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PEGGY SMITH and Plaintiff, Plaintiff, | ) |
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Plaintiffs Peggy and Rick Smith respectfully submit this Memorandum in support of their Response to the Motion for Partial Summary Judgment filed by the Defendants, Alfred Wedlake (“Defendant Wedlake”) and KDK Transport d/b/a R&R Express (collectively “Defendants”).
Defendant Wedlake himself has created genuine issues of material fact by offering under oath two completely different versions of same events in this case. Taking all evidence in a light most favorable to Plaintiffs, reasonable minds may differ as to whether Defendant Wedlake’s behavior was reckless conduct which should be deterred in the future. This Court should allow the issue of punitive damages to be resolved by the jury and should therefore deny Defendants’ Motion for Partial Summary Judgment.
On October 19, 1999, Defendant Wedlake, driving a tractor trailer weighing in at 37 tons and traveling 50 miles per hour, slammed into a group of motorists stuck in rush hour traffic. The resulting collision broke Peggy Smith’s spine in two places and rendered her unconscious. In addition to compensatory damages, Peggy Smith requests punitive damages against Defendants and makes the following two allegations to support her request for same:
The Collision
Defendant Wedlake testified that the accident scene was straight, flat, dry and daylight. (Wedlake Deposition, p. 98 at Appendix 14) Ms. Brenda Steinbrecher testified that after coming to a stop in the rush hour traffic, she looked in her rearview mirror and saw Defendant Wedlake cresting the hill and coming at her in her lane. (Steinbrecher Affidavit, para. 4 at Appendix 16; Accident Photo at Appendix 5) According to Ms. Steinbrecher, Defendant Wedlake was not attempting to change lanes at the time of the accident. (Steinbrecher Affidavit, para. 6 at Appendix 16) Ms. Steinbrecher testified that Defendant Wedlake appeared to be traveling “at an extremely high rate of speed” and that he did not appear to take any evasive action prior to slamming into her. (Steinbrecher Affidavit, para. 4 and 7 at Appendix 16) Additionally, Ms. Steninbrecher testified that she expected to hear, but failed to hear, the screeching of tires from the tractor trailer just before impact. (Steinbrecher Affidavit, para. 8 at Appendix 16)
There were no skid marks behind Defendant Wedlake’s tractor trailer at the accident scene. (Wedlake Deposition, p. 120 at Appendix 14; Accident Photo at Appendix 6; Steinbrecher Affidavit, para. 8 at Appendix 16) A lack of skid marks indicates that either: (1) Defendant Wedlake’s brakes were so far out of adjustment that they could not lock up his tires (Daniels Affidavit, para 4-9 at Appendix 18), or (2) Defendant Wedlake never hit his brakes before slamming into the stopped traffic. (Lott Affidavit, para 4-5 at Appendix 19) Defendant Wedlake testified that he was traveling about 50 miles per hour just before impact. (Wedlake Answer to Interrogatory No. 13 at Appendix 11)
Defendant Wedlake’s Brakes
Officer Greg Tramel, with the Tennessee Commercial Vehicle Enforcement, inspected Defendant Wedlake’s tractor trailer at the accident scene and discovered that five out of the ten brakes on Defendant Wedlake’s tractor trailer were out of adjustment. (Tramel Deposition, pp. 12; 16 at Appendix 15) Officer Tramel testified in his deposition that if a tractor trailer has 20% of its brakes out of adjustment, federal regulations mandate that the vehicle is in such a dangerous condition that the vehicle must be stopped immediately and repaired before being allowed to proceed. (Tramel Deposition, p. 18 at Appendix 15)
Defendants’ expert witness, Dr. Ronald Cox, concedes that Defendant Wedlake’s brakes were out of adjustment. (Cox Affidavit, para. 4) Dr. Cox further concedes that Defendant Wedlake’s braking power was reduced because his brakes were out of adjustment. (Cox Affidavit, para. 4) As stated by Plaintiffs’ expert, Ronnie Daniels, when dealing with 37 tons traveling at 50 miles per hour, any reduction in braking power is significant. (Daniels Affidavit, para 10 at Appendix 18)
The Inspection Station
Defendant Wedlake’s purpose is making this trip was to take 43,000 pounds of steel from Wheeling-Nisshin Steel Company in Follensbee, West Virginia to Oneal Steel Company in Birmingham, Alabama. (Cronin Stipulation, Exhibit B at Appendix 21) Defendant Wedlake testified that his load of steel was due in Birmingham, Alabama by 3:00 p.m. CST on the day of the accident, October 19, 1999. (Wedlake Deposition, p. 27-28 at Appendix 14)
Defendant Wedlake lives in Steubenville, Ohio, which is only a few miles from the Wheeling-Nisshin plant. (Wedlake Affidavit, para. 7) On October 18, 1999, Defendant Wedlake traveled by Interstate from the Follensbee/Steubenville area to LebanonJunction, Kentucky, a distance of approximately 366 miles. (Wedlake Affidavit, para 4; Wedlake Deposition, pp. 17-19 at Appendix 14) Lebanon Junction, Kentucky is a small town just off Interstate 65 in the middle of Kentucky. (Map of Route Driven, Wedlake Deposition Exhibit 3 at Appendix 3; Wedlake Deposition, p. 66 at Appendix 14). Upon leaving Lebanon Junction, Kentucky, Defendant Wedlake began heading South on Interstate 65 toward Birmingham. (Wedlake Deposition, p. 19 at Appendix 14)
There is a truck inspection station at the Kentucky/Tennessee Line on Interstate 65 South and Defendant Wedlake admits that he knew it was there. (Wedlake Deposition, p. 66 at Appendix 14) Defendant Wedlake also admits that the truck inspection station at the Kentucky/Tennessee Line will inspect a tractor trailer’s brakes. (Wedlake Deposition, p. 68 at Appendix 14)
After traveling approximately 52 miles down Intersate 65, Defendant Wedlake exited the Interstate at Cave City, Kentucky, Exit 53, and came into Tennessee on Highway 31. (Wedlake Answer to Interrogatory No. 15 at Appendix 12) Defendant Wedlake’s deposition was taken on July 27, 2001. Defendant Wedlake denied that he bypassed the inspection station; however, the only reason offered as to why he exited Interstate 65 and came into Tennessee via Highway 31 was that he always traveled that route when he came into Tennessee. (Wedlake Deposition, p. 61 at Appendix 14) Defendant Wedlake testified that he has traveled that route at least once per week for the last fifteen years, a total of over 780 separate occasions, and that he exited Interstate 65 at Cave City and came into Tennessee via Highway 31 every time. (Wedlake Deposition, p. 62 at Appendix 14).
When questioned about the entry route into Tennessee that he drove with such frequency, Defendant Wedlake could not remember the names of the towns through which he has traveled more than 780 times. (Wedlake Deposition, pp. 19-20; 61; 64 at Appendix 14) Defendant Wedlake could not remember the name of the city at which Exit 53 is located, which is Cave City. (Wedlake Deposition, p. 61 at Appendix 14). In his deposition, Defendant Wedlake referred to the city of Gallatin, Tennessee first as “Scottlyn”, then referred to it as “Cotlin”. (Wedlake Deposition, pp. 63-64 at Appendix 14) He referred to the city of Westmorland, Tennessee as “Morehead”. (Wedlake Deposition, p. 19 at Appendix 14) Although Defendant Wedlake testified that he stopped at the same truck stop in Westmorland, Tennessee every week for the last fifteen years, he could not recall its name. (Wedlake Deposition, p. 128 at Appendix 14) Defendant Wedlake could not remember the name of the waitress at the truck stop in Westmorland where he has stopped over 780 times. (Wedlake Deposition, p. 24 at Appendix 14)
One half of the route that Defendant Wedlake traveled on Highway 31 into Tennessee is a two lane undivided road. (Wedlake Deposition, p. 65 at Appendix 14) The route that Defendant Wedlake took into Tennessee passes through the small towns of Cave City, Glasgow, Pritchardsville, Haywood and Petroleum in Kentucky and through the small towns of Westmorland, Bethpage and Gallatin in Tennessee. (Map of Route Driven, Wedlake Deposition Exhibit 3 at Appendix 3) The average speed limit on Highway 31 is 50 to 55 miles per hour and Defendant Wedlake encountered some stretches in which the speed limit dropped to only 35 to 45 miles per hour. (Wedlake Deposition, p. 64 at Appendix 14) While traveling on Highway 31, Defendant Wedlake encountered over twenty stop lights. (Wedlake Deposition, p. 63 at Appendix 14)
After stopping at a small truck stop in Westmorland, Tennessee, Defendant Wedlake passed through Gallatin, Tennessee, proceeded down Vietnam Veterans Highway and returned to Interstate 65 approximately 10 miles north of Nashville and 25 miles South of the State line. (Map of Route Driven, Wedlake Deposition Exhibit 3 at Appendix 14).
Officer Greg Tramel testified that while on Highway 31, Defendant Wedlake would have encountered several steep grades (Tramel Deposition, p. 27 at Appendix 15), and that the only reason Defendant Wedlake was on Highway 31 was to avoid the inspection station. (Tramel Deposition, p. 29 at Appendix 15) Officer Tramel testified that Defendant Wedlake had no business being on Highway 31 and that Defendant Wedlake should have been on Interstate 65 South. (Tramel Deposition, p. 29 at Appendix 15) Officer Tramel testified that he asked Defendant Wedlake at the accident scene why he had come into Tennessee via Highway 31, but that Defendant Wedlake had no comment. (Tramel Deposition, p. 28 at Appendix 15)
Defendant Wedlake’s Hours
In his deposition on July 27, 2001, Defendant Wedlake testified three separate times that his trip originated on Friday, October 15, 1999, that he drove from Follensbee, West Virginia to Columbus, Ohio, arriving around midnight on Friday, October 15, 1999, that he spent Friday, Saturday, and Sunday, October 15, 16 and 17, 1999 in Columbus, Ohio visiting his brother in law, Jim McManus, that he left Columbus, Ohio late in the day on Monday, October 18, 1999, and that he arrived in Lebanon Junction, Kentucky around Midnight, October 18, 1999. (Wedlake Deposition, pp. 16-18; 70-74; 85-89 at Appendix 14) In his deposition, Defendant Wedlake was certain that he began this trip on a Friday, testifying as follows:
Q: When did you leave Follensbee, West Virginia?
A. Well, it was on a Friday, I know that.
Q. Friday?
A. Yeah.
(Wedlake Deposition, p. 70 at Appendix 14) (emphasis added)
In his deposition on July 27, 2001, Defendant Wedlake recalled very specific details about his travels two years earlier: he recalled that he had inspected his tractor trailer at the beginning of his trip and that everything was fine (Wedlake Deposition, p. 58 at Appendix 14); he recalled that he had inspected his tractor trailer in Columbus, Ohio and noticed that one of his marker lights was out, and even stated that he had attempted to fix it (Wedlake Deposition, p. 102 at Appendix 14); he recalled that he noticed that he was leaking oil when he inspected his tractor trailer in Columbus, Ohio (Wedlake Depositon, p. 103 at Appendix 14); and he even recalled that he drank a Pepsi at the truck stop in Westmorland, Tennessee on October 19, 1999. (Wedlake Deposition, p. 24 at Appendix 14).
On August 8, 2001, counsel for Plaintiff issued subpoenas to the Wheeling-Nisshin Steel Company to produce evidence of when Defendant Wedlake picked up his load of steel. (Pendleton Stipulation, para 6 at Appendix 20) The records produced by Wheeling-Nisshin indicated that Defendant Wedlake picked up his load of steel in Follensbee, West Virginia at almost Midnight on Sunday, October 17, 1999. (Pendleton Stipulation at Appendix 20; Cronin Stipulation at Appendix 21)
At the time he testified in his deposition on July 27, 2001, Defendant Wedlake had in his possession two fuel receipts which were produced by him during discovery. (Wedlake Response to Request for Production of Documents No. 15 at Appendix 13) The first receipt indicates that Defendant Wedlake obtained fuel at the Flying J Travel Plaza in Millersport, Ohio on October 18, 1999 and that he paid cash. (Wedlake Deposition Exhibit 4 at Appendix 7) The second receipt indicates that Defendant Wedlake obtained fuel at the Davis Brothers Travel Plaza in Lebanon Junction, Kentucky on October 19, 1999, again paying cash. (Wedlake Deposition Exhibit 5 at Appendix 8)
On September 5, 2001, counsel for Plaintiffs issued a subpoena to Flying J, Inc. in Ogden, Utah. (Richards Stipulation, para 8 at Appendix 22) On September 14, 2001, counsel issued a subpoena to EFS in Memphis, Tennessee. (Subpoena at Appendix 10) The information obtained from Flying J and EFS establish that Defendant Wedlake obtained the fuel in Millersport, Ohio between 2:51 p.m. EST and 3:54 p.m. EST on October 18, 1999. (Richards Stipulation at Appendix 22; Kraft Stipulation at Appendix 23)
Living only a few miles from the Wheeling-Nisshin plant, Defendant Wedlake often picks up a load of steel in Follensbee, West Virginia and returns home with it to Steubenville, Ohio, where he remains for a period of time before beginning his trip. (Wedlake Affidavit, para. 7)
It is approximately 136 miles from the Steubenville/Follensbee area to Millersport, Ohio and it would have taken Defendant Wedlake approximately 2.50 hours to travel this distance. (Wedlake Affidavit, para. 4; Dillard Affidavit, para. 7 at Appendix 17)
In his deposition on July 27, 2001, Defendant Wedlake testified that he began this trip in the Follensbee/Steubenville area and that he left after lunch. (Wedlake Deposition, pp. 15-17 at Appendix 14) If Defendant Wedlake began his trip in the Follensbee/Steubenville area and was in Millersport, Ohio at 3:30 p.m. EST on October 18, 1999, he would have left the Follensbee/Steubenville area at approximately 1:00 p.m. EST. (Dillard Affidavit, para. 8 at Appendix 17). Defendant Wedlake was “on duty”, as that term is defined by FMCSR Part 395.3, as of 1:00 p.m. EST on October 18, 1999. (Dillard Affidavit, para. 8 at Appendix 17)
The accident at issue occurred at approximately 6:30 a.m. CST on October 19, 1999. (Accident Report at Appendix 1) There are 18.50 hours between 1:00 p.m. EST on October 18, 1999 and 6:30 a.m. CST on October 19, 1999. (Dillard Affidavit, para 9 at Appendix 17) According to Defendant Wedlake, he was somewhere close to Exit 53 on Interstate 65 South at 3:00 a.m. CST on October 19, 1999. (Wedlake Deposition, p. 76 at Appendix 14)
Defendant Wedlake testified that he obtained, at the most, 1.50 hours of off-duty time in Lebanon Junction, Kentucky within the 18.50 hours prior to this accident. (Wedlake Deposition, p. 74 at Appendix 14) The 1.50 hours allegedly obtained by Defendant Wedlake in Lebanon Junction, Kentucky was not adequate to meet the minimum eight consecutive hours off duty as required by FMCSR Part 395.3, and the 1.50 hours is considered “on duty” time pursuant to the provisions of FMCSR Part 395.3. (Dillard Affidavit, para 10 at Appendix 17)
On the trip in question, Defendant Wedlake would have been at the maximum on duty time allowed by FMCSR Part 395.3 at approximately 4:00 a.m. EST on October 19, 1999, which was 3.50 hours prior to the accident in question. (Dillard Affidavit, para 11 at Appendix 17) At the time of the accident on October 19, 1999, Defendant Wedlake had been on duty for more than 18.00 hours, which is 3.50 hours beyond the maximum on duty hours allowed by FMCSR Part 395.3. (Dillard Affidavit, para. 14 and 15 at Appendix 17)
According to Officer Greg Tramel, the Tennessee Commercial Vehicle Enforcement officer who investigated the accident, Defendant Wedlake falsified his log books for Monday, October 18, 1999. (Tramel Deposition, pp. 10; 24 at Appendix 15; Wedlake Deposition Exhibit 7 at Appendix 14) Officer Tramel testified that he inspected Defendant Wedlake’s log books at the scene of the accident on the morning of October 19, 1999. (Tramel Deposition, p. 24 at Appendix 15) Officer Tramel testified that Defendant Wedlake had written in his log books that he was in his sleeper birth at 8:00 p.m. on October 18, 1999 in Westmorland, Tennessee. (Tramel Deposition, pp. 25-26 at Appendix 15) Officer Tramel discovered that Defendant Wedlake had falsified his log books when Officer Tramel found the fuel receipt which placed Defendant Wedlake in Lebanon Junction, Kentucky on the day of the accident, October 19, 1999. (Tramel Deposition, pp. 25-26 at Appendix 15; Wedlake Deposition Exhibit 7 at Appendix 14)
When questioned in his deposition about the log book falsification, Defendant Wedlake testified that immediately after the accident, even though he noticed that Mrs. Smith appeared to have been seriously injured, he decided to return to his truck to complete his log books for the day of the accident. (Wedlake Deposition, p. 33-35 at Appendix 14) Defendant Wedlake testified that he was nervous because of the accident and that he simply “made a mistake” in drawing the line on the log book chart. (Wedlake Deposition, p. 35 at Appendix 14) That he had “made a mistake” was the only explanation that Defendant Wedlake offered in his deposition regarding why he was charged with falsifying his log books by Officer Tramel. (Wedlake Deposition, pp. 30-35 at Appendix 14)
Defendant Wedlake testified that he explained to Officer Tramel at the accident scene that he had simply made a mistake in drawing the line. (Wedlake Deposition, p. 97 at Appendix 14) Officer Tramel testified that Defendant Wedlake offered no explanation at the accident scene as to why his log books were incorrect. (Tramel Deposition, p. 30 at Appendix 15)
When asked to produce his log books, Defendant Wedlake testified that his log books were destroyed by vandals who broke into his tractor trailer in December, 1999. (Wedlake Deposition, pp. 39-44 at Appendix 14) Defendant Wedlake testified that he parks his tractor trailer with five other trucks about 500 yards from his house in Steubenville, Ohio. (Wedlake Deposition, p. 40-41 at Appendix 14) Defendant Wedlake testified that another driver’s cell phone and C.B. radio were stolen from his truck. (Wedlake Deposition, p. 42-43 at Appendix 14) Defendant Wedlake testified that although he also had a C.B. radio in his truck, it was not touched; however, his log books were destroyed by the intruders. (Wedlake Deposition, p. 42-44 at Appendix 14)
At his deposition on July 27, 2001, Defendant Wedlake was asked to recreate his log books for the events of October 15, 1999 through the date of the accident and he did so. (Wedlake Deposition, pp. 84-93 at Appendix 14; Wedlake Deposition Exhibit 6 at Appendix 9) Defendant Wedlake testified that he had completed his log books for October 18, 1999 while he was stopped in Lebanon Junction, Kentucky. (Wedlake Deposition, p. 91 at Appendix 14) According to Defendant Wedlake, he arrived in Lebanon Junction, Kentucky just before Midnight on October 18, 1999. (Wedlake Deposition, p. 73 at Appendix 14)
A. PUNITIVE DAMAGES ARE INTENDED TO DETER THE TYPE OF CONDUCT EXHIBITED BY DEFENDANT WEDLAKE IN THIS CASE.
Punitive damages are intended to punish the defendant for wrongful conduct and to deter others from similar conduct in the future. Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 445 (Tenn.1984) (citing Liberty Mutual Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760 (1963)). These damages refer to the nature of the defendant's conduct rather than to the injury plaintiff suffered, Breault v. Friedli, 610 S.W.2d 134 (Tenn.App.1980), although actual damages must be found as a predicate for the recovery of punitive damages. Allen v. Melton, 20 Tenn.App. 387, 99 S.W.2d 219, 225 (Tenn.App. 1936). In awarding punitive damages, the law blends the interests of society and the aggrieved individual and awards such damages as will operate to deter others from like conduct. Pridemark Custom Plating, Inc. v. Upjohn Co., Inc., 702 S.W.2d 566, 573 (Tenn.App.1985) (citing Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557 (1899)).
The decision to award punitive damages is within the discretion of the fact?finder. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901?02 (Tenn.1992). Whether punitive damages are awarded at all and, if so, the proper amount of such damages, is pre?eminently for the jury to decide. Coppinger Color Lab, Inc. v. Nixon, 698 S.W.2d 72, 74 (Tenn. 1985); Lichter v. Fulcher, 22 Tenn.App. 670, 125 S.W.2d 501 (1938).
In Hodges, supra, the Tennessee Supreme Court determined that punitive damages are available only where a defendant has acted intentionally, fraudulently, maliciously or recklessly. The Court explained:
A person acts intentionally when it is the person's conscious objective or desire to engage in the conduct or cause the result. A person acts fraudulently when (1) the person intentionally misrepresents an existing, material fact or produces a false impression, in order to mislead another or to obtain an undue advantage, and (2) another is injured because of reasonable reliance upon that representation. A person acts maliciously when the person is motivated by ill will, hatred, or personal spite. A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.
Id. at 901.
As this Court is well aware, for purposes of Defendants’ Motion, all evidence must be taken in a light most favorable to the Plaintiffs. Morales v. American Honda Motor Co., Inc., 71 F.3d. 531, 535 (6th Cir. 1995).
B. DEFENDANT WEDLAKE WAS BEYOND THE MAXIMUM HOURS ALLOWED BY FEDERAL LAW, KNEW IT, TOOK ACTIVE STEPS TO CONCEAL IT, AND CONSCIOUSLY DISREGARDED A SUBSTANTIAL RISK OF HARM.
The entirety of Defendants’ argument appears to be based upon the proposition that since Defendant Wedlake is the only known witness to his actual travels, his testimony is undisputed. While this argument seems plausible on its face; if the lone witness lacks credibility or offers contradictory sworn statements, then the facts on which the lone witness testifies become disputed. This is the situation in the case sub judice.
The issue of whether Defendant Wedlake was driving beyond the maximum on duty hours allowed by federal law can be boiled down to a single question: “When did Defendant Wedlake leave the Follensbee/Steubenville area?” Plaintiffs allege that he left around 1:00 p.m. EST on October 18, 1999. Defendants theory is that he departed at Midnight EST on October 17, 1999.
If Defendant Wedlake left the Follensbee/Steubenville area around 1:00 p.m. EST on October 18, 1999, then he was beyond the maximum on duty hours allowed by federal law at the time of the accident. (Dillard Affidavit, para 8-11 at Appendix 17) If Defendant Wedlake left at Midnight on October 17, 1999, he may not have been beyond the maximum on duty hours. Plaintiffs submit that when Defendant Wedlake actually departed the Follensbee/Steubenville area is a question of fact for the jury. In resolving this issue, a jury will have to reconcile the following facts.
In his deposition, Wedlake testified that he left Follensbee in the afternoon, after lunch. (Wedlake Deposition, pp. 15-17 at Appendix 14) This is probably the truth; however, it contradicts his most recent version of events which has him leaving in the middle of the night. (Wedlake Affidavit, para 4-5)
In their Memorandum, Defendants state that Defendant Wedlake was testifying “two years after the accident without the benefit of any records or documents concerning the trip”. (Defendants’ Memorandum, p. 10) Defendants’ assertion is patently false. Defendant Wedlake had both the fuel receipt from Millersport, Ohio and the fuel receipt from Lebanon Junction, Kentucky in his possession at the time he offered his first sworn version of events. (Wedlake Deposition Exhibits 4 and 5 at Appendix 7 and 8) The Millersport fuel receipt clearly shows that Defendant Wedlake was in that city on October 18, 1999. The Lebanon Junction fuel receipt clearly shows Defendant Wedlake was in that town on October 19, 1999. In response to a direct question on the Millersport fuel receipt, Defendant Wedlake testified that the truck stop was at the Interchange of Interstate 70 and Highway 158, which is Exit 122. (Wedlake Deposition, p. 25 at Appendix 14; Map at Appendix 4) However, in his recent Affidavit, Defendant Wedlake testified that the truck stop is at Exit 126. (Wedlake Affidavit, para 4) In other words, when Defendant Wedlake wanted to convince this Court that he had been in Columbus, Ohio, he moved the truck stop closer to Columbus in his deposition. Knowing that the truck stop was not on Exit 122, Defendant Wedlake attempted to add credibility to his fabrication by stating: “they [the truck stop] use Millersport as an address” (Wedlake Deposition, p. 25 at Appendix 14)
Defendant Wedlake was even confronted with both receipts in his deposition but he stuck by his story that he had left the Follensbee/Steubenville area on a Friday:
Q. Let me hand you what’s been marked Exhibit No. 4, and ask you if you can identify it as being a fuel receipt from Millersport, Ohio on October 18, 1999?
A. Yes.
Q. Also, Exhibit No. 5, is that a fuel receipt for October 19, 1999, out of Lebanon Junction, Kentucky?
A. Yes.
Q. Both of which you signed?
A. Yes.
Q. Now, does that help you remember the sequence of events and the dates?
A. Well, I was just off the one day, that’s all.
Q. All right.
A. Everything else is the same.
(Wedlake Deposition, pp. 71-72 at Appendix 14)(emphasis added)
Furthermore, Defendant Wedlake was able to recall other details about his travels two years ago with surprising specificity. He recalled that he had inspected his tractor trailer at the beginning of his trip and that everything was fine (Wedlake Deposition, p. 58 at Appendix 14); he recalled that he had inspected his tractor trailer in Columbus, Ohio and noticed that one of his marker lights was out, and even stated that he had attempted to fix it (Wedlake Deposition, p. 102 at Appendix 14); he recalled that he noticed that he was leaking oil when he inspected his tractor trailer in Columbus, Ohio (Wedlake Depositon, p. 103 at Appendix 14); and he even recalled that he drank a Pepsi at the truck stop in Westmorland, Tennessee on October 19, 1999. (Wedlake Deposition, p. 24 at Appendix 14).
In his recent Affidavit, Defendant Wedlake also attempts to explain away his previous testimony by stating that he was confused in his deposition. Upon review of his testimony, it is obvious that there is no confusion on the part of Defendant Wedlake in his deposition as to when his trip began, only a confusion as to whether a particular Friday in October, 1999 was the 15 th or 16 th . (Wedlake Deposition, p. 16 at Appendix 14) Defendant Wedlake is trying to use the fact that he could not recall the exact date as an opportunity to escape being caught in perjured testimony. Defendant Wedlake testified unequivocally on three separate occasions during his deposition that his trip began on Friday. (Wedlake Deposition, pp. 16-18; 70-74; 85-89 at Appendix 14) Defendant Wedlake even testified under oath that he spent the weekend with his brother-in-law in Columbus, Ohio. (Wedlake Deposition, p. 16 at Appendix 14) However, in Defendant Wedlake’s most recent version of events, his brother-in-law is not even mentioned. This mysterious alibi witness has simply disappeared from the story all together with no further elaboration.
In his Affidavit, Defendant Wedlake testified that he lives only “a few miles” from the Wheeling-Nisshin plant and that he “often picks up loads and parks his rig at home” until he departs on his trip. (Wedlake Affidavit, para. 7) Plaintiffs submit that this routine is exactly the one followed by Defendant Wedlake in this case; however, exactly what he did in this case is a question for the jury.
If Defendant Wedlake left the Follensbee/ Steubenville area at around 1:00 p.m. EST as Plaintiffs contend, he would have passed through Millersport, Ohio between approximately 3:15 and 3:45 p.m. EST (Dillard Affidavit, para. 8 at Appendix 17) The documents subpoenaed from Flying J and EFS in the wake of Defendant Wedlake’s deposition testimony establish that Defendant Wedlake obtained fuel at the Flying J in Millersport, Ohio sometime between 2:51 p.m. and 3:54 p.m. EST. (Richards Stipulation at Appendix 22; Kraft Stipulation at Appendix 23)
Defendant Wedlake testified that his load of steel was due in Birmingham by 3:00 p.m. CST on the day of the accident, October 19, 1999. (Wedlake Deposition, pp. 27-28 at Appendix 14) Defendant Wedlake hit the fifteen hour maximum on duty time at approximately 3:00 a.m. CST on October 19, 1999. (Dillard Affidavit, para 11 at Appendix 17) According to Defendant Wedlake, he was somewhere close to Exit 53 on Interstate 65 South at 3:00 a.m. CST on October 19, 1999. (Wedlake Deposition, p. 76 at Appendix 14) If Defendant Wedlake had taken the requisite 8 hours of off duty time at that point in his trip, the earliest he could have come back on duty would have been at 11:00 a.m. CST. At that point, Defendant Wedlake would have been approximately 285 miles from Birmingham, Alabama and would have had only 4 hours remaining to make it there to unload his steel. Plaintiffs submit that this was the dilemma facing Defendant Wedlake which provided the motivation to falsify his log books and attempt to continue driving toward Birmingham without stopping the requisite 8 hours, despite the fact that he was beyond the maximum on duty hours allowed by FMCSR Part 395.3. Officer Trammel testified that Defendant Wedlake’s log books indicated that Defendant Wedlake had made it to Westmoreland, Tennessee on October 18, 1999 and that he was in his sleeper berth by 8:00 p.m. CST. (Tramel Deposition, pp. 24-26 at Appendix 15) By falsifying his log books in the manner observed by Officer Tramel, Defendant Wedlake could claim that he had obtained the eight hours of off duty time required by FMCSR Part 395.3 in Westmorland, Tennessee (from 8:00 p.m. CST on October 18, 1999 to 4:00 a.m. CST on October 19, 1999) before resuming his journey to Birmingham.
Defendant Wedlake’s testimony about making a mistake in filling out his log books is implausible. Defendant Wedlake testified in his deposition that he completed his log book entry for October 18, 1999 while he was stopped at the Davis Brothers Travel Plaza in Lebanon Junction, Kentucky. (Wedlake Deposition, p. 91 at Appendix 14) Based on his own testimony, we know that Defedant Wedlake was stopped in Lebanon Junction, Kentucky around Midnight on October 18, 1999. (Wedlake Deposition, p. 73 at Appendix 14) The log book sheets run from Midnight to Midnight, one sheet per day. (Wedlake Deposition Exhibit 6 at Appendix 14) Defendant Wedlake was forced to admit that the only log book entry which was missing at the time of the accident was the one for the day of the accident, October 19,1999. (Wedlake Deposition, p. 91 at Appendix 14) Based on his earlier testimony that he completed his October 18, 1999 log entry while in Lebanon Junction, Kentucky, there would have been no room left to write on the log book sheet for October 18, 1999. (Wedlake Deposition Exhibit 6 at Appendix 14) As Defendant Wedlake soon discovered at his deposition, it is impossible to create a line on the October 19, 1999 log book which conveys the impression that Defendant Wedlake was in his sleeper birth by 8:00 p.m. in Westmorland, Tennessee on October 18, 1999. (Wedlake Deposition Exhibit 6 at Appendix 14)
Officer Tramel asked Defendant Wedlake why his log books were incorrect at the accident scene but Defendant Wedlake had no explanation to offer Officer Tramel. (Tramel Deposition, p. 30 at Appendix 15) The “I made a mistake” story surfaced for the first time two years after the fact. Defendant Wedlake has trapped himself in his lies to this Court and has raised a serious question for a jury. Defendant Wedlake’s falsifying his log books provides clear and convincing evidence that Defendant Wedlake knew he was violating the laws designed to prevent exactly the type of accident which occurred in this case.
Tennessee Courts have held that subsequent efforts to conceal the underlying actions can be considered by the trier of fact in determining whether to award punitive damages for the underlying actions. Hodges, supra at 901. In Metcalfe v. Waters, 970 S.W.2d 448 (Tenn. 1998) the Tennessee supreme court held:
We also disagree with the conclusion that punitive damages were improper because Waters' malpractice was not contemporaneous with his efforts to lie about and conceal his wrongdoing. Although the Court of Appeals correctly observed that the concealment of wrongdoing is listed among the factors in Hodges that may be considered in determining the amount of punitive damages, nothing in Hodges precludes the factor from being considered with regard to a defendant's liability for punitive damages. Indeed, other factors listed among those for consideration with respect to the amount of punitive damages are also necessarily considered with respect to the threshold liability issue; for instance, the "nature and reprehensibility of the defendant's wrongdoing." Hodges, 833 S.W.2d at 901. A close reading of Hodges, in fact, indicates that only evidence of a defendant's net worth or financial condition is deemed inadmissible in determining a defendant's liability for punitive damages. Id. at 901?902.
Finally, we believe that limiting consideration of a defendant's efforts to conceal his or her wrongdoing is inconsistent with the purpose of punitive damages: to punish egregious acts and deter others from committing the same or similar acts.
Id. at 452.
A jury can reasonably conclude from all of the above that Defendant Wedlake falsified his log books in an effort to continue driving to Birmingham and in doing so, showed a conscious disregard for a substantial risk of harm.
Defendant Wedlake’s story regarding the disposition of his log books also fails to stand up to close scrutiny. Defendant Wedlake testified that he parked his truck beside several others in his hometown of Steubenville, Ohio, that other trucks were broken into on the occasion in question, and that a cell phone and a C.B. radio were stolen out of one of the trucks. (Wedlake Deposition, p. 42 at Appendix 14) However, the only items of Defendant Wedlake’s which was damaged by the vandals were his log books; his C.B. radio was left untouched. (Wedlake Deposition, p. 42 at Appendix 14)
The question for the jury is whether the explanation offered by Wedlake with regard to his log books is believable. This issue becomes critical in light of the log book falsification. If Defendant Wedlake is lying about the destruction of his log books, the jury can reasonably conclude that Defendant Wedlake destroyed the log books in his continuing efforts to conceal the fact that he falsified his log books. Plaintiffs submit that, at a minimum, reasonable minds may differ on the issue.
According to his recent Affidavit, after picking up the steel, Defendant Wedlake failed to follow his admitted customary routine of returning home until beginning his trip. Rather, on this occasion, he allegedly drove two and one-half hours to Millersport, Ohio, arriving at around 2:30 a.m. EST, and then allegedly remained motionless at a truck stop in Millersport, Ohio for over sixteen straight hours, only two and one-half hours from home. Such conduct defies logic.
In a light most favorable to Plaintiffs, all of the above evidence weighs heavilty in favor of Plaintiffs’ contention that Defendant Wedlake left the Follensbee/Steubenville area around 1:00 p.m. EST on October 18, 1999. If the jury agrees, there will be more than sufficient evidence to support a finding that Defendant Wedlake was driving over the hours, knew it, falsified his log books to conceal it, destroyed the log books, and then repeatedly lied about his travels in an attempt to cover the whole thing up. Such a finding by a jury would certainly support an award of punitive damages in this case.
C. ONE HALF OF DEFENDANT WEDLAKE’S BRAKES WERE OUT OF ADJUSTMENT, HE KNEW IT, TOOK ACTIVE STEPS TO CONCEAL IT, AND CONSCIOUSLY DISREGARDED A SUBSTANTIAL RISK OF HARM.
Defendants’ own expert witness concedes that Defendant Wedlake’s brakes were out of adjustment and that this fact decreased Defendant Wedlake’s braking power by at least ten percent. (Cox Affidavit, para. 4) When dealing with 37 tons traveling at 50 miles per hour, any decrease in braking power becomes significant. (Daniel’s Affidavit, para 9 at Appendix 18). A jury must decide whether Defendant Wedlake knew his brakes were out of adjustment.
On this issue, a jury must determine why Defendant Wedlake drove the route he did coming into Tennessee (Map of Route Driven, Wedlake Deposition Exhibit 3 at Appendix 3). The only explanation offered by Defendant Wedlake was that he always traveled this route. (Wedlake Deposition, p. 61 at Appendix 14) On this point, this case is very similar to the issue facing the jury in Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn.1992). Mr. Hodges claimed he was wrongfully terminated because of a lengthy jury service whereas the defendants claimed it was due to Mr. Hodges’ disobedience. Id. at 898. There was no “smoking gun” indicating why Mr. Hodges has been terminated, only the competing testimony of the witnesses. The Tennessee Supreme Court allowed the issue to go to the jury. Id. at 902. Similarly, the jury in this cause should determine why Defendant Wedlake chose Highway 31 over Interstate 65 and whether he was attempting to bypass the inspection station at the State line.
Plaintiffs submit that there is ample evidence on which a jury can find that Defendant Wedlake’s sole reason for choosing the route is not credible. Defendant Wedlake testified that he traveled that route at least once per week for the last fifteen years, a total of over 780 separate occasions, and that he got off Interstate 65 at Cave City and came into Tennessee via Highway 31 every time. (Wedlake Deposition, p. 62 at Appendix 14).
However, when questioned about the route that he allegedly drove with such frequency, Defendant Wedlake could not remember the names of the towns through which he has allegedly traveled more than 780 times. (Wedlake Deposition, pp. 19-20; 61; 64 at Appendix 14) Defendant Wedlake could not remember the name of the city where Exit 53 is located, which is Cave City. (Wedlake Deposition, p. 61 at Appendix 14). Defendant Wedlake referred to the city of Gallatin, Tennessee first as “Scottlyn”, then referred to it as “Cotlin”. (Wedlake Deposition, pp. 63-64 at Appendix 14) He referred to the city of Westmorland, Tennessee as “Morehead”. (Wedlake Deposition, p. 19 at Appendix 14) Defendant Wedlake could not recall the name of the truck stop in Westmorland, Tennessee where he has allegedly stopped once a week for the past fifteen years. (Wedlake Deposition, p. 128 at Appendix 14) Defendant Wedlake could not remember the name of the waitress at the truck stop where he has stopped once a week for the last fifteen years. (Wedlake Deposition, p. 24 at Appendix 14)
Furthermore, Highway 31 is much more difficult for a tractor trailer to negotiate than is Interstate 65. One half of the route is two lane undivided highway. (Wedlake Deposition, p. 65 at Appendix 14) Defendant Wedlake had to pass through numerous small towns on Highway 31. (Map of Route Driven, Wedlake Deposition Exhibit 3 at Appendix 3) The average speed limit is 50 to 55 miles per hour and Defendant Wedlake encountered some stretches with a speed limit of only 35 to 45 miles per hour. (Wedlake Deposition, p. 64 at Appendix 14) While traveling on Highway 31, Defendant Wedlake encountered over twenty stop lights. (Wedlake Deposition, p. 63 at Appendix 14) Officer Greg Tramel testified that while on Highway 31, Defendant Wedlake would have encountered areas with steep grades (Tramel Deposition, p. 27 at Appendix 15), and that the only reason Defendant Wedlake was on Highway 31 was to avoid the Inspection Station. (Tramel Deposition, p. 29 at Appendix 15) Officer Tramel testified that Defendant Wedlake had no business being on Highway 31 and that Defendant Wedlake should have been on Interstate 65 South. (Tramel Deposition, p. 29 at Appendix 15)
There is certainly enough circumstantial evidence to bring Defendant Wedlake’s only explanation into question. Similar to Hodges, supra, if a jury does not accept Defendant Wedlake’s explanation as to why he traveled the route he did on the day of the accident, they can reasonably conclude that Defendant Wedlake was bypassing the inspection station at the Tennessee State line on the day of the accident because he knew he had a problem with his brakes. Such a finding would support an award of punitive damages in this case.
D. NO INDEPENDENT ACT OR OMISSION BY R&R EXPRESS IS REQUIRED FOR R&R EXPRESS TO BE VICARIOUSLY LIABLE FOR PUNITIVE DAMAGES.
In their Memorandum, Defendants suggest to this Court that “the courts have required independent acts or omissions of the principal prior to the imposition of punitive damages” (Defendants’ Memorandum, p. 13). Defendants’ assertion is simply a misstatement of the law in Tennessee. The cases cited by Defendants support the opposite position espoused by Defendants on the issue of whether some independent act on the part of the principal need exist before the imposition of punitive damages against it through vicarious liability. The most recent Tennessee Supreme Court case cited by Defendants is Dodson v. Anderson, 710 S.W.2d 510 (Tenn. 1986). In Dodson, the Tennessee Supreme Court noted that Mrs. Anderson was guilty of her own misconduct in upholding an award of punitive damages against her, stating:
We are of the opinion, however, that Mrs. Anderson's liability is not predicated solely upon the acts of her husband so as to be "technical or vicarious only." Price v. Clapp, 119 Tenn. 425, 105 S.W. 864 (1907). Mrs. Anderson is, rather, answerable for her own misconduct.
Id. at 513.
However, the Court in Dodson did not hold that such misconduct was necessary for Mrs. Anderson to be held liable for the punitive damages, stating specifically on this point:
It is equally clear that punitive damages may be awarded against a principal whose liability arises from the acts of an agent. Huckeby v. Spangler, 563 S.W.2d 555 (Tenn.1978), State v. Hartford Accident & Indem. Co., 44 Tenn.App. 405, 314 S.W.2d 161 (1958) (cert. denied June 6, 1958).
Id. at 513.
State v. Hartford Accident & Indem. Co., 44 Tenn.App. 405, 314 S.W.2d 161 (1958) (cert. denied June 6, 1958), relied upon by the Tennessee Supreme Court in Dodson, makes it crystal clear that the law is Tennessee is that it is not necessary to establish any independent act or omission on the part of the principal prior to the imposition of punitive damages under vicarious liability. The Hartford Court held:
As to the issue of punitive damages, it is well settled in this state that where a principal is found to be liable for a wrongful act of his agent, 'done with a bad motive and a disregard of social obligations', the principal may be held for exemplary or punitive damages as well as the agent. Springer Transportation Co. v. Smith, 84 Tenn. 498, 502, 1 S.W. 280; Knoxville Traction Co. v. Lane, 103 Tenn. 376, 389, 53 S.W. 557, 46 L.R.A. 549; American Lead Pencil Co. v. Davis, 108 Tenn. 251, 66 S.W. 1129. The basis for holding the principal for the acts of his agent is that the agent acts as the principal's alter ego or other self.
Id. at 163.
As stated so succinctly by the Court in Hartford, the agent is the “alter ego” of the principal. Plaintiffs submit that all of the acts of the agent, both the negligent and the reckless, are considered the acts of the principal. The law in Tennessee has been well settled on this issue for at least the last forty years. Punitive damages may be awarded against a principal under vicarious liability without a showing of any independent act or omission by the principal.
For all of the foregoing reasons, Plaintiffs respectfully submit that this Court should deny the Motion for Partial Summary Judgment filed by the Defendants and allow the issue of punitive damages in this case to go to the jury.
Respectfully submitted, ___________________________________ | |
Larry Hayes, Jr. Jackson, Kweller, McKinney, Moore, Attorney for the Plaintiffs, | No. 15481 |
I, the undersigned attorney, do hereby certify that a copy of the foregoing document has been delivered to the following parties in interest in this cause via overnight delivery this ______ day of October, 2001.
___________________________________ |
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