LAST IN LINE, FIRST TO DIE!
By:
Christian D. Searcy
Searcy Denney Scarola Barnhart & Shipley, P.A.
Post Office Box 3626
West Palm Beach, FL 33402-3626
561-686-6300
561-684-5707 (fax)
I. INTRODUCTION:
When you are the last vehicle in a long line of emergently stopped vehicles on an interstate or other large highway, even in broad daylight with no view obstruction, you are the first to die from an 18 wheeler crushing your stopped vehicle because its driver was impaired. It matters not whether the driver was impaired due to alcohol, drugs, fatigue, or preoccupation with onboard computer/communication devices, you are still dead! I have observed this unforgiveable phenomena occurring throughout my 40 years of law practice, but we have observed a dramatic increase in the number of such occurrences over the past 15 years. What, if anything, can be done to protect society from these outrageous occurrences? How can we best represent the victims of these outrageous occurrences?
II. UNSPEAKABLE TRAGEDY ON THE INCREASE:
Throughout my 40 year career, I have become aware of instances in which 18 wheelers rear-ended long lines of vehicles emergently stopped on a major highway in broad daylight with no view obstruction. Throughout my career on occasion, I have represented the victims of such occurrences. Up until the late 90’s, it seemed the cause was always a driver impaired by alcohol, drugs, or fatigue. From the late 90’s on, from my observation, it seems there has been more than a two-fold increase in this phenomena and that in many instances, the impairment of the driver is stemming from his attention to cellphones or onboard computer/communication devices. Studies have shown that when a driver is texting or reading maps, or getting directions, or information over a computer screen, the driver is more impaired than when legally intoxicated on alcohol or drugs. To have big rig trucks operating at highway speeds with drivers that are even more impaired than drunken ones, is a public hazard of a severe and reprehensible degree. I have not been able to find any type of industry wide concern or movement in attempting to address this matter by devices that will black out communication devices when trucks are in motion. Alternative strategies, if any, have been seemingly ineffective.
III. THE SOLUTION FOR SOCIETY AND OUR CLIENTS:
A. Totally preventable tragedy arising from driver distraction by today’s technology is a significant variation on an age old theme. In the transport of freight, each tractor-trailer is a profit unit and time is money. When the tractor-trailer isn’t hauling freight, the profit unit, is not as profitable. Trucking companies have a financial incentive to violate hours of service rules in order to make their profit units more profitable. Likewise, tractor-trailer units are more profitable if they can continue moving freight while the driver conducts his paperwork and communications over onboard devices. Both variations place impaired drivers behind the wheel.
B. What will change the behavior of the trucking industry? The trucking industry is very sensitive to and highly motivated by profit. It always has been and always will be. As long as it remains more profitable to violate hours of service rules and have drivers conduct their paperwork and business while hauling freight at high speeds, the totally preventable, disgusting phenomenon of crushing and burning innocent motorists stopped in positions of helpless peril will continue. Companies will cease chronic violation of hours of service and cease driver distraction by onboard devices, when the consequences of such behavior significantly outweigh the profit from them.
C. How can the behavior of chronically violating hours of sleep rules and encouraging communication through onboard devices while moving at high speeds, become unprofitable? Certainly not by fines levied by the Federal or State departments of transportation. Those fines are so minuscule in comparison to the damages caused and the profits to be realized, that they will never be a significant impediment to the trucking industry putting impaired drivers behind the wheel of big rig trucks. What can render such conduct on the part of the trucking industry to be unprofitable? Vibrant compensatory damages for their injured victims magnified by punitive damages in an amount equal to, or greater than, the ill-gotten gains realized by trucking companies encouraging unsafe practices for profit.
D. The larger the recovery for the victims of these senseless tragedies, the greater the deterrent for such behavior in the future on the part of the trucking industry. Historically, punitive damages have been the tools for social reform. Many states have legislated punitive damages to an ineffective level, or out of existence. In forums where punitive damages are allowed, they are an extremely effective tool in maximizing the amount it costs trucking companies to place an impaired driver behind the wheel. Having punitive damages as a viable issue during discovery in trial, broadens the scope of discovery, broadens the admissibility of evidence, and allows the trier of fact to recognize the righteous indignation society should feel regarding such behavior. Many times, the cases will settle before a jury has had the opportunity to render a verdict for punitive damages. However, when that occurs, the amount of settlement is usually many multiples of what it otherwise would have been, and practically speaking, the deterrent is therefore many multiples of what it would have been.
II. GETTING THE ISSUE OF PUNITIVE DAMAGES TO THE JURY
A. Where we are representing the relatives of a victim(s) who was last in line and first to die, but there is no positive blood alcohol or positive drug screen on the part of the truck driver, how do we get punitive damages to the jury? The truck driver will invariably have some lame excuse for why he did not see the line of stopped cars in front of him in broad daylight with no view obstruction blocking his vision. How do we get the court to realize this is a case of reckless disregard for human life and safety and not just negligence on the part of the driver who does not see the stopped cars?
B. The key is in getting the court to understand that the conduct is too flagrant to be explained by mere negligence. Once the court understands the circumstances of the collision cannot be explained by a non-impaired driver at the wheel, we need to get the court to understand that it is not the burden of the plaintiff to prove the cause of the driver’s impairment, but simply to prove the driver was impaired.
C. An example is worth a thousand words. The following example is a verbatim transcript of my argument before the trial court in Jacksonville, Florida, which resulted in the court allowing the issue of punitive damages to go to the jury:
Michael Wright, in the scope and course of employment with Tree of Life, Incorporated, drove a 2003 Freightliner tractor-trailer truck pulling a 1998 Great Dane trailer owned by Penske Truck Leasing under lease to Tree of Life, Incorporated on 11/11/06, at or about Interstate 95 south near the Dunn Street entrance to Interstate 95 south.
At that time and place, at or about 2:25 P.M., a line of traffic was stopped. The last car in that line of stopped cars was the car owned and operated by Vincent James Modica with his beloved wife of 41 years, Judy Ann Modica, in the passenger seat.
At that time and place, in broad daylight, with no view of obstruction, the large semi tractor-trailer operated by Michael Wright bore down upon the Modica’s stopped vehicle without reducing speed, sounding a warning, or applying brakes until a split second before the operator of the semi tractor-trailer struck the Modica vehicle, driving over and pushing it into the stopped tractor-trailer in front of it causing the Modica vehicle to burst into flames. Vincent and Judy Ann Modica were killed in that terrible fiery crash.
Those facts are beyond dispute and have been proven and will be proven, not only by clear and convincing evidence, but beyond a reasonable doubt.
Is that conduct sufficient to sustain a claim of punitive damages against Michael Wright and Tree of Life, Incorporated?
Let’s see what the Florida Supreme Court says about that:
I hand you the Supreme Court Case of Bould v. Touchette, 349 So. 2d 1181 (Fla. 1977), which governs, and ask the court to turn to Page 4 – 2nd column.
The Supreme Court discusses the facts of the case below on which it ultimately upheld the punitive damage verdict. “Shortly before noon on a clear day, they (the Simonsons) were forced to bring their vehicle to a stop at the end of a long line of traffic, as the road was under construction and traffic was being regulated by a flag man. The road was flat, straight and level more than a mile before the actual construction site…Without reducing speed, sounding a warning or applying brakes, the operator of the semi tractor-trailer truck struck the rear of the pick-up truck tossing it aside and continuing over the Simonsons vehicle and flattened it. The semi-trailer truck did not come to a stop until it had run through two other vehicles and collided with another large truck. The semi tractor-trailer truck was being operated by Touchette in the course and scope of his employment by Concrete Pipe.”
We could simply change Bould or Simonson into Modica and Touchette into Wright and we are talking about this case.
If you will turn to Page 8, you will see that the Florida Supreme Court quashed the Decision of the Fourth District Court of Appeals, which had reversed the jury’s punitive damage award, and remanded with instructions to enter the judgment in favor of plaintiffs.
It is the law of Florida that running into the back of a stopped car on the interstate in plain view, in broad daylight with no view obstructions, with plenty of time to stop, justifies punitive damages.
Why?
Well, because there are only two possible explanations for running down a stopped vehicle in broad daylight with no view obstruction and plenty of room to stop:
Either the driver did it intentionally because, unless he was impaired, he could not help but see it, and if he did it intentionally, he’s guilty of murder; or
He was so impaired he never recognized a long line of cars stopped ahead of him in broad daylight with no view obstruction with plenty of time to stop.
Driving while impaired and killing two people justifies punitive damages.
Our punitive damage case doesn’t turn on proving the cause of his impairment, albeit alcohol, drugs, some other substance, or fatigue, as long as we prove he was impaired; and the undeniable facts show that he was impaired (since the random encounter with two people he didn’t know is unlikely to be intentional murder).
Having facts and proof that this driver was unquestionably operating the tractor-trailer in an impaired condition, it is relevant, although not necessary to offer proof of cause of his impairment, and we have established very powerful proof that the cause of his impairment was fatigue.
One, The Traffic Homicide Report details the evidence of what happened in the crash.
Two, The documents provided in discovery by Tree of Life and Penske – attached to the Forrest Baker Depositions.
Three, Exhibit T 8-1 Driver’s Duty Log for 11/06 – The Payroll Log shows that Wright drove either 300 or 360 miles and made either 10 or 12 stops, but his duty logs for that day only show 3.5 hours of driving were reported for that 300-360 miles.
Four, Federal Safety Regulations 49 C.F.R. 395.3 referred to at Page 3 or Forrest Baker’s Affidavit sets forth that:
a. Driver may be on duty no more than 60 hours in 7 days, or 70 hours in 8 days.
b. A driver is never permitted to drive more than 11 hours a day.
c. A driver is never permitted to be on duty for more than 14 consecutive hours.
d. Once a driver has reached maximum hours for a day, he must go off duty 10 consecutive hours before he can go on duty again.
e. After taking off 34 consecutive hours, you restart the 60/70, or 70/80 hours in a week once again.
The chronic violation of the Federal Safety Regulations pertaining to hours of service is evidence that both Mr. Wright and his employer, Tree of Life, Incorporated, showed a conscious disregard for the Federal Safety Regulations designed to protect the public from fatigued drivers behind the wheel. The manipulation of the data from XATA automatic on-board recording device was under the control of Penske and could not have been done without their cooperation.
Accordingly, the court should find that the Plaintiffs have made an appropriate evidentiary showing and enter an order allowing us to amend to claim punitive damages.
D. What was the effect of punitive damages being allowed in the Modica case cited above? Prior to the court granting the Motion to Allow Punitive Damages, the largest offer had been $2 million. The tragedy involved the wrongful death of a 65 year-old and 63 year-old husband and wife, survived by their 39 year-old and 36 year-old sons. After several weeks of trial when plaintiff’s rested their case, the defendants paid $17.5 million in settlement. One of the terms of settlement the plaintiff’s insisted on was that the settlement not be kept confidential.
In every other last in line, first to die case where the courts have allowed the issue of punitive damages to go to the jury, there were similar dramatic increases in the ultimate settlement value of the case, and even larger cases; however, in all other cases, confidentiality agreements prevent the disclosure of the amounts of those settlements. Nevertheless, I have consistently found that recognizing and developing the issue of punitive damages in the last in the line, first to die cases, gets the court and the jury on the right track to appreciate the true outrage involved in the causative facts of the tragedy. That realization leads to the just and enormous enhancement of the compensatory damages and the potential for punitive damages in behavior-changing amounts.