IN THE CIRCUIT COURT FOR DAVISON COUNTY, TENNESSEE
AT NASHVILLE

AMENDED COMPLAINT

Pursuant to Rule 15 of the Tennessee Rules of Civil Procedure and the Agreed Order filed contemporaneously herewith regarding said amendment, the Plaintiffs, Kirk Barnes (“Mr. Barnes”) and Jean Barnes (“Mrs. Barnes”), as their amended cause of action against the Defendants, Overton Distributors, Inc. d/b/a Freshpoint (“Defendant Overton”), Defendant Timothy D. Ellis (“Defendant Ellis”), and Defendant Superior Driver Source, Inc. (“Defendant Superior”) (collectively referred to herein as “Defendants”), respectfully states as follows.

Jurisdiction

1.     This honorable Court has jurisdiction over this matter and the parties pursuant to Tenn. Code Ann. Secs. 20-2-214 and 20-4-101 et seq., the primary actions involved occurring within Davidson County, Tennessee, and all pertinent actors residing in the State of Tennessee upon information and belief.

Parties

2.     Plaintiff Kirk Barnes is married to Plaintiff Jean Barnes, and both are citizens the State of Tennessee with their primary residence address being 202 Madison Drive, La Vergne, Tennessee 37086.

3.     Upon information and belief, Defendant Overton is a Tennessee Corporation which operates commercial motor vehicles in Interstate commerce, U.S.D.O.T. No. 328780, having its principal place of business located at 1210 Heil Quaker Blvd., La Vergne, Tennessee 37086.    Upon further information and belief, Defendant Overton’s Registered Agent for service of process is Capitol Corporate Services, Inc., 1900 Church Street, Suite 400, Nashville, Tennessee 37203.

3-A.  Upon information and belief, Defendant Superior is a Tennessee Corporation which operates a commercial driver leasing business located at 216 Hartman Drive, Suite F, Lebanon, Tennessee 37087.  Upon further information and belief, Defendant Superior’s Registered Agent for service of process is Gina S. Colbert, 216 Hartman Drive, Suite F, Lebanon, Tennessee 37087.

4.     Upon further information and belief, Defendant Ellis is a citizen of the State of Tennessee with his primary residence address being 5821 Seven Points Trace, Hermitage, Tennessee 37076.

5.     At all times relevant hereto, Defendant Ellis was the employee of Defendant Overton, was acting within the course and scope of his employment with Defendant Overton, and was acting in furtherance of the business of Defendant Overton.

5-A.  At all times relevant hereto, Defendant Ellis was the employee of Defendant Superior, was acting within the course and scope of his employment with Defendant Superior, and was acting in furtherance of the business of Defendant Superior.

Relevant Facts

6.     On August 18, 2005 at approximately 4:45 p.m., Mr. Barnes was traveling East on Interstate 24 just outside Nashville, Tennessee in heavy rush hour traffic.

7.     At the same time on August 18, 2005, Defendant Ellis was also traveling East on Interstate 24.

8.     Mr. Barnes was driving his 2003 Ford Crown Victoria in the second lane from the concrete divider in the middle of Interstate 24 East.

9.     Defendant Ellis was driving a tractor trailer entrusted to him by Defendant Overton in the lane next to the concrete divider, immediately to Mr. Barnes’ left.

10.   Suddenly and without warning, the tractor trailer being driven by Defendant Ellis swerved into Mr. Barnes’ lane of travel and collided with the left rear quarter of Mr. Barnes’ car at approximately the 59.8 mile marker on Interstate 24 East.

11.   When the tractor trailer collided with the rear of Mr. Barnes’ car, the impact of the collision sent Mr. Barnes’ car spinning out of control, and caused Mr. Barnes’ to crash into the concrete divider in the middle of Interstate 24 East (the “Collision”).

12.  During the Collision, the airbag in Mr. Barnes’ car deployed, striking him violently about face, head and upper torso and causing Mr. Barnes to suffer tremendous pain and suffering.

13.  During the Collision, Mr. Barnes was thrown violently about his car and struck his head and face on the hard interior surfaces within the car, causing Mr. Barnes to suffer further tremendous pain and suffering.

14.  As a result of the Collision, Mr. Barnes’ car was totaled.

15.  Upon information and belief, the tractor trailer being driven by Defendant Ellis was a 2003 Freightliner, bearing Tennessee Licence plate 05114HY, and was leased by Defendant Overton in the ordinary course of its business, and was entrusted to Defendant Ellis by Defendant Overton in furtherance of that business. 

16.  Upon information and belief, the tractor trailer was being driven by Defendant Ellis in the H.O.V. lane.

17.  At all times relevant to this action and on August 18, 2005, Defendant Overton was allowing, permitting and/or authorizing Defendant Ellis to operate a commercial motor vehicle on behalf of Defendant Overton.

18.  As a direct and proximate result of the Collision, Mr. Barnes was seriously injured and was transported to Stonecrest Medical Center, where he received and will continue to receive major medical treatment for his injuries.

19.  As a direct and proximate result of the Collision, Mr. Barnes endured excruciating physical pain and suffering and suffered extreme mental anguish.

20.  As a direct and proximate result of the Collision, Mr. Barnes will continue to endure tremendous pain and suffering and will continue to suffer extreme mental anguish into the foreseeable future.

21.  As a direct and proximate result of the Collision, Mr. Barnes incurred substantial medical and related expenses and will continue to incur substantial medical and related expenses into the foreseeable future.

22.  As a direct and proximate result of the Collision, Mr. Barnes suffered a diminution and loss of his capacity to enjoy life and will continue to suffer a diminution and loss of his capacity to enjoy life into the foreseeable future.

23.  As a direct and proximate result of the Collision, Mr. Barnes suffered a loss of income and loss of employment opportunities and he will continue to suffer a loss of income and loss of employment opportunities into the foreseeable future.

24.  Mr. Barnes is advised, informed and verily believes that the injuries he received as a direct and proximate result of the Collision are permanent, and that he will continue to endure the effects of the injuries for the remainder of his life.

25.  As a direct and proximate result of the Collision, Mrs. Barnes suffered a loss of the care, companionship, society and marital relations of her husband Mr. Barnes and upon information and belief, Mrs. Barnes will continue to suffer said losses into the foreseeable future.

Causes of Action

Count One - Negligence

26.  Mr. Barnes hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.

27.  Mr. Barnes alleges that Defendants’ acts of negligence include the following:

(A)   failing to keep a proper lookout ahead.
(B)   failing to keep the tractor-trailer under control.
(C)   traveling too fast for the relevant conditions.
(D)   failure to assess the relevant circumstances before changing lanes on a
       controlled-access highway during rush hour traffic.

Count Two - Negligence Per Se

28.  Mr. Barnes hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.

29.  Mr. Barnes alleges that Defendants’ acts of negligence per se include the
following:

(A)   violation of Tenn. Code Ann. Sec. 55-8-117 regarding overtaking a vehicle on the left;
(B)   violation of Tenn. Code Ann. Sec. 55-8-123 regarding changing lanes;
(C)   violation of Tenn. Code Ann. Sec. 55-8-188 regarding use of H.O.V. lanes.

Count Three - Reckless Driving

30.  Mr. Barnes hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.

31.  Mr. Barnes alleges that Defendants’ driving a tractor-trailer in the HOV lane during rush hour traffic, under all relevant circumstances, showed a conscious disregard for the safety and well-being of the general public and that such conduct constitutes reckless driving under Tennessee law.

Count Four - Negligent Hiring

32.  Mr. Barnes hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.

33.  Defendant Overton and/or Defendant Superior owed a duty to the general public with whom its drivers share the highway to exercise due care in the hiring of its drivers.

34.  Mr. Barnes alleges that Defendant Overton and/or Defendant Superior failed to exercise due care in the hiring of Defendant Ellis as one of its drivers.

Count Five - Negligent Training and/or Supervision

35.  Mr. Barnes hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.

36.  Defendant Overton and/or Defendant Superior owed a duty to the general public with whom its drivers share the highway to exercise due care in the training and/or supervision of its drivers.

37.  Mr. Barnes alleges that Defendant and/or Defendant Superior failed to exercise due care in the training and/or supervision of Defendant Ellis with regard to operation of the tractor-trailer involved in the Collision.

Count Six - Loss of Consortium

38.  Mrs. Barnes hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
39.  Mrs. Barnes alleges that the conduct of Defendants has caused her to suffer the loss of consortium of her husband Mr. Barnes and will cause her to suffer the loss of consortium of her husband in the future.

Count Seven - Reckless Supervision/Entrustment

40.  Mr. Barnes hereby incorporates all of the foregoing paragraphs stated hereinabove as fully as if set forth herein verbatim.
 
41.  Defendant Overton and/or Defendant Superior owed a duty to the general public with whom its drivers shared the highway to exercise due care to insure that its drivers maintained accurate and proper log books of their hours of service, and to further insure that its drivers did not violate the hours of service regulations prescribed by the Federal Motor Carrier Safety Regulations.

42.  Mr. Barnes alleges that Defendant Overton and/or Defendant Superior were aware of, but consciously disregarded, a substantial risk of injury to the general motoring public in permitting, allowing and/or disregarding its drivers’ failing to maintain accurate and proper log books of their hours of service, and in further permitting, allowing and/or disregarding its drivers’ violating the hours of service regulations prescribed by the Federal Motor Carrier Safety Regulations.

Causation

40. Mr. Barnes and Mrs. Barnes allege that the negligent and/or reckless conduct on the part of Defendants was a proximate cause of their injuries, losses and damages.

Vicarious Liability

41.  Mr. Barnes alleges that Defendant Overton and/or Defendant Superior, as the employer of Defendant Ellis, is legally responsible for the negligent and reckless acts of Defendant Ellis.

42.  Mr. Barnes further alleges that under Tennessee law, all of the acts of Defendant Ellis, whether negligent, reckless, intentional, willful and/or knowing acts, are considered to be the acts of Defendant Overton and/or Defendant Superior.

Requested Relief

The Plaintiffs, Kirk Barnes and Jean Barnes, respectfully request the following relief: 

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing document has been served via first class mail, postage prepaid, upon the following individual(s) in addition to the service copy to be served upon Defendant Superior, this ___ day of January, 2006.

1. Warren M. Smith, Esq.
   Smith and Tompkins
   214 Second Avenue North, Suite 2
   Nashville, Tennessee 37201
   Counsel of Record for Defendants Overton and Ellis

____________________________________
Larry Hayes, Jr.