber Company which was a proximate cause of any damages resulting

from this accident?

Yes or No Foreperson Date

Interrogatory 2: Do you find from a preponderance of the evidence that there was negligence

upon the part of Morgan Quisenberry which was a proximate cause of any damages resulting from

this accident?


Interrogatory 3: Do you find from a preponderance of the evidence that There was negligence

4.Ifyou answered more than one ofInterrogatories] through 3 “Yes, “then answer Interrogatory

Interrogatory 4: Using 100% to represent the total responsibility for the occurrence and any

injuries or damages resulting from it, apportion the responsibility between the parties whom you have

found to be responsible.

Dunaway Timber Company

Morgan Quisenberry

Barn McCoy

TOTAL 100%

Ted Reagan

Brandie Reagan

Corey Boothby

Estate of Roger Reagan, Deceased

S

$

$

S

upon the part of Barry McCoy which was a proximate cause of any damages resulting from this

accident?


Interrogatory 5: State the amount of any damages which you find from a preponderance of the

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

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

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.

August 7, 2008

Quisenberry applies for Dunaway job

August 13, 2008

Dunaway hires Quisenberry

September 3, 2008

Collision that kills Roger ReaganMorgan Quisenberry

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

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.

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.

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.

A Recipe for Disaster

• Two License Revocations

• Prior Accidents: one involving hazardous materials

• Inadequate Training

• Inadequate Experience

• No Monitoring

• Hours of Service Violations

1. 14 hour rule: 6 hours over

2. 11 hour role: 2.5 hour over

The Crash

Dunaway Timber Should Have Prevented This Tragedy

INSTRUCTIONS

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.

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.

Burden of Proof - Defined

• Preponderance of the evidence

- Greater weight of the evidence

Proximate Cause

• A cause which, in a natural and continuance sequence, produces damages.

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.

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

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.”

Federal Safety Rules

383.113 Basic Skills

– Ability to position the semi truck before a turn to prevent off-tracking.

392.14 Hazardous Conditions require extreme caution

395.3 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.

Federal Safety Rules

391.21 Employment Application

– Must be truthfully completed

– Employer must verify

390.11 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 anyone or more of these regulations is evidence of negligence.

Trucking: Tractor Trailer Driver Handbook/Workbook

(3rd Edition)—pg. 122-23Highway Curves

To take a left curve, keep thetractor as close to the outer(right) edge of the lane aspossible, to prevent the trailerfrom running over the center line.

Exhibit 27

Plaintiffs are asserting NO claims against Barry McCoy

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.

Barry McCoy

Lynne Wilborn

Sandra Stith

Donald Stith

Jeff Copeland

MorganQuisenberry

Dunaway Timber

Dr. Z

Phil Smith

Common Sense

Laws of Physics

Steve Jackson

Scientific Analysis

Math

Trooper Evans

Eyeballing Science

DAMAGES

MEASURE OF DAMAGES

Pecuniary Injuries Sustained by• Teri • Corey • BrandieMental Anguish• Teri • Corey • BrandieLoss of Consortium• Teri Damages to Estate of Roger Reagan• Roger’s Loss of Life• Roger’s Conscious Pain and Suffering

Pulled to Safety Zone

6:57

Ambulance Departs

7:19

Accident

6:37

20 minutes

Roger’s Pain and Suffering

22 minutes 30 minutes

Roger Codes

7:49

Roger Had Approximately 72 Minutesof Pain and Suffering

Verdict Form

Motor Carrier Claims for Negligent Entrustment, Hiring...

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