Sometimes we at the firm read about cases that seem fairly open-and-shut. Having worked on thousands of personal injury cases, we know they often get a lot more complicated than they seem at first blush. Attorneys are trained to examine those complications--intentionally seeing the trees instead of the forest.
Sometimes an accident's details aren't obvious at first, which can lead those who read about it to believe it should be resolved quickly and satisfactorily for the victims. We see that a lot with truck accidents, where news stories often paint a picture of a negligent trucker causing a wreck. No matter how clear the news reports make it seem, though, that trucker's defense attorneys will have some ideas about how "simple" the situation really is. One such incident appears to have happened in early May in Kentucky.
Here's What We Know.
In Louisville, two adults and a child were killed when a tractor-trailer crossed the center line of the Bluegrass Parkway near the Kentucky Route 49 overpass.
Authorities say that at approximately 11:20 a.m. on Thursday, May 11, the grain truck driven by 55-year-old Richie Warren crossed from the east- to the westbound lanes for unknown reasons. The truck then collided with a passenger vehicle in the westbound lane.
The collision took the lives of three of the vehicle's four occupants: 72-year-old Elmer O'Dell, his wife Vivian (71), and their 3-year-old granddaughter Kieren O'Dell. Her sister Phoebe, 5, survived the crash and was taken by Nelson County EMS to a nearby hospital. She was then flown by helicopter to a children's hospital in Louisville. After undergoing emergency surgery, she was listed in serious condition.
Richie Warren was treated at the scene for head injuries. No charges were filed while the Kentucky State Highway Patrol investigated the collision.
Most people might think this is an open-and-shut situation, where the trucker (and by extension his employer and insurer) are clearly responsible and must therefore compensate the O'Dell family for their loss. Unfortunately, in attempting to defend its interests, the trucking firm's defense attorneys can come up with some truly surprising contortions to either avoid or lessen its responsibilities in the eyes of the law.
How Could a Company Defend Itself In Circumstances Like These?
Even in the situation described above, it's not unlikely that the trucker's employer and its insurer will try to argue whatever angle they can to erase their obligation to the family of the deceased. That is their right, of course; they're entitled to due process, and civil law doesn't require them to prove their innocence--the plaintiffs must instead prove their guilt.
To be clear: I don't think defense attorneys are bad people. They're hired to defend their clients to the best of their ability, which means they must challenge the validity and/or gravity of the plaintiffs' claims. They have a job to do even when it's unsavory, and many of them do it well.
It may often seem simple to assign responsibility for an accident solely to one party or another. Even when the facts seem clear, though, other circumstances muddy the waters, and defense attorneys will cite those to introduce doubt to a jury:
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In a collision between a semi-truck and virtually anything short of a Sherman tank, the semi-truck's driver stands a significantly higher chance of surviving, which means that the only remaining witness is often the trucker him- or herself. That means the only available account of what happened would be the defendant's. It's problematic because people will generally explain events in a way that reflects well upon themselves. That's how accounts of phantom cars that "came out of nowhere" end up on official police reports. When the trucker's the only one left who can say what "really" happened, responding police may not have enough training in forensic analysis to dispute his story.
In the Louisville situation the trucker isn't the only witness, but the only other person directly involved is a seriously injured 5-year-old. No one should expect much helpful insight from the poor kid; that wouldn't be fair. It does however bring us back to the original dilemma of one reliable witness: the trucker that crossed the center line. Hopefully other motorists remained at the scene to offer aid and give statements, but reliable eyewitnesses are something of a luxury when it comes to crashes on remote country roads.
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Many factors could contribute to a truck's accidental crossover. Several of them lie with the driver himself--distractions like messing with a smartphone or GPS, changing the radio station, or reaching for another handful of French fries could all affect his attention to the road at a crucial moment. Worse, sometimes the driver is under the influence of drugs or alcohol (or both); a shocking number of truckers are arrested annually for intoxicated driving.
Other times they may try to cite problems with the vehicle itself--a blown tire, engine failure, or electrical malfunction could cause the driver to lose control. This is a tricky wire to walk, because vehicle and fleet maintenance is generally the province of the employer, so this isn't necessarily a way to dodge liability. However, it might lessen it somewhat if a third-party contractor is hired to maintain the trucks, since they could then be blamed for the mechanical or electrical failures. The contracting firm would need to hire its own defense attorney to fight those allegations.
Sometimes defense argues that external influences played a large part in the wreck. Bad weather, poorly-maintained roads, large debris in the lane, and dangerous driving by other motorists are often cited by defense as reasons a trucker "had to" swerve out of his lane. If it's painted as an intentional move to dodge something in the road, it's described as an absolutely-necessary course correction to avoid a sports car or a sofa that appeared suddenly. Such things absolutely can happen, though it's seldom as simple as some reckless driver steering into the path of a 60-foot missile.
Attorneys may try to invoke an "Act of God" defense when talking about those external factors. It's a bit of a Hail Mary, but doesn't negatively affect other defenses, so they'll often throw it in when inclement weather can be demonstrated. However, "Acts of God" are pretty narrowly defined as sudden and completely unavoidable acts of nature. For instance: Rainfall that caused wet roads, while naturally occurring, aren't so sudden that corrective action can't be taken. The trucker could adjust speed and steer more carefully. A successful Act of God argument would hinge more on a meteor landing square in the path of the truck, necessitating a drastic steering adjustment into the miraculously-unharmed opposite lane.
Sometimes no amount of finesse is going to convince a jury of reasonably prudent people that the trucker shouldn't be considered responsible for a crash. The accident's cause can't always be shown to be holistic; a butterfly may have flapped its wings in China, but that didn't cause the wreck in Kentucky. The defense has to acknowledge its client's liability. Its goal is then to mitigate the amount of that liability so that the defendants pay less in damages.
How Defense Reduces Its Clients' Duty
In the event that it won't be able to fully exonerate its clients, the defense wages a war of attrition, chipping away at how much punishment a jury is willing to dole out. Because I'm painting such a grim picture of their job, I feel like it's important to repeat that I don't think these defense attorneys are bad people--just ones who sometimes have to separate their personal convictions from their professional duties.
I try to humanize them because this part of their job requires them to quantify the value of a human life in dollars, then try to reduce that value as much as possible. They do this by suggesting some of the following things to a jury--keep in mind that they'd never say them as plainly as I'm going to, but no matter the ornate language they use, they're explaining why a specific life is worth less money than someone may think.
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Defense attorneys can lessen the amount of damages their clients face by reallocating at least some of the blame. Like I mentioned above, if they can convince the jury that weather conditions, other drivers, or mechanical troubles caused the truck to swerve, they conceivably can reduce the dollar amount owed to the plaintiffs.
They might (rather morbidly) argue that some lives don't carry the same fiscal value as others. In light of the Kentucky incident, some attorneys might note that calculating damages involves taking into account the number of remaining years a victim was likely to enjoy without the accident. Using actuarial data and the victims' health histories, they create an estimate of their remaining lifespans. Current U.S. lifespan estimates show men living 76 years and women 81 years. As both of the O'Dells were just over 70, defense attorneys might try to lessen awarded damages through data-based predictions of how much time they had left.
On the opposite side of that coin, some attorneys might say that children's lives are "worth" less than those of adults in their prime. Of course ending an entire life of potential is beyond tragic, but some have argued that the life of a young child is largely absent the financial aspects of adulthood and is therefore not subject to similar compensation. A child has no dependents, no job, and no debts. She has no loss of income because she hasn't yet begun to earn any. Restitution for her "quality of life" is hard to gauge because the life in question had barely begun. The law may be able to make statistical models for the remaining years of seniors, but it'd be almost impossible to chart the innumerable paths a 3-year-old girl's life might take. Without knowing whom she could have become, a jury cannot award damages for her lost time as that person. I understand if that seems heartless, but it's not untrue.
What Can We Take Away From This?
We've said it before, but it bears repeating: No matter how straightforward a lawsuit may seem, you can bet that it will get more complicated. Even if the trucker seems entirely responsible in the Kentucky crash, it is in the best interests of himself, his employer, and his insurer to fight the allegations or at least lessen their impact as much as possible. If there's wiggle room between "not liable at all" and "completely at fault," defense attorneys will try to move the needle as close to the former as they can. It's their job, and some of them are damn good at it. They'll seek to discredit the plaintiffs' story, deflect the blame, and deny liability on the part of their clients. They aren't wrong to do that; nobody wants halfhearted assistance in situations like that. It benefits plaintiffs to seek representation that is just as committed to their pursuit of justice.