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Belton Auto Accident Attorney – How Personal Injury Testimony is Analyzed by Insurance Companies – Exemplar Letter

Belton personal injury attorneys will find the following document of assistance in preparing lawsuit strategies for Cass County auto accident lawsuits.  Names and identifying information have been changed to protect the identity and privacy of those mentioned.

This lawyer’s auto accident analysis will benefit from learning the investigation, analysis and strategies employed by insurance companies.

March 2, 2011

VIA INTERNET E-MAIL AND U.S. MAIL

Keith E. Lees

Litigation Claim Representative

CASS COUNTY INSURANCE GROUP

Harrisonville Personal Lines

P.O. Box 68451

Belton, Missouri 65201

Keith.Lees@thebeltoninsurer.com

Re:     Case Style:  West, Michelle v. Ratcliffe, Theodora

Circuit Court of Cass County, Missouri at Harrisonville

Case No.:     00-CV-220007,.

Claim No.:   543 AL 54777

Our File:      06235-27526

Dear Mr. Lees:

Our Belton personal injury lawyer had an opportunity to take the deposition of Plaintiff Michelle West in the above-referenced Belton auto accident.  Also, plaintiff’s Lee’s Summit auto accident lawyer has taken the deposition of Defendant Theadora Ratcliffe.  This correspondence sets out a summary and our analysis of their depositions for your review.

MICHELLE WEST

Belton Auto Accident Personal Injury Plaintiff

Michelle West is a slightly overweight fifty year old single woman.  She comes across as honest, forthright and generally pleasant.   She will make an average witness before a Cass County Circuit Court jury.

Ms. West lives in Belton, Missouri.  She was a postal employee delivering the mail and a construction worker operating machines outdoors for many years. Presently, she works at Answer, an answering service located in Raymore, Missouri.  Plaintiff has a history of depression but testified that she has not been depressed for approximately one year and has not needed her anti-depressant medication.  She denies ever having back pain or other significant medical problems before the Belton auto accident in this case.

Ms. West claims that on March 18, 2009, she was attending a wake for a friend at Carson Funeral Home in Belton, Missouri.  After the wake, Ms. West was exiting the funeral home with Norma Beck, Lana Pratt, Sandy Leroy and Barbara Crown.  She remembers crossing the parking lot and hearing her friend, Sandy Leroy, screaming “look out.”  When Ms. West looked, she saw Ms. Ratcliffe’s automobile just a few feet from her.  Ms. West tried to avoid the automobile, was unable to do so and was struck by its back passenger side bumper.  She could not estimate the automobile’s speed.  The contact knocked her off the ground and back onto the asphalt parking lot.  At first, Ms. West thought that she had not received personal injury.  However, she quickly discovered that she was unable to get up.  She does not remember experiencing pain at the time.  Ms. West remembers one of her friends holding her head and praying for her until the ambulance arrived.

At Belton Research hospital, Ms. West was treated for a lower back injury, a broken front tooth, a deep 2.5 centimeter cut to her chin and a substantial skin wound to her face.  While at the Belton hospital, the plaintiff remembers experiencing generalized pain in her mouth, face, legs, knees, pelvis, neck, lower back and foot.  Ms. West stated that she had scabbing over a large potion of her face during her stay at the Belton hospital.  She believes that her physicians failed to diagnose her facial tattooing during her hospital stay because of the scabs that covered the tattooed area.  During her stay at Belton hospital, the plaintiff stated she had trouble moving her mouth and jaw to the extent that a dentist had to adjust it.  The dentist also repaired her broken front tooth.  After seven days at the hospital, she was released to go home.

Ms. West walked with the use of a walker for two months after her release from the hospital because of the pain in her knees and lower back.  She had friends come over to help her cook and clean during that time because of her limited ability to move.  Thereafter, the Belton auto accident victim walked with a cane for approximately four months.  When the plaintiff began using a cane to walk, she returned to work.  She switched to the night shift at Answer so that she could take more breaks because of fatigue.  The plaintiff did not experience a change in her rate of pay as a result of this change in working shifts. She claims to have lost nearly eight weeks of work because of personal injury from the Belton auto accident.

Plaintiff claims and appears to have facial tattooing on her left check just above her mouth.  To reduce the tattooing, she has had several hydroquinone treatments to bleach her skin.  She claims her doctors recommend that she undergo laser facial surgery, which will treat her facial tattooing as it stands.

Plaintiff claims that she needs to attend physical therapy every few months to keep her body from experiencing pain in her lower back.  Ms. West testified that she has little or no remaining nerve damage to her face.  She claims that the affected area of her cheek only “feels funny.”

THEADORA RATCLIFFE

Belton Auto Accident Personal Injury Defendant

Theadora Ratcliffe is a 78 year old woman of average build and appearance.  She comes across as pleasant, honest and forthright.  She can, however, be defensive at times and needs to be reminded to remain calm.  She will make an average witness before a Cass County Circuit Court jury.

Ms. Ratcliffe lives by herself at her home in Belton, Missouri.  She does not know the plaintiff. On March 18, 2009, she attended the wake of her sister-in-law Kathleen Pihr.  Ms. Ratcliffe parallel parked her 1999 Lincoln Continental on the street right next to the entrance to the parking lot of the funeral home.  (Exhibit “1,” attached hereto).  The wake ended at approximately 7:30 p.m.. Ms. Ratcliffe walked to her car alone and waited to give her daughter a ride to Ms. Ratcliffe’s home.

After waiting a short amount of time, Ms. Ratcliffe attempted to back her car into the parking lot to pick up her daughter.  She got in her car, started the engine and looked back to see if anyone was behind her.  Seeing no one, she backed the car into the parking lot to take the car to where her daughter was located.  At this point, Ms. Ratcliffe remembers that the car’s motor started racing and began to move at an even speed backwards.  She estimates the car’s speed at five miles per hour.  She repeatedly tried to apply the brakes; however, the automobile did not stop until it caused the auto accident with the corner wall of Carson Funeral Home.  She did not realize that her automobile had contacted the plaintiff.

Neither Belton Municipal Court nor the Cass County Sheriff’s Department issued Ms. Ratcliffe a traffic ticket for this Belton auto accident, in spite of the personal injury.  Therefore, no Belton criminal defense lawyer was retained.

Ms. Ratcliffe saw the plaintiff lying on the pavement to the side of where her car had passed when she got out of her car.  She stated “I was just beside myself,” meaning that she was shocked and worried, when she saw the plaintiff.  Ms. Ratcliffe stated she began shaking and “couldn’t hardly talk” because she was worrying about the condition of the plaintiff.  Ms. Ratcliffe received a small bump on her head from hitting the steering wheel when her car had its auto accident with the funeral home.  She requested no personal injury or medical treatment.  Ms. Ratcliffe regularly checked on the plaintiff’s condition while the plaintiff was in the hospital.  Upon advice from her family, she never personally contacted the plaintiff.

FURTHER HANDLING

OF THIS BELTON AUTO ACCIDENT

PERSONAL INJURY CLAIM

The plaintiff presently claims past medical expenses of $19,846.98.  The medical expenses arise from her stay at Belton Research Hospital, her physical therapy, cosmetic treatment for her facial tattooing, dental care, ambulance service, repairs to her eyeglasses, and a small amount of pain medication.  She claims $4,025.00 in future medical expenses for cosmetic surgery to treat her claimed facial tattooing.  She claims $2,410.89 for the seven weeks of work she allegedly missed. Her total special damages amount to $26,282.87.  This amount does not include any personal injury damages she may receive for her pain and suffering, future physical therapy, any lingering discoloration to her face or the alleged nerve damage to her left cheek.

Our Lee’s Summit auto accident lawyer took her deposition.  When the plaintiff testified in her deposition, she did not give the impression that she was exaggerating her personal injury medical claims.  The facial tattooing was visible at a distance.  It is also appears that she has nerve damage to the left portion of her face.  Specifically, it appears as though the left corner of her mouth and that area of her cheek hang slightly lower and do not react to her facial movements as the right side of her face does.

The medical review completed for us by Doctor Benson indicates that the auto accident personal injury to her lower back is more of a degenerative long term condition as opposed to a traumatic injury caused only by the car accident in this case.  However, there is no evidence as the present time indicating that Ms. West had trouble with her back before this Belton auto accident.  The condition in her lower back may simply be a long term degenerative condition that showed its symptoms only after the plaintiff was struck by our client.  Overall, the plaintiff will likely make a sympathetic and believable witness to a Cass County Circuit Court jury.  With the special damages she claims, which appear to be for the most part reasonable for the personal injuries, the verdict range could easily be in the $50,000.00 to $75,000.00 range.  While we could attack the claimed need for laser surgery on the basis of the lack of notation of facial tattooing in her medical records while in the hospital, her explanation seems logical.  Regardless, even if you eliminate the future charge for that future procedure, she still has specials of about $22,000.00.  This being a liability case, I suggest we begin negotiations and try to save something off of your limits.

As always, we will continue to keep you advised of significant events as they occur.  If you have any questions or if we can help in any manner, please feel free to contact our offices.

Very truly yours,

Matt Hamilton, Lee’s Summit personal injury lawyer

matthamilton@law-kc.com

Enclosure

MJH/ # 735659

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Lee’s Summit trucking accident – Petition for Damages – Wrongful Death – a CLE guide for Lawyers

Trucking accident lawyers handling wrongful death will benefit from the continuing education post.  Matt Hamilton, Lee’s Summit’s auto accident attorney posts this to benefit personal injury lawyers desiring to know the proper way to draft a petition for damages in a Kansas City trucking accident wrongful death lawsuit.

 

Call Matt Hamilton at 816-540-4040 if you are a trucking accident victim or a member of their family.

 

Lee’s Summit trucking accidents and Kansas City wrongful death claims must be handled swiftly as evidence spoils quickly.  The memories of witnesses dim.  Other parties, most notably the insurance companies will quickly (within days of the trucking accident or wrongful death) get statements from the witnesses and attempt to commit them to testimony harmful to the victims.  Also, the scene of the trucking accident or wrongful death will need to be photographed in detail and investigated as soon as possible.

 

The names of the persons a companies involved have been changed to protect the privacy of those involved.

 

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI

AT KANSAS CITY

ELMER D. SMITH, JR.

Plaintiff,

v.                                                                                                                              Case No.: 11-CV-214352

Div. 14

SOLID TRANSPORT CORP.

Agent:  Lola Windsor

3345 RD Mize Road

Lee’s Summit, MO 64063

Defendant.

PETITION FOR DAMAGES FOR

WRONGFUL DEATH TRUCKING ACCIDENT

COMES NOW, the plaintiff, Elmer D. Smith, Jr., by and through his undersigned trucking accident attorneys, and for his cause of action against defendant Solid Transport Corp. states and alleges as follows:

COUNT I – NEGLIGENCE

1.         Plaintiff is a Lee’s Summit, Jackson County, Missouri citizen who does business in Lee’s Summit, Jackson County, Missouri.

2.         Defendant is a Missouri corporation and does business in Lee’s Summit Jackson County, Missouri; its principal place of business is in Lee’s Summit, Missouri.

3.         Mr. Eric Cline was employed by Solid Transport Corp. and acting within the scope of his employment at all times pertinent hereto on the date of the Kansas City Lee’s Summit trucking accident and wrongful death.

4.         All of the acts, conduct and omissions, including the trucking accident and wrongful death herein alleged occurred within or near Lee’s Summit, in Jackson County, Missouri; at all times mentioned herein, Interstate 70, was a public highway and thoroughfare near Kansas City and Lee’s Summit, in Jackson County, Missouri, running in a general easterly and westerly direction.

5.         On or about December 16, 2007, Plaintiff Elmer Smith, Jr. was driving his semi-tractor trailer truck eastbound on Interstate 70 on the Lewis and Clark viaduct not far from Lee’s Summit, Missouri and Kansas City, Missouri.

6.         Mr. Cline was also a driver on Interstate 70 on the Lewis and Clark viaduct not far from Lee’s Summit, Missouri and Kansas City, Missouri and owed a duty of the highest degree of  care to other truck drivers and vehicles on the roadway.

7.         Defendant Solid Transport Corp. was careless and negligent during the Lee’s Summit trucking accident and wrongful death in the following respects:

(a)        in placing an automobile/truck upon a public thoroughfare without working lights, and

(b)        in placing an automobile/truck in tow upon a public thoroughfare that exceeded the maximum amount of weight allowed by Missouri law, and

(c)        in allowing its employee to drive an automobile/truck in the scope of his employment without a valid driver’s license.

8.         Defendant Solid Transport Corp., by and through its employee Mr. Cline, was also careless and negligent in the following respects:

(c)        in driving a vehicle in willful or wanton disregard for the safety of other

truck drivers and automobiles on the road, and

(d)        in failing to move its automobile/truck to the side of the road and out of the path of oncoming traffic when said move could be made with reasonable safety prior to the Lee’s Summit trucking accident in Kansas City, Missouri.

9.         The careless and negligent acts of the Defendant Solid Transport Corp. caused a Lee’s Summit trucking accident to occur between Defendant Solid Transport Corp.’s vehicle and Plaintiff Elmer Smith’s vehicle, directly resulting in a wrongful death trucking accident and damages to Mr. Smith and the wrongful death of Mr. Cline during the Lee’s Summit trucking accident.

10.       As a direct and proximate result of defendant’s Lee’s Summit trucking accident negligence, plaintiff Elmer D. Smith, Jr. has suffered over $50,105.54 in property damages, loss of profits, loss of earnings, and rental expenses.

COUNT II  –  NEGLIGENCE PER SE FOR

LEE’S SUMMIT TRUCKING ACCIDENT AND WRONGFUL DEATH

COMES NOW the plaintiff Elmer D. Smith, Jr., through his trucking accident lawyers and for Count II of his action against the defendant Solid Transport Corp. states that:

11.       Plaintiff’s attorneys incorporate herein by reference each and every allegation set forth in Count I of this Petition including the Lee’s Summit trucking accident and wrongful death specifics as though fully set forth herein.

12.       Missouri Revised Statute 307.075 provides that every truck, automobile, motor vehicle or motor-drawn vehicle shall be equipped with at least two working rear lamps that are plainly visible from a distance of five hundred feet to the rear.

13.       Defendant violated Missouri Revised Statute 307.075 by failing to equip its truck vehicle with working lamps that were plainly visible to motorists on the road.

14.       Missouri Revised Statute 307.075 was designed to prevent the damages sustained by the plaintiff Elmer Smith, Jr. during the Lee’s Summit trucking accident and wrongful death.

15.       As a direct and proximate result of defendant’s violation of Missouri Revised Statute 307.075, plaintiff Elmer Smith, Jr. has suffered over $50,105.54 in property damages, loss of profits, loss of earnings, and rental expenses. Mr. Cline suffered a Lee’s Summit wrongful death in the trucking accident.

WHEREFORE, plaintiff Elmer D. Smith, Jr., through his Lee’s Summit trucking accident attorneys and wrongful death lawyers and prays for judgment against defendant Solid Transport Corp. in an amount that is fair and reasonable as determined by the jury, plus interest as provided by law, for his costs incurred herein, and for such other relief as the Court deems just and proper.

DEMAND FOR JURY TRIAL

COMES NOW, the plaintiff, Elmer D. Smith, Jr., by and through his Lee’s Summit trucking accident lawyers and wrongful death attorneys and respectfully demands a trial by jury of all issues raised herein from this Lee’s Summit trucking accident and wrongful death.

Respectfully submitted,

_______________________________

MATTHEW J. HAMILTON              #48546

216 N. Highway 7

Post Office Box 215

Pleasant Hill, MO 64080

(816) 540-4040

Fax: (816) 540-3147

www.law-kc.com

LEE’S SUMMIT ATTORNEYS FOR TRUCKING ACCIDENTS

MJH: May 6, 2011\7047894

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Lee’s Summit Personal Injury Attorneys Win Large Victory in Auto Accident Case – Draft of the Appellate Brief

Lee’s Summit Auto Accident Lawyers and personal injury attorneys will benefit from the following appellate brief.  This was presented to the Western District Court of Appeals.  Lee’s Summit personal injury lawyer Matt Hamilton presented this automobile accident appeal to the Judges.  Hamilton won and the case was remanded for trial.

This post shows the proper way for Lee’s Summit car accident attorneys to prepare a written brief to an appellate court.  Lee’s Summit automobile accident attorneys will also benefit from its concise outline of the law regarding causation for a Lee’s Summit automobile accident personal injury lawsuit.

The names of the parties and some identifying information have been changed to protect the privacy of those involved.  Non-attorneys and car accident victims are warned not to blindly apply the issues in this case as they apply to this particular fact pattern and may not apply to your personal injury claim.

Contact Lees Summit auto accident attorney Matt Hamilton at 816-540-4040 with any questions.

IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

No. 66789

DAN JACKSON, ET UX.,

Plaintiffs – Appellants,

vs.

RANDALL SUMMIT, ET AL.,

Defendants – Respondents.

 

 

APPEAL FROM THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

17th Judicial Circuit No. CV124-17896CC

Honorable Joseph Carson

 

OPENING BRIEF OF APPELLANT

 

MATTHEW J. HAMILTON        #48546

of

HAMILTON & ASSOCIATES

P.O. Box 215

Pleasant Hill, MO 64080-0215

(816) 540-4040

(816) 540-3147 Facsimile

ATTORNEYS FOR APPELLANT DAN JACKSON, ET UX.

Date:  October 29, 2010

TABLE OF CONTENTS

TABLE OF AUTHORITIES………………………  3

JURISDICTIONAL STATEMENT………………. 3

STATEMENT OF THE FACTS………………. 4

POINTS RELIED ON……………. 6

ARGUMENT……………. 7

I.          The circuit court erred in granting Defendants’ motions for summary judgment because Plaintiffs presented evidence sufficient to make a submissible case of causation in that the Lees Summit auto accident’s cause was an unbroken chain of events with each party contributing to cause Plaintiffs’ personal injury automobile accident damages and not solely cause by the Plaintiff.  ………………  7

A.        Standard of Review…………… 7

B.        Plaintiff was not the sole cause of the Lees Summit auto accident but rather defendants contributed to proximately cause Plaintiffs’ automobile accident personal injury damages. . . . . .    8

1.         The legal test is whether the Lees Summit auto accident personal injury claim appears to be the Reasonable and Probable Consequence of acts or omissions by Defendants. .    8

2.         The Facts show Defendants were a Proximate Cause of this Lee’s Summit personal injury automobile accident . . . . . . . . .    9

3.         Plaintiff Merely admitted to Comparative Fault; Causation for the Lee’s Summit car wreck is Shared. . . . . . . . .  10

C.        Causation for this Lee’s Summit automobile accident is Not Too Remote – Genuine Issues of Material Fact Exist Regarding Whether Defendant Lees and Best’s Negligence was a Proximate Cause of Plaintiffs’ personal injury auto accident Damages…………  11

1.         The Law on Proximate Cause for Lee’s Summit auto accident lawsuits . . . . .     12

2.         The Facts Link Defendant Best & Defendant Lees to Proximate Causation of this Lees Summit auto accident. . . . . . .    13

3.         The facts of this Lees Summit auto accident differ from the lack of causation found in Wilkerson v. Williams and Brandstetter v Gerdeman. . . . . . .  15

D.        Missouri’s Public Policy of Comparative Fault Supports Plaintiffs’

Causation Argument. . . . . . . . . 17

II.        The Circuit Court of Jackson County at Independence erred in limiting the auto accident personal injury plaintiffs in their additional response and not allowing the affidavit of Dan Jackson because rule 74.04(c)(5) gives courts no authority to limit the scope of an additional summary judgment response under rule 74.04 (c)(2) in that the affidavit of Dan Jackson contains evidence that rebuts summary judgment and the Circuit Court of Jackson County at Independence failed to consider it . . . . . . . . . . 18

A.        Standard of Review . . . . . . . .   18

B.        The Circuit Court of Jackson County at Independence Violated Missouri Rule of Civil Procedure 74.04 by Refusing to Consider the Affidavit of Dan Jackson regarding the cause of the Lee’s Summit personal injury auto accident. . . . . . . . . .  19

1.         The law on affidavits, additional responses and summary judgment. . . . . .  . . . . 19

2.         The Circuit Court of Jackson County at Independence granted plaintiff leave to file an additional summary judgment response but refused to consider an affidavit. . . . . . . . . 20

3.         Either summary judgment is appropriate based on the evidence in the affidavit or the Circuit Court of Jackson County at Independence violated Rule 74.04. . . . . . . . . .21

4.         Justice and policy require the types of evidence allowed under Rule 74.04 to be considered by the court. . . . . . . . .  22

CONCLUSION………………22

CERTIFICATE UNDER RULE 84.06(c)……………23

TABLE OF AUTHORITIES

STATUTES

 

R.S.Mo. 537.765

RULES OF CIVIL PROCEDURE

MO R. CIV. P. 44.01 (b) 2007.

MO R. CIV. P. 74.04 (c)(2) 2007

MO R. CIV. P. 74.04 (c)(5) 2007.

CASES

Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990)

Hansen v. James, 847 S.W.2d 476, 481 (Mo.App. W.D. 1992)

Sirna v. APC Building Corp., 730 S.W.2d 561, 564 (Mo.App. 1987)

Champieux v. Miller, 255 S.W.2d 794 (Mo. 1953)

Semar v. Kelly, 176, S.W. 2d 289, 352 (Mo. 1944)

Wilkerson v. Williams, 141 S.W.3d 530 (Mo.App. 2004)

Brandstetter v. Gerdeman, 274 S.W.2d 240 (Mo. 1955)

JURISDICTIONAL STATEMENT

Appellants Dan Jackson and Rhonda Jackson appeal from a Summary Judgment entered by the Honorable Joseph Carson, Circuit Court of Jackson County at Independence, on December 28, 2010, on the issue of causation in this Lee’s Summit auto accident personal injury lawsuit.

Jurisdiction is properly vested in this Court under Art. V, Sec. 3 of the Missouri Constitution. This appeal does not invoke the exclusive jurisdiction of the Missouri Supreme Court under Art. V, Sec. 3 of the Missouri Constitution.

STATEMENT OF THE FACTS

On May 31, 2009, a group of automobiles was traveling south on Missouri Highway 291 near Lee’s Summit, Jackson County, Missouri. (L.F. 194).  The highway is a two lane road with one lane traveling north and one lane traveling south at the point of the Lees Summit auto accident. (L.F. 194).  The automobiles were traveling in a close pack southbound at approximately fifty-five miles per hour.  (L.F. 219, 220).

Defendant Cass was driving the first automobile.  (L.F. 219).  Defendant Best was driving the second automobile.  (L.F. 219).  Defendant Lees was third in line of automobiles.  (L.F. 219).  Defendant Summit was driving the fourth automobile in line.  (L.F. 219).  Plaintiff was driving the fifth and last automobile.  (L.F. 219).

There was a parked semi-tractor trailer on the right western side of the highway. (L.F. 311, Deposition page 69).  Just south of the semi tractor trailer, on the right western side of the highway, there was a ditch. Id. There were three automobiles in the eastern lane of traffic, traveling north at approximately the time of the Lees Summit auto accident.  (L.F. 220 para. 5).

Suddenly, without warning or signaling, the first automobile (driven by Defendant Cass) rapidly braked, coming to a near complete stop and then turned east onto a side road. (L.F. 220 para. 8, 9; 221 para. 10, 11).  The automobiles behind it were forced to rapidly brake as well, coming to a complete stop on the highway. (L.F. 220-22).  Their stop was so abrupt that each of the automobiles collided with one another, causing this Lees Summit personal injury auto accident.  (L.F. 220-22).

Plaintiff Dan Jackson was the last automobile in line and was traveling at what would have otherwise been a safe distance. (L.F.219 para 1; 695-96).  Surprised by the rapid, unexpected stop by the automobiles to his front and seeing the Lee’s Summit auto accident, he was unable to get his Mercury Topaz stopped in time. (L.F. 605-96).  His car had an accident, hitting Defendant Summit’s automobile.  (L.F. 195).  Plaintiff Dan Jackson suffered grievous auto accident personal injury as a result. (L.F. 196).  Plaintiff Rhonda Jackson suffered a loss of consortium. (L.F. 196).   Plaintiffs filed suit seeking an accurate apportionment of fault and reimbursement for their damages.  (L.F. 194-97).

Defendants Jerry Cass, Randall Summit, Carrie Best and Amy Lees filed for Summary Judgment in early 2009. (L.F. 1-463).  Plaintiffs filed their Response. (L.F. 214-269; 464-96; 623-680).  Defendants filed their Replies to Plaintiffs’ Response. (L.F. 497-605).  Plaintiffs filed their Sur-Reply.  (L.F. 606-622).  On May 25, 2009, Plaintiffs requested leave of court to file an additional response under rule 74.04(c)(5). (L.F. 681-85).  The Circuit Court of Jackson County at Independence granted Plaintiffs’ motion but stated it would only consider deposition testimony and not affidavits.  (L.F. 707-08, 714, 726, 739, 698, 770).  Plaintiffs filed their additional response under Rule 74.04(c)(5) on July 24, 2007 and included an affidavit from Plaintiff Dan Jackson.  (L.F. 703-06).  Defendants objected to the consideration of Plaintiffs’ additional response and to the consideration of an affidavit from Dan Jackson based on the court’s prior instructions. (L.F. 710-780). The Circuit Court of Jackson County at Independence granted Summary Judgment to Defendants on December 28, 2007. (L.F. 781-89).  Appellants filed their Notice of Appeal via U.S. mail on January 29, 2008, pursuant to the Revised Statues of Missouri and Missouri Supreme Court Rule 81.07.   (L.F. 790-801).

POINTS RELIED ON

I.          The Circuit Court of Jackson County at Independence erred in granting Defendants’ motions for summary judgment because Plaintiffs presented evidence sufficient to make a submissible case of causation in that the Lees Summit auto accident’s cause was an unbroken chain of events with each party contributing to cause Plaintiffs’ personal injury damages and not solely cause by the Plaintiff in this Lee’s Summit automobile accident.

R.S.Mo. 537.765

Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990)

Hansen v. James, 847 S.W.2d 476, 481 (Mo.App. W.D. 1992)

Sirna v. APC Building Corp., 730 S.W.2d 561, 564 (Mo.App. 1987)

Champieux v. Miller, 255 S.W.2d 794 (Mo. 1953)

Semar v. Kelly, 176, S.W. 2d 289, 352 (Mo. 1944)

Wilkerson v. Williams, 141 S.W.3d 530 (Mo.App. 2004)

Brandstetter v. Gerdeman, 274 S.W.2d 240 (Mo. 1955)

II.        The Circuit Court of Jackson County at Independence erred in limiting plaintiffs in their additional response and not allowing the affidavit of Dan Jackson because rule 74.04(c)(5) gives courts no authority to limit the scope of an additional summary judgment response under rule 74.04 (c)(2) in that the affidavit of Dan Jackson contains evidence that rebuts summary judgment and the court refused to consider it.

MO R. CIV. P. 44.01 (b) 2007.

MO R. CIV. P. 74.04 (c)(2) 2007

MO R. CIV. P. 74.04 (c)(5) 2007.

ARGUMENT

I. THE CIRCUIT COURT OF JACKSON COUNTY AT INDEPENDENCE ERRED IN GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT BECAUSE PLAINTIFFS PRESENTED EVIDENCE SUFFICIENT TO MAKE A SUBMISSIBLE CASE OF CAUSATION IN THAT THE LEES SUMMIT AUTO ACCIDENT’S CAUSE WAS AN UNBROKEN CHAIN OF EVENTS WITH EACH PARTY CONTRIBUTING TO CAUSE PLAINTIFFS’ PERSONAL INJURY DAMAGES AND WAS NOT SOLELY CAUSED BY PLAINTIFF IN THIS LEE’S SUMMIT AUTOMOBILE ACCIDENT.

A.      Standard of Review

The party with the burden of proof (Plaintiffs Dan and Rhonda Jackson) needs to submit legal and substantial evidence to make a submissible case.  Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case.  Whether evidence is substantial and whether inferences drawn from it are reasonable are questions of law.

The propriety of summary judgment is a question of law, and appellate review is de novo. St. Louis v. Benjamin, 226 S.W.3d 110 (Mo. banc 2007); ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).  This Court must view the record in the light most favorable to the non-movant (the plaintiffs). Id. This Court’s criteria for ascertaining the propriety of summary judgment are the same as those which Circuit Court of Jackson County at Independence uses initially. Id. Appellate courts do not defer to the Circuit Court of Jackson County at Independence ‘s order granting summary judgment because the circuit court’s initial judgment is based on the record submitted and amounts to a decision on a question of law. Id. Summary judgment is appropriate where the moving party establishes a right to judgment as a matter of law and that no genuine issue of material fact exists. Id. at 378.

B.      Defendants’ unsafe driving was a proximate cause of the Lees Summit auto accident.  Plaintiff’s actions were not the sole cause of the Lee’s Summit personal injury automobile accident.

The Circuit Court of Jackson County at Independence granted summary judgment for two reasons.  First, it concluded that plaintiff admitted in his deposition to being the sole and only cause of his damages from the Lees Summit auto accident.  That point is considered here.

1.         The Legal Test is whether the Lees Summit auto accident personal injury appears to be the Reasonable and Probable Consequence of acts or omissions by Defendants in the car wreck.

Plaintiffs Lee’s Summit personal injury lawyers must set forth facts, viewed in the light most favorable to them, that a genuine issue of material fact exists, whether the Lees Summit auto accident appears to be the reasonable and probable consequence of the acts or omissions of defendants in the car wreck.

Plaintiffs bear the burden to prove both actual causation and legal causation.  St. Louis v. Benjamin, 226 S.W.3d 110, 113-14 (Mo. banc 2007).  For actual causation, also known as cause-in-fact, plaintiffs must establish that the alleged Lee’s Summit auto accident personal injury harm would not have occurred “but for” a defendant’s conduct.  Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 862 (Mo. banc 1993).  “The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the Lee’s Summit auto accident personal injury was the natural and probable consequence.”  United Missouri Bank v. City of Grandview, 105 S.W.3d 890, 896 (Mo.App. W.D. 2003); Hale ex rel. Hale v. City of Jefferson, 6 S.W.3d 187, 194 (Mo.App. 1999).

“The test is not whether a reasonably prudent person would have foreseen the particular auto accident personal injury but whether, after the occurrences, the personal injury appears to be the reasonable and probable consequence of the acts or omissions in the auto accident by the defendant.” Id.; Martin v. Mo. Highway & Transp. Dep’t, 981 S.W.2d 577, 584 (Mo.App. 1998)(emphasis added). “The negligence of the defendant need not be the sole cause of the Lee’s Summit auto accident personal injury, as long as it is one of the efficient causes thereof, without which personal injury would not have resulted.” Id. “Ordinarily, causation is an issue that should be left to the trier of fact.” Hale, 6 S.W.3d at 194; Williams v. Mo. Highway & Transp. Comm., 16 S.W.3d 605, 611 (Mo.App. 2000).  Thus, Plaintiffs must show that an issue exists whether plaintiffs’ damages “appear to be the reasonable and probable consequence of the acts or omissions by the defendant” as presented by the lawyers in this Lee’s Summit auto accident personal injury case.

2. The Facts of this Lee’s Summit auto accident personal injury claim show Defendants were a Proximate Cause of the car accident.

The four Defendants were traveling down 291 highway just south of Lee’s Summit, all tail-gaiting one another.  (L.F. 219, 220).  Rather than reacting and increasing the distance between each other, each defendant continued tailgating. (L.F. 219, 220).  This caused the risk of a Lee’s Summit auto accident and personal injury.  Perhaps this was because the lead truck, Defendant Cass, was traveling at fifty five miles per hour and they wanted to go faster.  Increasing the risk of a personal injury auto accident, several of the defendants were actively talking with their passenger rather than focusing on the road.  (L.F. 220, para. 6, 7).  Each defendant behind them, seeing that the automobile to their front was not paying full attention to the highway to their front, ignoring the risk of a Lee’s Summit auto accident and personal injury, still continued to tail-gait. (L.F. 219, 220, para. 6, 7).

Then it happened.  Defendant Cass, first in line, having ran upon his turn, slammed on his brakes to make the turn. (L.F. 220-22).  He also failed to use his turn signal. (L.F. 221, para. 10).  The risk of a personal injury auto accident in Lee’s Summit materialized at this point.  Each of the three automobiles behind them also slammed on their brakes. (L.F. 220 para. 8; 221 para. 13, 14, 15).  This caused the various automobiles to have auto accidents into one another almost simultaneously. (L.F. 221 para. 15, 16, 17).   A reasonable jury could find that a multiple car Lees Summit auto accident resulting in personal injury was a natural and probable consequence of this combination of high speed, tailgating, failing to focus on the road ahead and failing to react to the conditions the defendants observed.  These facts demonstrate a submissible case of probable cause.

3. Plaintiff Merely admitted to Comparative Fault for the Lee’s Summit Personal Injury Auto Accident; Causation is Shared.

Defendants’ contribution to the Lees Summit auto accident’s cause remains in spite of Plaintiff Jackson’s admission of comparative fault.  Jackson testified in his deposition:

Q:        And if I understand your testimony is that you were unable to stop and smashed into the rear of this truck because you looked away from the roadway for a second to glance in your rearview mirror?

A:        One second, yes.

Q:        And the reason why you believe that you were unable to stop and smashed into the rear of that truck was because you took your eyes away from the roadway for a second to look in your rearview mirror?

A:        Yes, sir.

(L.F. 346; Deposition of personal injury auto accident defendant Dan Jackson, pp. 209, ll. 5-20).

This is an admission of comparative fault.  It is not a statement that one second of inattention was the sole and only cause of the personal injury Lees Summit auto accident.  Furthermore, it is arguable (and Plaintiff through his Lee’s Summit personal injury attorneys in his Affidavit explains) that he was discussing why he “smashed” into the rear of the truck rather than having a lower impact Lees Summit auto accident. (L.F. 695-96).  This important distinction goes to the degree of comparative fault for the Lee’s Summit injury automobile accident and does not justify summary judgment.  This Lees Summit auto accident was caused by a chain of actions and inactions. (L.F. 220-22).  One ingredient cannot be cherry-picked out and declared dispositive as pointed out by the Lee’s Summit personal injury lawyers.

The same argument of singling out an act of negligence and pinning causation to it can be made against each Lee’s Summit personal injury defendant; yet each would object if declared the sole cause.  The Lees Summit auto accident would not have occurred if personal injury Defendant Cass had been focusing on the road and his turn instead of talking and turning his head to his passenger, or if he had used his turn signal, or if he had slowed gradually. (L.F. 220 para 7, 8, 9; 220 para. 10, 11).  The Lees Summit auto accident would not have occurred if Defendant Best had reacted to seeing personal injury Defendant Cass’s lack of attention, or if she hadn’t tailgated him, or slowed in response to Defendant Lees tailgating her. (L.F. 219 para. 2; 220 para. 3, 6, 8, 9).  Defendant Lees could have prevented the Lees Summit auto accident possibly by slowing in response to Lee’s Summit personal injury Defendant Best’s perceived inattention while talking with her passenger, or in response to the dangerous proximity of the automobiles. (L.F. 219 para 2; 220 para 3, 4; 221 para. 14, 15).  The wreck would have been prevented if Lees had slowed in response to Defendant Summit following closely behind her. Id.  Defendant Summit could have avoided the multiple car Lees Summit auto accident and resulting personal injury by maintaining a safe distance with the automobile in front of him. (L.F. 220 para. 4; 221 para. 14, 15).  The various defendants would have had time to provide an adequate warning if any of these acts had occurred.  Plaintiff Dan Jackson then would have had adequate warning and time to avoid the Lees Summit auto accident and personal injury.

Compare each act of negligence to Plaintiff’s deposition quote and the error in this logic arises. (L.F. 346; Deposition of Dan Jackson, pp. 209, ll. 5-20).  “And the reason why [defendant] was unable to stop and smashed into the rear of that automobile was because [Defendant was driving too close to the automobile in front and failed to slacken speed]?”  This is true for each defendant, yet each defendant was not the sole cause of the Lees Summit auto accident.  So too, plaintiff was not the sole cause of the Lee’s Summit personal injury.

C.      Causation is Not Too Remote – Genuine Issues of Material Fact Exist Regarding Whether Defendant Lees and Best’s Negligence was a Proximate Cause of Plaintiffs’ Lee’s Summit Personal Injury Damages.

The second of the two reasons the circuit court of Jackson County at Independence granted summary judgment is that it concluded causation was too remote to the second and third personal injury accident automobiles (driven by Defendants Best and Lees).  The circumstances of the Lees Summit auto accident in this case are an unbroken, nearly simultaneous chain of events, with Defendants Best and Lees as key links.  These create a submissible case on causation; the circuit court of Jackson County at Independence erred in concluding they were too remote.

1. The Law on Proximate Cause for Lee’s Summit Personal Injury Auto Accident Lawyers.

The Missouri Supreme Court in Krause v. U.S. Truck Co. set out the test for “proximate cause” as follows:

The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural or probable consequence. . . . Thus, from the essential meaning of proximate cause arises the principle that in order for an act to constitute the proximate cause of an injury, some injury, if not the precise one in question, must have been reasonably foreseeable.  The cases discussing proximate cause contain the exasperating caveat that in deciding questions of proximate cause and efficient, intervening cause, each case must be decided on its own facts, and it is seldom that one decision controls another.

Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990)

“Proximate cause, and hence, a causal connection, is present if the evidence shows the negligence to have been the efficient cause which set in motion the chain of circumstances leading up to the personal injury.”  Hansen v. James, 847 S.W.2d 476, 481 (Mo.App. W.D. 1992); Sirna v. APC Building Corp., 730 S.W.2d 561, 564 (Mo.App. 1987).  The fact that the negligence of others, be they fellow defendants or the plaintiff himself, contributed to cause a Lees Summit auto accident will not exonerate a defendant whose actions contributed to cause the Lees Summit auto accident.  R.S.Mo. 537.765; Champieux v. Miller, 255 S.W.2d 794 (Mo. 1953); Semar v. Kelly, 176, S.W. 2d 289, 352 (Mo. 1944).[1]

2.         The Facts Link Defendant Best & Defendant Lees to Proximate Causation for this Lee’s Summit Auto Accident Attorneys for Personal Injury.

The Lees Summit automobile accident lawyers presented the actions of Defendant Best as an efficient cause, setting in motion the chain of circumstances that led to Plaintiffs’ personal injuries.  Defendant Best was tailgating Defendant Cass at less than twenty feet as the two automobiles traveled down 291 Highway just before the Lees Summit auto accident and personal injury. (L.F. 219 para. 2).  The Lees Summit auto accidents of the automobiles occurred “almost instantly” and were “very close in time.”  (L.F. 221 para. 16).  Best was so close, when Defendant Cass slowed, she had to “slam on” her brakes. (L.F. 220 para. 8).  Defendant Best’s automobile was less than a foot from Defendant Cass’s when it turned. (L.F. 220 para. 8).  Carrie Best was going too fast to stop a Lees Summit auto accident and personal injury with Defendant Cass’s truck without evasive action by him.  (L.F. 220-21 para. 9).  Defendant Best made a fast, abrupt stop on Missouri Highway 291 during the Lees Summit auto accident. (L.F. 221 para. 13).  She braked her automobile in a “real fast” and “really abrupt” manner. (L.F. 221 para. 13).

“But for” Defendant Best slamming on her brakes without warning on a Lee’s Summit, MO highway, the automobiles behind her would have had additional time and warning to adequately slow and prevent a Lee’s Summit automobile accident and personal injury.  Further, these failures are a proximate cause because a multiple car Lees Summit auto accident is “a natural and probable consequence” of making a really fast, really abrupt stop at highway speed while one knows the automobiles behind you are tailgating.  (L.F. 221).  A reasonable jury could conclude that failing to pay attention to traffic conditions setting the stage for a multiple car Lees Summit automobile accident resulted in just such a Lees Summit auto accidentas argued by the attorneys.  There is a material fact in dispute regarding proximate cause with Defendant Best.

There is also a submissible case of causation for Lee’s Summit personal injury Defendant Lees.  Defendant Lees was “tailgating” Defendant Best “real bad” at less than twenty feet, at one-half of a car length distance, “riding very close” as the two automobiles traveled down 291 Highway just before the Lees Summit auto accident. (L.F. 220 para. 3).  Amy Lees slammed on her brakes. (L.F. 221 para. 14).  At the same time, she automatically looked in her rear view mirror, saw Mr. Summit coming and determined he was not going to get stopped in time to avoid a Lees Summit auto accident with her. (L.F. 221 para. 14).  Defendant Lees collided with Defendant Best, then Defendant Summit collided with Defendant Lees, then Plaintiff Dan Jackson collided with Defendant Summit. (L.F. 221).  It was like “wham, bam, bam, bam.”  All the automobiles hit each other at pretty much the same time. (L.F. 221 para. 15).

“But for” personal injury Defendant Lees failing to slacken her speed so she was not tailgating the automobile to her front, failing to respond to the automobile closely following behind her and slamming on her brakes, a jury could conclude the Lees Summit auto accidents behind her would not have occurred.  Further, her failures amount to proximate cause.  A natural and probable consequence of tailgating, then “slamming” on one’s brakes with automobiles to one’s back is a multiple car Lees Summit auto accident.  The proximity of these events is nearly simultaneous.  A material fact exists regarding proximate cause with Defendant Lees.

A reasonable jury could conclude that the Lees Summit auto accident and personal injury in these circumstances was reasonably foreseeable.  Thus, in compliance with Missouri law on causation as set out in Krause, Hansen, and Sirna, Best and Lees’ acts of negligence (failing to pay attention, failing to respond, failing to slow or veer) were “the efficient cause which set in motion the chain of circumstances leading up to the injury.”  Accordingly, a reasonable jury could find causation for the Lee’s Summit personal injury attorneys in this auto accident case.

 

3.         The facts of this case brought by the Kansas City personal injury lawyers differ from the lack of causation found for the personal injury attorney in the Lee’s Summit auto accident cases of Wilkerson v. Williams and Brandstetter v Gerdeman.

The circuit court of Jackson County at Independence based its conclusion of lack of causation against Defendants Best and Lees on perceived similarities with Wilkerson v. Williams, 141 S.W.3d 530 (Mo.App. 2004) and Brandstetter v. Gerdeman, 274 S.W.2d 240 (Mo. 1955).  The facts presented by the Lee’s Summit automobile accident lawyers in those cases materially differ from the present case.

Wilkerson Differs.                 The speed of the automobiles here points towards causation, unlike Wilkerson.  In Wilkerson, the automobile was traveling between twenty and twenty-five miles per hour. Wilkerson v. Williams, 141 S.W.3d 530, 532 (Mo.App. S.D. 2004).  In the present case, the automobiles were traveling fifty-five miles per hour. (L.F. 9, 250, 263).  This speed difference relates to causation because the Lees Summit auto accidents in the present case occurred because the automobiles had insufficient time to react to Defendant Cass’s negligent driving and had insufficient time to react to the braking-colliding automobiles front of them. (L.F. 220, 221, 222). The Belton personal injury lawyers in Cass County confirmed this.

Slow speed would have allowed more time for the automobiles to react and avoid the Lees Summit auto accident and personal injury.  Slow speed would cause the automobiles to need less room to stop and thus not collide.  Unlike Wilkerson, the high speed chosen by the drivers in this case contributed to cause the Lees Summit auto accident.

The Lee’s Summit auto accident lawyers state that the distance between the automobiles in this case differs from Wilkerson and thus lends to causation.  In Wilkerson, the automobiles were five to seven car lengths apart. Wilkerson at 532.  In the present case, the automobiles were less than twenty feet (less than two car lengths) apart. (L.F. 219, 220). This relates to causation because greater distance between the automobiles would have allowed more space for the automobiles to react and avoid the Lees Summit auto accident and personal injury.  Greater space between the automobiles would have allowed more of a warning and more room to stop and avoid the Lees Summit auto accidents.   Unlike Wilkerson, the tailgating of the automobiles chosen by the drivers in this case contributed to cause the Lees Summit auto accidents.

The Lees Summit personal injury lawyers state that the sequence of events in the Jackson County, MO auto accident in the present case differs from the sequence of events in Wilkerson.  In Wilkerson, the first car came to a complete stop.  Wilkerson at 532.   The second automobile came to a complete stop. Id.  The third car came to a complete stop. Id.  None of these were involved in the car accident before the Lees Summit auto accident with the personal injury plaintiff. Id.  In contrast, the Lee’s summit automobile accident attorneys argue in the present case, Defendant Best would not have been able to stop and avoid a Lees Summit auto accident with Defendant Cass if he had not turned at the last instant. (L.F. 220 para. 8, 9; 221).  Further, the second, third and fourth cars all collided.  (L.F. 221 para. 15, 16, 17).  Defendant Lees struck Defendant Best. (L.F. 221 para. 15).  Defendant Summit struck Defendant Lees. (L.F. 221 para. 15).  All of this occurred before Plaintiff Jackson struck Defendant Summit. (L.F. 220-21).  This difference relates to causation because, unlike Wilkerson, the multiple car Lees Summit auto accidents create an unbroken chain of events proximately caused by Defendant Cass’s negligence.  Thus, the facts leading to a lack of causation in Wilkerson differ from the facts in this case.

Branstetter Differs. The Lee’s Summit car accident lawyer states that the sequence of events in the Lees Summit auto accident in the present case differs from the sequence of events in BranstetterBranstetter involved a multiple car Lees Summit auto accident.  Both the first two automobiles were able to come to a complete stop.  Brandstetter v. Gerdeman, 274 S.W.2d 240, 243-44 (Mo. 1955).  In contrast, the first automobile in the present case did not make a complete stop but made a turn so as to avoid a Lees Summit auto accident.  (L.F. 220, 221).  Also, the second car driven by Defendant Best was struck by Defendant Lees’ automobile as it stopped. (L.F. 221).  This is unlike the second automobile in Branstetter that was able to completely stop.  Brandstetter at 243-44.

The Lee’s Summit personal injury attorney state that the timing of events in the present case differs from Branstetter.  The first automobile slowed and came to a complete stop in Branstetter. 274 S.W.2d at 243-44.  Seeing the brake lights, the second automobile slowed and came to a complete stop. Id.   This second car was stopped for about two seconds before the Lees Summit auto accident.  Id.  Here, the first automobile driven by Defendant Cass was unable to stop and had to turn to avoid a Lees Summit auto accident. (L.F. 220-21 para. 9).  The second car driven by Defendant Best was unable to stop and no time elapsed before Defendant Lees collided with it. (L.F. 220-222).  Thus, both the sequence of events as well as the timing of the present case differs from Branstetter.

D.      Missouri’s Public Policy of Comparative Fault Supports Plaintiffs’ Causation Argument for this Lee’s Summit automobile accident

Missouri has used comparative fault for many years as its law.  Originally, if a plaintiff was even one percent at fault, he could not recover.  Our court system replaced this because of the many resulting injustices.  Some court systems today use a fifty-one percent standard such that if plaintiff bears the majority of causal fault, he cannot recover.  Missouri law avoids the uncertainty and injustices that result from this system.  Here, we compare the relative fault of the parties and give recovery based on that.  The present case is a perfect example of comparative fault’s utility.  We have an Lee’s Summit automobile accident caused by multiple acts of negligence and thus multiple acts that combined to cause it and the personal injury.  Missouri public policy states the jury should compare the actions of the various parties and give or withhold recovery accordingly.

II. THE CIRCUIT COURT OF JACKSON COUNTY AT INDEPENDENCE ERRED IN LIMITING THE PERSONAL INJURY PLAINTIFFS IN THEIR ADDITIONAL RESPONSE AND NOT ALLOWING THE AFFIDAVIT OF DAN JACKSON BECAUSE RULE 74.04 (c)(5) GIVES COURTS NO AUTHORITY TO LIMIT THE SCOPE OF A ADDITIONAL SUMMARY JUDGMENT RESPONSE UNDER RULE 74.04(c)(2) IN THAT THE AFFIDAVIT OF DAN JACKSON CONTAINS EVIDENCE THAT REBUTS SUMMARY JUDGMENT AND THE COURT FAILED TO CONSIDER IT.

A.      Standard of Review

The Kansas City personal injury lawyers for Plaintiffs need only submit legal and substantial evidence to make a submissible Lee’s Summit personal injury auto accident lawsuit.  Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case.  Whether evidence is substantial and whether inferences drawn from it are reasonable are questions of law.

The propriety of summary judgment is a question of law, and appellate review is de novo. St. Louis v. Benjamin, 226 S.W.3d 110 (Mo. banc 2007); ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).  The personal injury attorneys correctly allege this Court must view the record in the light most favorable to the non-movant. Id. Summary judgment is appropriate where the moving party establishes a right to judgment as a matter of law and that no genuine issue of material fact exists. Id. at 378.

B.      The Circuit Court of Jackson County at Independence Violated Missouri Rule of Civil Procedure 74.04 by Refusing to Consider the Affidavit of Dan Jackson.

1.         The Law on Affidavits, Additional Responses and Summary Judgment, which Lee’s Summit automobile accident attorneys must apply in personal injury lawsuits.

Missouri’s rule of civil procedure on summary judgment responses specifically contemplates the use of affidavits and contains no authority limiting a response.

Rule 74.04(c)(2) provides in pertinent part:

Responses to Motions for Summary Judgment. Within 30 days after a motion for summary judgment is served, the adverse party shall serve a response on all parties. The response shall set forth each statement of fact in its original paragraph number and immediately thereunder admit or deny each of movant’s factual statements.

A denial may not rest upon the mere allegations or denials of the party’s pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.

Attached to the response shall be a copy of all discovery, exhibits or affidavits on which the response relies.

MO R. CIV. P. 74.04 (c)(2) 2007 (emphasis added).

Rule 74.04(c)(2) specifically calls for parties to respond to disposition motions with affidavits.

Rule 74.04(c)(5) states: “Additional papers.  No other papers with respect to the motion for summary judgment shall be filed without leave of court.”  MO R. CIV. P. 74.04 (c)(5) 2007.  This rule does not allow for a limit on the scope of any additional papers that are filed.

Rule 44.01 grants no authority to limit a summary judgment response.

Rule 44.01 (b) provides:

Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon notice and motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 52.13, 72.01, 73.01, 75.01, 78.04, 81.04 and 81.07 or for commencing civil action.

MO R. CIV. P. 44.01 (b) 2007.

Rule 44.01 grants no authority for a court to limit the scope of a response under Rule 74.04.

2.         The Circuit Court of Jackson County at Independence granted the Harrisonville personal injury attorney for plaintiff leave to file an additional summary judgment response but refused to consider affidavits.

On May 24, 2007, the personal injury lawyers for Plaintiffs filed their Motion for Leave to File an Additional Response to Defendants’ Motions for Summary Judgment under Rules 74.04(c)(5) and Rule 44.01(b)(2).  (L.F. 681-85).  The circuit court of Jackson County at Independence granted Plaintiffs’ Motion for Leave to File an Additional Response on July 9, 2007.  (L.F. 707,714, 726, 739, 770).  The Jackson County Circuit Court, however, orally instructed the auto accident lawyers for Plaintiffs to file only deposition excerpts but not an affidavit from the Plaintiff Dan Jackson.  (L.F. 707-08, 714, 726, 739, 698, 770).  Plaintiffs’ personal injury attorneys filed their Additional Response on July 24, 2009.  (L.F. 703-06).  Plaintiffs auto accident lawyers’ Additional Response contained the sworn Affidavit of Plaintiff Dan Jackson and statements therefrom.  (L.F. 695-96; 703-06).

The affidavit of Dan Jackson contained statements that created a genuine issue of material fact and solidified plaintiff’s auto accident attorney’s case as submissible.  (L.F. 695-96; 703-06).  In spite of the affidavit, the circuit court of Jackson County at Independence concluded summary judgment was appropriate because Plaintiff testified in his deposition that he looked in his rear view mirror for a second just before the Lees Summit auto accident.  (L.F. 346; Deposition of Dan Jackson, pp. 209, ll. 5-20).  The affidavit introduced evidence that the look was a “glance” that “lasted only a split second and did not linger.”  (L.F. 695).  Further, Plaintiff testified that “my glance in the rearview mirror was so short and the truck’s deceleration so sudden that even if I had activated my brakes at the instant I glanced in the rearview mirror, I would not have been able to avoid the Lees Summit auto accident.”  (L.F. 696, pp. 7).  It further explained that his earlier deposition regarded the explanation of why his automobile “smashed” into Defendant Summit instead of “just about get stopped before hitting the truck.”  (L.F. 696, pp. 8 & 9).  In other words, the testimony the court’s basis for summary judgment for lack of causation was an explanation for the severity of the impact and not an explanation for the sole cause of the impact.  Thus, the evidence in the Affidavit of Dan Jackson proved Plaintiffs have a submissible case.

The circuit court of Jackson County at Independence did not expressly rule that it was not considering the Affidavit of Dan Jackson.  Instead, it simply ruled in favor of Defendants and granted summary judgment on December 28, 2007.  (L.F. 781-89).

3. Either Summary Judgment is appropriate based on the evidence in the affidavit or the court violated Rule 74.04.

There are two possibilities; either the circuit court of Jackson County at Independence considered the Affidavit of Dan Jackson over Defendants’ objections and the Jackson County circuit court’s previous statements that it would not, or the Jackson County circuit court refused to consider the Affidavit of Dan Jackson as evidence in response to Defendants’ summary judgment motions.  On one hand, if the Affidavit of Dan Jackson is part of the evidence refuting summary judgment, then plaintiffs Lee’s Summit car accident attorneys have made a submissible case and summary judgment should be reversed.  On the other hand, if the Jackson County circuit court refused to consider the Affidavit of Dan Jackson, then it committed error and the case of Plaintiffs’ Lee’s Summit automobile accident lawyers should be remanded for a reconsideration that includes the Affidavit.  This is because refusing to consider an affidavit, simply because it is an affidavit rather than deposition testimony is without authority and a violation of Missouri Rule of Civil Procedure 74.04.

4.         Justice and policy require that courts not have the power to limit the types of evidence allowed under Rule 74.04.

There are important reasons why Missouri courts cannot limit the record and types of evidence to consider.  It begs injustice for a court to consider depositions but not affidavits, or vice versa.  This is especially true when the Missouri court decides to limit before seeing the evidence.  Also, such rulings would fundamentally change the nature of depositions.  Deposition is not trial testimony.  It is a way to discover and preserve testimony.  The Lee’s Summit personal injury attorneys for the auto accident producing a witness need not explain during the deposition every potential admission given during a rebuttal.  That is for trial.  In addition, by limiting summary judgment evidence to only deposition testimony, the party who produced the witness (who didn’t take his own client’s deposition and must rely on affidavits) is prejudiced.

CONCLUSION

For the above and foregoing reasons, the judgment of the circuit court should be reversed.

Respectfully submitted,

HAMILTON & ASSOCIATES, P.C.

_______________________________

MATTHEW J. HAMILTON              #48546

216 N. Highway 7

Post Office Box 215

Pleasant Hill, MO 64080

(816) 540-4040

Fax: (816) 540-3147

www.law-kc.com

PERSONAL INJURY ATTORNEYS FOR AUTO ACCIDENT APPELLANTS

DAN JACKSON AND RHONDA JACKSON

CERTIFICATE UNDER RULE 84.06

Pursuant to Rule 84.06(c) of the Missouri Rules of Civil Procedure, undersigned counsel certifies that this brief complies with Rule 55.03 and complies with the limitations in Rule 84.06(b).  This brief contains 6,435 words, exclusive of the items listed in Rule 84.06(c).  It was prepared using Microsoft Word.

Dated October 29, 2010.

Respectfully submitted,

HAMILTON & ASSOCIATES, P.C.

_______________________________

MATTHEW J. HAMILTON              #48546

216 N. Highway 7

Post Office Box 215

Pleasant Hill, MO 64080

(816) 540-4040

Fax: (816) 540-3147

www.law-kc.com

PERSONAL INJURY ATTORNEYS FOR LEE’S SUMMIT AUTO ACCIDENT

APPELLANTS DAN JACKSON AND RHONDA JACKSON

CERTIFICATE OF SERVICE

I hereby certify that two copies of Appellant’s Brief required by Rule 84.05(a), and one copy of the brief in compact disk for has been filed, which counsel certifies has been scanned for viruses and is virus-free, were mailed first-class postage pre-paid this 25th day of October, 2010:

FIRM # 1

1001 E. 101st Terrace

Kansas City, MO 64131

PERSONAL INJURY ATTORNEYS FOR LEES SUMMIT AUTO ACCIDENT DEFENDANT CARRIE BEST

FIRM # 2

5350 College Boulevard

Overland Park, KS 66211-1633

AUTO ACCIDENT LAWYERS FOR LEES SUMMIT PERSONAL INJURY DEFENDANT JERRY CASS

FIRM # 3

9233 Ward Parkway

Kansas City, MO 64114

PERSONAL INJURY ATTORNEYS FOR LEES SUMMIT AUTO ACCIDENT DEFENDANT RANDALL SUMMIT

FIRM # 4

9200 Ward parkway

Kansas City, MO 64114

LEES SUMMIT AUTO ACCIDENT LAWYERS FOR PERSONAL INJURY DEFENDANY AMY LEES

____________________________________

Lee’s Summit personal injury attorneys for auto accident Appellants Dan & Rhonda Jackson


[1] The Supreme Court in Offenbacker v. Sodowsky, 499 S.W.2d 421, 423-24 (Mo. 1973) found that it is immaterial that the Lee’s Summit auto accident Defendant’s automobile was not the only automobile in the Lees Summit auto accident. Causation is established when Defendant’s actions were either a concurrent or successive cause of plaintiff’s Lee’s Summit personal injury.  See also Glick v. Ballentine Produce Incorporated, 396 S.W.2d 609 (Mo. 1965).

Lees Summit personal injury, Personal injury auto accidents l Comments Off on Lee’s Summit Personal Injury Attorneys Win Large Victory in Auto Accident Case – Draft of the Appellate Brief

Lee’s Summit Wrongful Death Products Liability Lawyer – Case Analysis – Defective Exploding Steel Drum

Lee’s Summit wrongful death lawyers and personal injury attorneys will benefit from the following case and legal analysis memorandum.

This document analyzes a Lee’s Summit products liability lawsuit from the perspective of the defending manufacturer, which designed and build the product that killed its user.

Identifying information has been changed to protect the privacy and identity of those involved.

Supplemental Case Analysis

and

Integrated Defense Plan Supplement

To

Darwin Baker

Office

Independence, MO

Date

8/16/10

Claim File No.

FCC80123695

Case Title

Hardon v. Lee’s Summit

Reported By

Matt Hamilton

Next Conference Target Date

8/28/10

Estimated Legal Expense Range

$75,000 – $100,000

Estimated Verdict Value Range

$1.7 to $3.4 million

Estimated Settlement Value Range

$700,000 to $1,200,000

 

LEE’S SUMMIT PERSONAL INJURY-WRONGFUL DEATH LAWYER

CASE ANALYSIS

1.         Statement of Facts by our Lee’s Summit wrongful death law firm:

 

This is a Lee’s Summit wrongful death, products liability action filed in the Circuit Court of Jackson County, Missouri at Independence.  Plaintiffs are the wife and two minor children of Darryl “Hardon,” the decedent.  Lee’s Summit Marketing & Manufacturing makes and distributes products for the concrete industry.  The products liability accident and wrongful death occurred on April 9, 2008, in the Lee’s Summit, Missouri area, at Summit Cement Contracting Co., the decedent’s employer.  Hardon was using an acetylene torch on a 55-gallon metal drum, which had contained Lee’s Summit product WC-50, in order to cut the bottom off of the drum in order to make storage barrel.  The drum exploded, blowing the bottom of the drum off, which struck Hardon in the head, resulting in his wrongful death.  A worker’s compensation claim was filed against decedent’s employer as a result of the incident.  The exact amount of the worker’s compensation carrier’s lien at this time is unknown, as monthly payments are continuing to be made.  The Lee’s Summit wrongful death lawyer is seeking damages for economic loss, and loss of services, consortium, companionship, guidance and training for the family.

Plaintiffs’ Lee’s Summit wrongful death petition contains five counts:

1.         Negligent failure to warn of danger of cutting metal drum by way of heat or   flame;

2.         Strict liability failure to warn of danger of cutting metal drum by way of heat or flame;

3.         Negligent design – failure to use ordinary care to design a safe and appropriate container for the Lee’s Summit WC-50;

4.         Strict products liability design against defect – the Lee’s Summit WC-50 was in a defective condition when put to a reasonable anticipated use because the 55-gallon drum was not a safe and appropriate container for the container; and

5.         Negligent failure to reclaim drums.

2.         Assessment of Liability by our Lee’s Summit personal injury lawyer:

 

Liability is questionable, and a jury could return a complete defense verdict.  The focus of plaintiffs’ case is that Lee’s Summit failed to place a label on the drum warning not to use a cutting torch on the drum.  It does not appear that any government regulation or industry standard required a warning on this water-based product.  Not only does it appear a warning label was neither required nor justified, it appears a label would not have affected the wrongful death victim’s behavior.  Plaintiffs’ products liability experts are not particularly strong.  Further, even if Lee’s Summit were to be assessed some percentage of fault, it appears a significant percentage of fault should be assessed to the wrongful death decedent.

Nevertheless, it does appear that plaintiffs will make a submissible case on some counts of their Lee’s Summit wrongful death petition.  Plaintiffs’ counsel will argue a simple, inexpensive warning would have prevented this accident.  Further, they will argue there is a presumption decedent would have followed the warning, and the jury will undoubtedly feel sympathy for the widow and two teen-aged daughters

Because this case is pending in the Circuit Court of Jackson County, Missouri at Independence, Missouri comparative fault law, and the Missouri wrongful death statutes will most likely apply since the personal injury and wrongful death occurred in Missouri.  Under Kansas choice of law analysis, which applies since the case could have been pending in a Kansas court, the site of the injury determines the governing substantive law.  Brown v. Kleen Kut Mfg. Co., 714 P.2d 942 (Kan. 1986); Ling v. Jan’s Liquors, 703 P.2d 731 (Kan. 1985); McDaniel v. Sinn, 400 P.2d 1018 (Kan 1965).  This is significant because Missouri tort and comparative fault law in the Circuit Court of Jackson County, Missouri at Independence is more favorable to the plaintiffs than Kansas tort and comparative fault law.  Kansas employs modified comparative fault, while Missouri employs pure comparative fault.  Also, the Missouri wrongful death statutes do not contain the caps on recovery that the Kansas wrongful death statutes contain.  Our Lee’s Summit wrongful death lawyer has filed a motion asking the court to apply Missouri substantive law, and the motion will be heard on September 1, 2010.  However, based upon the aforementioned appellate decisions and trial court rulings I have received in other Jackson County cases on this issue, I very much expect the court will deny our motion and apply Missouri substantive law.

Our Lee’s Summit wrongful death law firm has filed a motion for partial summary judgment to dismiss the design defect claims and drum reclamation claim.  While we do have strong arguments to dismiss these claims, the Lee’s Summit wrongful death plaintiffs’ strongest claims, which are the failure to warn claims, will almost certainly be submitted to the jury.  This motion will also be heard on September 1, 2010.

 

3.         Assessment of Damages by our Lee’s Summit personal injury lawyer:

 

Decedent was 36 years old at the time of his death, and was making between $57,000.00 and $62,000.00 for the three years preceding his wrongful death.  He is survived by a young wife and two teen-aged daughters.  Decedent’s widow makes a good appearance as a witness.  Plaintiffs’ economist places the amount of economic loss to the survivors at $1,087,750.00.  As set forth above, it appears that the Missouri wrongful death statutes will apply, and these statutes do not cap damages for either economic or non-economic loss.

On the positive side, the wrongful death decedent died shortly after the accident and appeared never to have regained consciousness, so the amount of medical bills is under $10,000.00 and there does not appear to be a legitimate claim for pain and suffering.  Further, Lee’s Summit is based in Jackson County and the jury may be hesitant to award a large amount of damages against a local company, especially when the decedent appears to be primarily if not entirely at fault for the Lee’s Summit wrongful death accident.  However, the “home town” effect may be defeated by sympathy for the surviving family.

4.         Verdict Value Discussion by our Belton Raymore Personal Injury Lawyer:

I expect that a gross verdict would range from $1.5 million to $3 million.  Although I believe it would be unlikely that the gross verdict would exceed $3 million, there is a small possibility of this happening.  The gross verdict would be proportionately reduced by decedent’s fault.  I believe that decedent’s fault will help to hold down the amount of the gross verdict.  However, it is difficult to predict the amount of a verdict in a Lee’s Summit wrongful death case.  If we assume the jury assesses 50% of the fault to the decedent, we can be assured that the gross damages before assessment of fault will be at least the economic loss of $1,087,750 and a net verdict of approximately $500,000 will result.  Unfortunately, if the jury finds damages it will undoubtedly assess not only economic damages but also non-economic damages which are not capped under Missouri law.  Thus, in my opinion, unless we get a complete defendant’s verdict, you are looking at a minimum net verdict in the $500,000 to $1,500,000 range, assuming a 50% fault assessment.

5.         Settlement Value Discussion by our Lee’s Summit wrongful death lawyer:

 

There is a fair probability of obtaining a complete defense verdict, and plaintiffs’ wrongful death lawyer is aware that if he tries this case he might walk away with nothing.  Further, even if plaintiffs were to obtain a verdict against Lee’s Summit, we expect that a significant percentage of fault would be assessed against the wrongful death decedent.  We certainly can use these factors as settlement leverage.

On the other hand, the plaintiffs will almost certainly get to the jury on some of their claims.  Further, the potential gross verdict is substantial, and the net judgment could be significant even if a large percentage of fault were assessed to decedent.

A complicating figure is the worker’s compensation lien.  It appears that the lien for past and future payments will be in the range of $200,000.00 to $400,000.00.  So far, the worker’s comp carrier has been unwilling to negotiate down its lien, apparently wanting to wait until the parties in this third-party case engage in serious settlement discussions.  The worker’s comp carrier should be willing to compromise a portion of its lien in order to settle the case, because if plaintiffs lose it will not get back any of its payments to the widow.  We believe that the worker’s comp carrier should participate in mediation, either by having a representative present in person or by having a claims handler with authority available by telephone.

Taking into account the worker’s comp lien and the potential verdict, I believe that it will take between $500,000 and $1,000,000 to settle this case.  Under all the circumstances, I cannot say that a settlement in the $700,000 to $1,250,000 range is unreasonable.  While it is entirely possible that plaintiffs would settle for an amount near the mid-point of that range, reaching such a settlement may be problematic if the work comp carrier will not compromise.

INTEGRATED DEFENSE PLAN SUPPLEMENT

BY LEE’S SUMMIT PERSONAL INJURY LAW FIRM

 

6.         Agreed Case Strategy:

 

a.         Case Direction: Prepare case for successful mediation.  If mediation is not successful, prepare case for trial.

b.         Negotiations: Plaintiffs have made $1 million demand, no offer has been made.

 

c.         Timing: Mediation scheduled for August 28, 2010, trial scheduled for September 18, 2010.

 

 

 

 

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____________________________

Attorney of Record                                                  Date

Assigned Claims Representative                        Date

#71124781

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Lee’s Summit Products Liability Wrongful Death Lawyer – Examplar Motion for Summary Judgment on Failure of Expert Testimony

Lee’s Summit products liability lawyers should find this legal document especially helpful.  It is an excellent example of a “Motion for Summary Judgment.” This type of legal pleading seeks to have some or all of a claimant’s lawsuit dismissed on legal grounds.

Such a “dispositive motion” requires that there be no significant debate regarding the facts at issue in the motion.  It seeks to win based on undisputed facts, relying upon the Court’s interpretation of the law.

In this motion, the names of the parties, the jurisdiction and several other facts have been changed to protect the privacy and identity of those involved.    Please remember that non-lawyers should not use this document for legal purposes as it brings up issues, legal authority and other matters that will vary from case to case.  It is a specific document for a specific purpose.  Questions regarding it should be directed to the Cass County personal injury lawyers of Hamilton & Associates, 816-540-4040.

IN THE DISTRICT COURT OF JACKSON COUNTY, MISSOURI

AT INDEPENDENCE

TERESA HARMANN, as the wife of

Decedent Darryl Harmann, TOMMIE JOE

HARMANN, as the natural daughter of

Decedent Darryl Harmann, and TINA NICHOLE

HARMANN, as the natural daughter of Darryl

Harmann, Plaintiffs,

v.

Case No.:  2009 CV 3598, Chapter 60

CONVEX

MANUFACTURING CO., INC., Defendant.

DEFENDANT’S MEMORANDUM IN SUPPORT OF

MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF’S COUNTS III, IV , AND V

 

STATEMENT OF THE CASE:

This is a Lee’s Summit wrongful death products liability lawsuit brought by the family of the wrongful death victim.  They are represented by their personal injury attorneys.

On or about April 9, 2008, the decedent Darryl Harmann (“Harmann”), who is alleged to have been an employee of Vex Cement Contracting Company in Lee’s Summit Missouri, allegedly applied an acetylene torch to a 55 Gallon Metal Drum, which is purported to have contained the substance WC-50.  Allegedly, during the application of Harmann’s acetylene torch, the 55 Gallon Metal Drum exploded, causing death to Harmann.  (Uncontroverted Fact #12).

In August of 2009, three parties (“plaintiffs”) purporting to be authorized on behalf of Harmann, brought a five (5) count petition for damages against defendant Convex Manufacturing Co, Inc.  (See Uncontroverted Fact #12).  The substance of plaintiffs’ counts are:  Negligent Failure to Warn, Strict Liability Failure to Warn, Negligent Design, Strict Liability Design Defect and Negligent Failure to Reclaim Drums. (See Uncontroverted Fact #12).

During the course of the above mentioned litigation, plaintiffs have provided the proposed expert opinions of William Yearwood and Robert Koonz. (See Uncontroverted Fact #12).  Both proposed experts have been deposed by defendant.

After reviewing plaintiffs’ proposed experts and the substance of their claims, defendant now moves for summary judgment on Counts III, IV and V of plaintiffs’ petition for damages.

ARGUMENTS AND AUTHORITIES:

A. STANDARD FOR SUMMARY JUDGMENT:

The Lee’s Summit products liability wrongful death plaintiffs have failed to provide evidence to support a finding as a matter of law with regard to Counts III, IV and V of their petition, therefore, partial summary judgment should be granted in favor of defendant.  “Summary Judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  Estate of Brodbeck v. James, 22 Kan.App.2d 229, 915 P.2d 145 (Kan.App.1996); K.S.A. § 60-256(c).

B. CHOICE OF LAW:

Defective design products liability Defendant contends that Missouri substantive law should apply for application by the Circuit Court of Jackson County, Missouri at Independence.  The Lee’s Summit wrongful death products liability Plaintiffs contend that Missouri substantive law applies.  No matter which state’s substantive law applies, Defendant is entitled to Summary Judgment on Counts III, IV and V.

C.        COUNT III-NEGLIGENT DESIGN – PRODUCTS LIABILITY:

Products liability Plaintiffs’ claim for negligent design is unsupported by opinions or factually determinative conclusions which could reasonably support a finding that defendant negligently designed its product WC-50.  Under the Missouri law of products liability negligent design:

A manufacturer has the duty to use reasonable care in the design of his products so that they will be reasonably safe for their intended use, including any emergencies of use, which can be reasonably anticipated.  A manufacturer is not, however, required to design products so that they are foolproof or capable of producing injury.  Neither is he required to incorporate only features representing the ultimate in safety in his design. Garst v. General Motors Corp., 207 Kan. 2, 3-4, 484 P.2d 47 (Kan.1971).  Likewise, Missouri law of negligent design is as follows:

The obligation that generates the duty to avoid injury to another which is reasonably foreseeable does not–at least yet–extend to the anticipation of how manufactured components not in and of themselves dangerous or defective can become potentially dangerous dependent upon the nature of their integration into a unit design, assembled, installed and sold by another.  Welsh v. Bowling Electric Machinery, Inc., 875 S.W.2d 569, 574 (Mo.App.1994).

The Lee’s Summit products liability wrongful death Plaintiffs have pled that defendant was negligent in the design and manufacture of the packaging of its product WC-50, which was enclosed in a 55 gallon metal drum that is alleged to have caused or contributed to the wrongful death of Harmann. (See Uncontroverted Fact #12).  The products liability plaintiffs have not provided any evidence that defendant has negligently designed its product WC-50 by violating its duty of reasonable care in designing its product.   (See Uncontroverted fact #s 3 and 9).

The Lee’s Summit products liability lawyer for wrongful death used highly qualified experts.  Plaintiffs first expert, William Underwood  (“Underwood”), who purports to be an expert in chemical engineering, has provided no testimony that would suggest that defendant has violated its duty of reasonable care in designing its product WC-50.  (See uncontroverted fact #9).  During deposition, Underwood verified that his testimony was limited to one sole opinion as it pertains to this case.  It was:

Q:  Okay.  So it would have been shortly after you visited the Vex plant that you confirmed the opinions that you intend to render at the trial of this case?

A:  Yes.

Q:  Okay.  List for me those opinions, if you will.

A:  I believe there was a chemical explosion as a result of using a torch on the drum.

Q:  Is that it?

A:  Yes.

Q:  Okay.  Don’t have any other opinions that you intend to render in this case other than the fact that there was a chemical explosion as a result of using a torch on the drum?

A:  Well, the – -what follows from that is that the explosion was – – generated so much pressure inside the drum that it blew the head off and, unfortunately, in flying off, it hit Mr. Harmann in the face and killed him.

(See Uncontroverted fact #s 7 and 8).  At no time during his deposition did Underwood establish, imply or suggest that the products liability defendant’s packaging of WC-50 was unreasonable or that the defendant was negligent in the packaging of its product in a 55 Gallon Metal Drum. (See Uncontroverted fact #9).  By Underwood’s own statements, his testimony was limited to his opinions as to the cause of the blast, more specifically, that a chemical explosion occurred. (See Uncontroverted fact #8).   Aside from issues as to whether Underwood’s testimony concluded that WC-50 was the source of the explosion, he never opined that it was unreasonable to package such products in a 55 Gallon Drum. (See Uncontroverted fact #9). Therefore, under its best light, Underwood’s testimony cannot support the requirements for a legal finding of negligent design to cause the Lee’s Summit wrongful death.

Moreover, the wrongful death products liability plaintiffs’ other proposed expert witness, Robert Koonz (“Coons”), does not help support their allegations that defendant negligently designed its product leading to products liability for the wrongful death.  Koonz testified that he is an expert in “human factors.”  (See Uncontroverted fact #s 1 and 2).  All of Koonz’ assumptions with regard to this case are reliant upon Underwood’s testimony as a chemical engineer, and that he is not making any conclusions as to WC-50 itself.  (See Exhibit B, p.67-68, ¶s 17-22 and 1-8).  While Koonz may have expressed his personal opinions as to many issues outside of his alleged expertise as a psychologist, he has not opined that the Lee’s Summit products liability wrongful death defendant had or breached its duty to use reasonable care when packaging WC-50 in a 55 Gallon Metal Drum.  (See Uncontroverted fact #3)  Further, Koonz made no such opinions because his alleged expertise did not allow it.  Arguably, Koonz’ alleged expertise is limited to whether the wrongful death defendant should have put labels on the 55 Gallon Metal Drum.  (See Exhibit B Generally).  But regardless of whether or not the Lee’s Summit products liability defendant’s failure to put labels on the drum was negligent or defective is irrelevant to the foregoing count for negligent product design.

Koonz has provided no testimony nor has the ability to do so with regard to negligent design of WC-50.  The Lee’s Summit wrongful death products liability attorney for plaintiffs has no evidence to support its allegations; therefore, he has put forward no evidence where a trier of fact could legally find in his favor.  In Missouri, two alternative tests may be applied to negligent design.  They are:

[A] product may be found defective in design if the plaintiff establishes that the product failed to perform safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.  Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in the design.   Lester v. Magic Chef, Inc., 230 Kan. 643, 651, 641 P.2d 353, 359 (1982).  In Missouri, “[i]n negligence cases the duty owed is based upon a foreseeable or ‘reasonable anticipation of harm or injury is a likely result of acts or omissions.'”  Blevins v. Cushman Motors, 551 S.W.2d 602, 607 (Mo.1977); citing Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623, 628 (1939) (Citations Omitted).

Neither of plaintiffs’ Lee’s Summit products liability wrongful death experts have provided nor could they provide any credible expert testimony that would support any conclusions that the defendant’s products liability design failed to perform in the manner as described above or that the benefits of the challenged design outweighed the danger of inherent risk in the design.  (See Uncontroverted fact #s 3 and 9).  The only opinion that Underwood provided was that a chemical explosion occurred, causing the Lee’s Summit wrongful death to the subject party.  (See Uncontroverted fact #8). Even if we were to assume the alleged “explosive” substance did in fact result in the Lee’s Summit wrongful death from products liability defect as alleged, he provided no opinion that would suggest that the product in question was in fact negligently designed. (See Uncontroverted fact #9)

Moreover, the Lee’s Summit wrongful death plaintiffs other proposed expert, Koonz, provided no testimony nor could he provide any testimony that would support plaintiffs’ position that the defective product was negligently designed.  (See Uncontroverted fact #s 1, 2 and 3).  The substance and arguable expert credibility of Koonz rested in the psychology or human factors of labeling.  (See Uncontroverted fact #s 1 and 2).  Koonz is not in a position to provide expert testimony on the uses of acetylene cutting torches.  (See Uncontroverted fact #s 1 and 2).  Koonz is not a products liability design expert, therefore, any conclusions he may purport to assume are admitted to have been reliant upon the testimony of Underwood and are outside Koonz’ area of expertise.  Further, assuming arguendo that Koonz’ reliance on Underwood’s testimony is acceptable; he can only rely on such testimony as to the extent provided by Underwood.  We know Underwood’s testimony is limited to his opinion that a chemical explosion was the cause of the accident and resulting Lee’s Summit wrongful death.  (See Uncontroverted fact #8).   Therefore, any conclusions or inferences that Koonz makes with regard to foreseeability of this design (which he did not actually do), are beyond the area of expertise to which he purports to rely.

In summary, neither of the Lee’s Summit wrongful death attorney’s experts or the Harrisonville products liability lawyer made any conclusions that would support their claim for negligent design.  Thus, summary judgment on Count III is appropriate.

D.        COUNT IV-STRICT PRODUCTS LIABILITY-DESIGN DEFECT:

The Lee’s Summit wrongful death lawyers made Plaintiffs’ claim for negligent design is unsupported by opinions or factually determinative conclusions which could reasonably support a finding that wrongful death defendant’s product WC-50 left the seller in an unreasonably dangerous condition to the consumer.  “A product is ‘defective’ when it leaves the seller’s hands in a condition not contemplated by the ultimate consumer and as a consequence of such condition will be unreasonably dangerous to the consumer.”  Jenkins v. Amchem Products, Inc., 256 Kan. 602, 632, 886 P.2d 869 (Kan.1994); citing Lenherr v. NRM Corp., 504 F.Supp. 165, 172 (D.Kan.1980); Restatement (Second) of Torts § 402A, comment g (1965).  “In order to recover under a strict liability theory in a products liability case, a wrongful death plaintiff must prove, among other things, that ‘[t]he product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold.'” Welsh v. Bowling Electric Machinery, Inc., 875 S.W.2d 569, 571 (Mo.App.1994); RSMo § 537.760.

Not unlike the claims of the Harrisonville wrongful death attorney for negligent design, the experts for the Lee’s Summit wrongful death attorney provided no testimony to support a strict liability products defect theory.  (See Uncontroverted fact #s 3 and 9). Neither Underwood or Koonz ever testified in any capacity that the subject WC-50 was an inherently dangerous product. (See Uncontroverted fact #s 3 and 9). Aside from the fact that Koonz had no expertise to make such a conclusion, Underwood, the products liability expert most arguably in a position to make such an opinion, did not in fact do so. (See Uncontroverted fact # 9).  Not only could neither expert conclude from first hand knowledge that the WC-50 in question was the sole substance contained in the subject 55 Gallon Drum, but their opinions in no way conclude that the product as produced by defendant, and when it left the manufacturer, was in a defective condition and thus faces wrongful death products liability in Lee’s Summit.  Underwood can only conclude there was a “chemical” explosion. (See Uncontroverted fact #8).   Koonz’ opinion is not even relevant to whether the product itself was defective.

But aside from the purported expert opinions, which have essentially concluded nothing with respect to strict liability of products liability design defects, the wrongful death defendant is not under a duty to ensure that the product be “bullet proof.”  “[I]t should be clear that the products liability manufacturer is not an insurer for all injuries caused by his products.”  Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 375 (Mo.1986); citing The Ways and Meanings of Defective Products and Strict Liability, Roger Traynor, 32 Tenn.L.Rev. 363 (1965); see also Baker v. International Harvester Co., 660 S.W.2d 21, 23 (Mo.App.1983) (noting manufacturer does not have a duty to design accident proof product);  Rogers v. Toro Manufacturing Co., 552 S.W.2d 632, 637 (Mo.App.1975) (noting strict tort products liability does not mean absolute liability).   Under the above cited cases, even if WC-50 as packaged in a 55 Gallon Drum in Lee’s Summit exploded and caused the Lee’s Summit wrongful death as described by plaintiff, this does not mean that a trier of fact could infer that the product was unreasonably dangerous and therefore defective.  One can imagine a number of products which could result in severe personal injury or wrongful death if used under certain circumstances.  But this does not create a presumption that the product is inherently dangerous or defective.

Given the legal basis for strict products liability in product design, the Lee’s Summit wrongful death lawyer through his products liability plaintiffs failed to provide any testimony from their products liability experts which would give rise such a claim.  Therefore, because they have failed to meet the necessary legal requirements, partial summary judgment on Count IV of plaintiffs’ petition is appropriate.

E.        COUNT V-NEGLIGENT FAILURE TO RECLAIM DRUMS:

The Lee’s Summit products liability lawyer failed to establish a duty under law whereby they could recover under a their theory of negligent failure to reclaim drums, therefore, summary judgment should be granted on this count.  “Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs.”  Lay v. Missouri Dept. of Transp., 23 Kan.App.2d 211, 214.  “Whether a duty exists is a question of law.  Whether the duty has been breached is a question of fact.”  Id. at 215.  “Actionable negligence involves three elements, which are:  (1) an existence of a duty on the part of defendant to protect plaintiff from injury, (2) failure of defendant to perform that duty, and (3) injury to plaintiff as a result of such failure.  Failure of evidence to prove any one of those three elements defeats the negligence claim.”  Wise v. Sands, 739 S.W.2d 731, 733 (Mo.App.1987).

The substance of plaintiffs’ Lee’s Summit wrongful death products liability action is with regard to defendant’s alleged negligent failure to reclaim the 55 gallon drums which were put in the stream of commerce to package its product WC-50.  This products liability Defendant has found no such case in Kansas or Missouri which in any way suggests that a product manufacturer has a duty to reclaim the 55 Gallon drums sold with its product.  This not only includes 55 gallon drums with products not inherently dangerous in nature, but this also includes such products which are readily known to be dangerous and harmful with its normal and intended use.  Because neither Kansas nor Missouri recognizes the existence of such a duty, the Circuit Court of Jackson County, Missouri at Independence should grant partial summary judgment on this Count of plaintiff’s products liability wrongful death petition.

Moreover, the plaintiffs’ Lee’s Summit products liability law firm drafted a petition that alleges that defendant was negligent for failing to use ordinary care to institute a drum reclamation program where the purchaser is “encouraged” to return the metal drums after use of the contents.  (See Uncontroverted fact #12).  Defendant does not have title to the 55 gallon drums after they have been sold and placed into the stream of commerce.  Hence, they have no legal right to require purchasers to return the drums.

The Lee’s Summit wrongful death lawyer suggests that defendant is required by duty to create a voluntary program of reclamation, which defendant can in no way enforce, has significant causal problems as well.  Even if the wrongful death defendant had such a program, which encouraged its subsequent purchasers to return the metal drums after they were emptied, it cannot be concluded that such contributed the wrongful death of Harmann under the set of facts known thus far.  First of all, the purchaser could have completely ignored defendant’s hypothetical program.  If the same personal injury occurred from the same set of facts and circumstances with the existence of a reclamation program, the products liability defendant will be no more or less liable than is alleged in the present Lee’s Summit wrongful death products liability lawsuit.  The products liability plaintiffs cannot reasonably state that if “not but for” defendant’s failure to have a reclamation program, this personal injury would have been prevented.  The obvious is that even with such a program, the personal injury may not have been prevented.  Hence, the reality is that plaintiffs cannot make a reasonable causal connection between defendant’s failure to have a reclamation program and the accident’s final result (the wrongful death).

But more importantly, neither of the experts retained by the victim’s Belton Raymore wrongful death lawyer have the expertise or the substantive opinions to support plaintiffs’ assertion that defendant had a duty to provide a voluntary reclamation program for its used 55 gallon metal drums.  (See Uncontroverted fact #s 4, 5, 10 and 11).  Plaintiffs’ first products liability expert, Underwood, who purports to be an expert in the field of chemical engineering, could not substantiate any scientific or expert opinion that would support plaintiffs’ assertions with regard to negligent failure to reclaim the 55 gallon metal drums. (See Uncontroverted fact #10).  More specifically, when Underwood was addressed in deposition about the issue, here were some of his responses:

Q:  Okay.  Are you aware of any rule, regulation, statute or law that requires companies that sell lacquer or any other product that might be contained in a barrel or a drum to retain ownership of the drum and retrieve it as you have opined that the lacquer manufacturer should have done?

A:  I don’t know that it’s a law, but I know that it is done.

Q:  Give me some examples of companies that you know that do that.

A:  I don’t know of any offhand.

(See Uncontroverted Fact #10).  Moreover, Underwood’s entire expert opinion that the Lee’s Summit products liability defendant had a duty to institute a reclamation program of sold 55 gallon metal drums relied completely upon a single article he purports to have read in passing.  However, Underwood could not remember anything about the article other it suggested that reclamation programs were appropriate. (See Uncontroverted fact #10). Further, Underwood never produced the article. Counsel stipulated during deposition that the article would not be relied upon at trial if it were not produced within one week of defendant’s expert deposition.  (See Exhibit C, p.38.)  Therefore, because Underwood could not even produce the lone article upon which his Lee’s Summit products liability expert opinion relied to assert that defendant had a duty to organize a reclamation program, Underwood’s testimony or opinions are not relevant and could not reasonably support a finding of a duty on part of the defendant, much less a breach of that duty. (See Uncontroverted fact #s 10 and 11).  Further, Underwood’s testimony in no way supports any proposition that defendant’s actual failure to reclaim or institute a reclamation program proximately caused the subject Lee’s Summit wrongful death accident. (See Exhibit C Generally).

And finally, plaintiffs have also offered the testimony of Koonz, a proposed expert in the “human factors” and psychology of warning labels. (See Uncontroverted fact #s 1 and 2).  However, Koonz has suggested throughout his deposition that the Lee’s Summit products liability defendant should have been engaged in a reclamation program for emptied 55 gallon metal drums.  (See Exhibit B Generally).  Although, when specifically asked about his sources to which he relied, he responded:

Q:  This barrel reclamation program, is that set forth in the ANSI standards?

A:  No, sir.

Q:  Is it set forth in any standard?

A:  Not that I am aware of.

Q:  Is it set forth in any regulation?

A:  Not that I know of.

Q:  Any statute?

A:  Again, I’m not aware of any.  Its an act of viable business today and has been for a long time. That is certainly the way to deal with hazardous drums that have been commercially emptied.

(See Uncontroverted fact # 4).  Essentially, Koonz has admitted in his deposition that he has no real authority to rely upon his opinion that defendant should have engaged in a reclamation program.  Like Underwood, Koonz did not testify or opine at any time during deposition that defendant’s alleged failure to reclaim the subject drum was the proximate cause of the subject Lee’s Summit wrongful death products liability accident.  (See Exhibit B and C Generally).  Hence, Koonz’ testimony does not support Count number V of the petition of their Lee’s Summit wrongful death lawyer.

In conclusion, the plaintiffs have provided no evidence or expertise which supports a duty on part of defendant to have implemented a reclamation program.  Furthermore, the plaintiffs have provided no evidence or expertise which supports the necessary causal connection between defendant’s alleged failure to reclaim and the accident.  For these reasons, this Court should grant partial summary judgment in favor of defendant on Count V of the petition of their Lee’s Summit wrongful death lawyer.

Respectfully submitted,

Matt Hamilton

Hamilton & Associates,Lee’s Summit products liability wrongful death lawyers

216 North State Route 7

Pleasant Hill, Missouri  64080

(816) 540-4040

Fax (816) 540-3147

ATTORNEY FOR DEFENDANT

CONVEX MANUFACTURING CO.

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the above and foregoing was sent via facsimile and mailed, postage prepaid,

this 8th day of August, 2011, to the following:

Robert A. Herron

SMITH, WARD & BRANDY, LLC

2600 Grand Boulevard, Suite 800

Lee’s Summit, Missouri  64063

Thomas E. Schwartz

HOLLORAN & SCHWARTZ

906 Olive Street, Suite 1200

Lee’s Summit, Missouri  63081

ATTORNEYS FOR PLAINTIFFS

MJH: #7015484

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Auto Accident in Lee’s Summit – Lawyer Trial Report of Personal Injury Claims to Insurer

Lee’s Summit auto accident lawyers with personal injury car accident cases should benefit from the following example auto accident trial report.  This is an adapted trial report to a major insurance company.  It is a detailed pre-trial analysis of the facts, law and analysis of a personal injury lawsuit about to go to trial in the Circuit Court of Jackson County, Missouri at Independence.  Names and identifying information have been changed to protect the privacy of those involved.

This will give the reader an idea of the perspective of an insurance defense personal injury attorney.  It will also give the perspective of the types of information, law and analysis insurance companies consider in valuing cases and deciding whether to go to trial or negotiate a potential settlement.  It gives an analysis of how cases are valued.  This should give great benefit for Lee’s Summit personal injury lawyers.

Pam L. Hamil, SCLA

THE INSURANCE GROUP

Lee’s Summit Personal Lines

P.O. Box 681

Lee’s Summit, MO 64063

Re:       Case Style:        John and Judy Kroitz v. Robert Harmon

Circuit Court of Jackson County, MO at Independence

Case No.:         CV-428-2763-CC

Claim No.:       958 AL 24704 and 698 AL 75547

Our File:          06126-25753

Dear Ms. Hamil:

AUTO ACCIDENT

TRIAL REPORT

Our Harrisonville personal injury attorneys have obtained additional x-ray films of John and Judy Kroitz that pre-date the subject loss.  Based upon Dr. Asher’s review of the x-rays before and after this Lee’s Summit auto accident along with the medical records, Dr. Asher will testify to reasonable degree of medical certainty that this automobile accident did not cause either Plaintiff to require surgical intervention.

We have now received all of John and Judy Kroitz’s billing records applicable to this Lee’s Summit automobile accident.  In total, John Kroitz has accrued $32,992.61 in medical bills and his wife Judy Kroitz has accrued $41,585.30 in medical bills.  Below, we have set forth our analysis of Plaintiffs’ claims and the potential verdict ranges for the same.

The Subject Lee’s Summit Automobile Accident

On July 12, 2006, the date of this accident, Robert Harmon, was exiting the Dairy Queen on King Hill Avenue in Lee’s Summit, Jackson County, Missouri.  Plaintiffs were crossing the street to enter the Dairy Queen.  Plaintiffs entered the road from a stop sign across the street from the Dairy Queen and Robert Harmon entered the road from the Dairy Queen parking lot.  Neither car could have traveled any more than 10 to 20 feet before the personal injury auto accident.  In addition, Mr. Harmon testified that he was traveling at no more than 5 miles per hour at the time of the impact.  Therefore, this was a low speed/low impact automobile accident.

As you are aware, Robert Harmon received and pled guilty to careless and imprudent driving in Lee’s Summit Municipal Court for this car accident.  He failed to hire a Lee’s Summit criminal defense lawyer.  In addition, the testimony of both Robert Harmon and the Kroitzs as to how this car accident occurred is very similar.  Given the fact that the liability of Robert Harmon is pretty clear cut, the defense of this matter lies in disproving the extent of personal injuries and/or damages claimed by the Kroitzs.

John Kroitz’s Personal Injury Claim

Our Cass County auto accident lawyers discovered the Kroitzs both have a history of back problems.  Mr. Kroitz underwent major back surgery (lumbar laminectomy) in the early 1970’s.  His medical records also reflect that in 1992 he fell and suffered pain in the right portion of his back.  In 1993, Mr. Kroitz suffered another back injury and was diagnosed with having cervical and upper thoracic spine sprains.  Approximately one year before this Lee’s Summit auto accident occurred, Mr. Kroitz reported to his doctor that he had been stiff all over his body for at least 3 to 4 years prior to his visit and Mr. Kroitz characterized his own health as poor.  In short, Mr. Kroitz has previously injured his lumbar, cervical and thoracic spine.

After the subject Lee’s Summit auto accident occurred, the Kroitzs continued on their way to a fishing trip.  Mr. Kroitz contends that he experienced pain in his neck and shoulders that weekend.  Shortly thereafter, Mr. Kroitz visited Dr. Anderson complaining of pain in his chest, neck, shoulders and upper back.  Dr. Anderson diagnosed Mr. Kroitz with “Whiplash.”  In August 2006, Mr. Kroitz’s X-Ray’s revealed that he had a lumbar and cervical sprain.  Mr. Kroitz’s September 2006 MRI revealed that he had a focal posterior disc herniation of C5-6.  His medical records at that time further set forth that Mr. Kroitz was suffering from extensive degenerative changes in his lumbar spine area.  In January 2007, Mr. Kroitz underwent an anterior cervical discectomy and fusion of the C5-6 and C6-7.  Mr. Kroitz expressed that the surgery greatly improved, if not, alleviated his back pains.

Our neuroradiologist, Dr. Asher, has opined that the Lee’s Summit auto accident did not cause any acute personal injuries to John or Judy Kroitz.  Dr. Asher will testify within a reasonable degree of medical certainty that there is no objective evidence that the subject auto accident caused personal injuries to the plaintiffs.  Further, Dr. Asher will testify that the Plaintiffs’ medical records reflect that both have had chronic long-term problems.

In sum, Mr. Kroitz had a long history of back problems and Dr. Asher will testify that there is no evidence of an acute injury.  However, the disc herniation in the C5-6 area did not appear until approximately 2 months after the Lee’s Summit automobile accident.  Therefore, it will be difficult for us to prove to a jury that Mr. Kroitz’s condition was not worsened by this car accident.

Taking into account John Kroitz’s claimed medical specials in the amount of approximately $33,000, his history of back problems and the fact that this was a low speed/low impact automobile accident, the following verdict ranges our possible: $5,000 to $15,000 (low); $15,000 to $30,000 (mid-range); and $30,000 to $45,000 (high end).  We believe that a jury in the Circuit Court of Jackson County at Independence would most likely award an amount in the low to mid-range set forth above.  However, if the jury believes that all of John Kroitz’s medical damages resulted from this Lee’s Summit auto accident, then the verdict could exceed $45,000.

Judy Kroitz’s Personal Injury Claim

Mrs. Kroitz’s medical records indicate that she has suffered from back problems since the early 1980’s.  Beginning in 1983, Mrs. Kroitz’s medical records indicate that she was suffering from lower back pains.  In 1987, Mrs. Kroitz’s records indicate that she had degenerative arthritis, a lumbar sprain and cervical and thoracic pain.  In 1988, Mrs. Kroitz’s medical records reveal that she was suffering from right shoulder pain.  More recently, in 1991 and 1993, Mrs. Kroitz’s records show that she had lower back pain, right shoulder pain and cervical pain.

She currently has arthritis, diabetes, osteoarthritis, fibromyalgia and migraines that, according to the Pain Management Clinic, have affected her entire upper body for a number of years.  She has also been diagnosed with manic depressive disorder and has been under psychiatric care for some time.  Further, she suffers from obesity.  Arguably, the arthritis, obesity, osteoarthritis and fibromyalgia are causing her continuous complaints of pain, and not the subject Lee’s Summit auto accident.

Mrs. Kroitz claims that her back hurt immediately after the Lee’s Summit car accident.  Mrs. Kroitz’s medical records shortly after this auto accident show that she complained of headaches, neck and lower back pain and right shoulder pain.  Her x-rays revealed that she suffered a thoracic and lumbar sprain.  Mrs. Kroitz’s MRI’s indicated that she had minimal bulging at L5-S1.

From 2006 through 2008, Mrs. Kroitz’s doctors continuously recommended against surgery.  In 2008, Dr. Maeda indicated that the patient was overweight and that she did not have any significant changes since the Lee’s Summit auto accident in 2006.  Later that year, in August 2008, Mrs. Kroitz underwent a total anterior discectomy and fusion at L5-S1.  Mrs. Kroitz believes that the surgery has alleviated some of her pain.

In sum, Mrs. Kroitz had a long history of back problems and Dr. Asher will testify that there is no evidence of an acute injury.  However, the disc herniation in the L5-S1 area did not appear until after this Lee’s Summit automobile accident.  Although Mrs. Kroitz had a herniated disc after this car accident, her Doctor discouraged the subject surgery, because of the minimal bulging and the fact that Mrs. Kroitz was overweight. Consequently, although the car accident arguably worsened Mrs. Kroitz’s condition, the surgery was probably not necessary.  Instead, Mrs. Kroitz should have been on a diet program to lose weight.

Taking into account Judy Kroitz’s claimed medical specials in the amount of approximately $42,000, her history of back problems and the fact that this was a low speed/low impact automobile accident, the following verdict ranges our possible: $5,000 to $15,000 (low); $15 to $30,000 (mid-range); and $30 to $50,000 (high end).  We believe that a jury in the Circuit Court of Jackson County at Independence would most likely award an amount in the low to mid-range set forth above.  However, if the jury believes that all of Judy Kroitz’s medical damages resulted from the Lee’s Summit auto accident, then the verdict could exceed $50,000.

Likelihood that this Personal Injury Auto Accident Lawsuit Could Settle

for an Amount Below Policy Limits

It is our understanding that your insured’s policy limit is $300,000 per occurrence, and $100,000 per person.  Therefore, your policy limit is $100,000 for John Kroitz and $100,000 for Judy Kroitz.  Although Plaintiffs have not made a demand in this matter to date, we have spoken with Plaintiffs’ Harrisonville, MO auto accident lawyer about how much he thinks his clients will be demanding.  Plaintiffs’ personal injury attorney has indicated that he believes that his clients would accept a joint offer of approximately $60,000.  Based upon that conversation with Plaintiffs’ counsel, it is our impression that this matter could settle for an amount below the policy limit.  We will continue to press the Plaintiffs for a written demand and will provide you with the information as soon as it is available.

Jurisdiction and Judge

Judge Robert is known to be a fair-minded Judge and is not known to favor Plaintiffs or Defendants.  As you are aware, this matter is going to be tried in the Circuit Court of Jackson County, Missouri at Independence, which is for the most part a blue-collar area.  Lee’s Summit is a relatively conservative venue that generally does not see very large verdicts on personal injury automobile accident cases.

Our client, Robert Harmon, is a former postmaster from that area and is an extremely likable person.  We believe that the Jackson County jury will be able to identify with our client.  On the other hand, the Kroitzs come across as dishonest and appear to be trying to make a big case out of a little car accident.  The jury will most likely scrutinize the Kroitzs’ claims and may not be able to identify with them as well as Mr. Harmon.

Percentage of Chance that this Matter will go to Trial

This case is specifically set therefore unless settled it will go to trial on October 10, 2011.

I hope that this will assist you in your evaluation of this Lee’s Summit personal injury auto accident lawsuit.  We have recently spoken with Plaintiffs’ Harrisonville personal injury attorney about his clients’ demand in this matter.  Plaintiffs’ counsel indicated that he is currently working on the demand and will forward it to our offices shortly.  As soon as we receive Plaintiffs’ demand, we will inform you of the same.

Very truly yours,

Matt Hamilton, personal injury attorney

matthamilton@law-kc.com

MJH/mb

cc:        Robert Harmon

mb:#717456855

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Lee’s Summit Wrongful Death Auto Accident Attorney – Trucking Accident – Perspective of an Insurance Claims Adjuster on Deposition Testimony

Lee’s Summit Auto Accident Lawyers representing victims of Jackson County, MO car accidents will benefit from this post.  It is intended for that purpose. Identifying information has been changed to protect the identity of the persons and entities involved.

This is a status letter from an insurance defense automobile accident attorney in Lee’s Summit to a Senior Claims Adjuster analyzing deposition testimony.  This should give Lee’s Summit personal injury attorneys perspective on the areas analyzed and the point of view of the insurer.

The analysis herein should not be applied to any other Jackson County auto accident as the facts will differ and the law may have changed.  Specific analysis should be directed to our Cass County personal injury lawyers at 816-540-4040.

September 20, 2010

Mr. Albert Mueller

Lincoln Ins. Co.

9 Jackson County Street

Lee’s Summit, MO  64063

Re:    Case Style:         Thompson v. Elmer Kenneth & Summit Trucking

Case No.: 00-CV-212552

Circuit Court of Jackson County, Mo at Independence.

Our File No.:       09278-22458

Claim No.:          I 12549161

Dear Mr. Mueller:

The deposition of Eddie Gifford, witness to the Lee’s Summit auto accident in this matter, was recently taken.  This letter sets out Mr. Gifford’s testimony and analyzes its significance to this case.  Following the Gifford summary is a summary of the special damages evidence revealed by discovery so far.

EDDIE GIFFORD

Mr. Eddie Gifford is a fifty-five year old man that lives in Lee’s Summit, Missouri.  He works at Cooper Transport, a company that uses semi tractor trailers to haul cars for General Motors.  He is the quality assurance supervisor. He is well spoken and comes across as intelligent, honest and forthright.  He will make an excellent witness before a Jackson County Circuit Court jury.

On December 16, 2007, at approximately 5:15 p.m., Mr. Gifford was on his way home from work.  It was dusk.  The weather was clear and the roads were dry.  His route placed him on Interstate 70 headed east across the Lewis and Clark viaduct bridge.  As Mr. Gifford merged onto Interstate 70, he drove up right beside the semi driven by our client, Elmer Kenner.  There were a number of cars on the road but the traffic was not heavy.  The interstate had four lanes at that point.  Mr. Gifford was in the far left lane.  Our semi tractor trailer was in the lane immediately to his right.  The traffic was traveling at approximately forty-five miles per hour.  Mr. Gifford was traveling at approximately forty-seven miles per hour, had pulled up beside and was gradually passing our semi-tractor trailer truck as the cars crossed the viaduct bridge.   No other cars were in Mr. Gifford’s lane for approximately one-hundred yards.  A truck with a full-sized camper was traveling approximately five car lengths ahead of the semi.  The truck’s camper was large enough to stand up inside it, which, given its size, partially obscured the view in front of it.

Suddenly, and without warning, the truck with the camper violently swerved into the lane to its right.  This panicked maneuver revealed a stalled late model Ford truck in the lane, which the truck with the camper narrowly avoided.  The stalled truck “had no lights on it whatsoever” and was not visible to Mr. Gifford until the truck and camper swerved.  Mr. Gifford knew that there would be a large personal injury auto accident at that time.  In Mr. Gifford’s opinion, there was no way for the semi tractor trailer to his right to avoid this Lee’s Summit auto accident.  Mr. Gifford was about even with the semi’s second set of tires from the semi’s front at that point.  He sped up in an attempt to avoid being near the auto accident.  However, there was too little time.  The auto accident between the semi and the stalled truck produced a cloud of white powder that Mr. Gifford had to drive through to reach safety.  Small amounts of debris impacted his car and Mr. Gifford feared the vehicles would collide with him.

After clearing the Lee’s Summit auto accident point, Mr. Gifford pulled to the side of the road, got out of his car and went back to the automobiles.  The driver of the semi-tractor trailer truck was just getting out of his tractor-trailer truck.  He appeared shook up but otherwise uninjured.  Mr. Gifford and several other drivers that had stopped then began looking for the driver of the stalled truck.  After some searching, another driver noticed a body on the ground below the bridge.  The body later turned out to be Eric Cook, the driver of the stalled truck.  To this day, Mr. Gifford does not know how the driver of the stalled truck got there.  Mr. Gifford did not see him before, during or after the Lee’s Summit auto accident.  The truck with the camper had not stopped.  Thus, Mr. Gifford does not know whether the truck with the camper caused Mr. Cook to go over the bridge, whether the auto accident caused him to go over or whether he wound up there through some other means.  Mr. Gifford believes that the truck with the camper could have struck or otherwise caused Mr. Cook to go over the bridge.  The truck with camper did not stop and continued on.  No one knows its license plate number.

Wage History and Special Damages

The plaintiff has supplemented her discovery to us in response to our Motion to Enforce Discovery.  Specifically, the plaintiff has provided the yearly tax records of plaintiff Mary Timpson and her deceased son, Eric Cook.  The records show their gross incomes as follows:

Eric Cook

1993                  $19,571.00

1994                  $20,283.00

1995                  $19,589.00

1996                  $22,156.00

1997                  $23,143.00

Mary Timpson

1995                  $7,471.00

1996                  $27,882.00

1997                  $31,237.00

1998                  $56,488.00

1999                  $44,305.00

The large increase in the income of Mrs. Timpson in 1996 came from the sale of her house after the death of her husband, David Cook.  The income of Mrs. Thompson in 1997 is from her employment as a laborer.  Mrs. Timpson married Harley Timpson in 1998.  That year, she earned $21,114.00 from her employment as a laborer.  In 1999, $21,602.00 of her income came from her employment as a laborer.

Plaintiff Marry Timpson has provided us with the bills from Mr. Cook’s death as part of her discovery responses.  The bills reflect the following charges, which she seeks as part of her damages in this matter:

Funeral expenses:                                                            $6,441.29

MAST ambulance expenses:                                   $705.79

Truman Medical Center hospital expenses:          $382.00

We have also had a chance to review the reports of the ambulance and hospital personnel that attempted to resuscitate Mr. Cook and that pronounced it a Lee’s Summit wrongful death auto accident.  Their reports show that he had massive injuries.  Mr. Cook had multiple leg fractures, compound head and facial injuries, bruising in his chest, abdomen and pelvis and traumas to his neck, spine, thorax and his entire legs.  Blood and mud were in his mouth.  It seems clear from these injuries that Mr. Cook suffered a wrongful death almost immediately.  The reports may be used as evidence to refute any claims of lengthy pain and suffering made by the plaintiff.  There were no criminal charges filed so we have no need for a Lee’s Summit criminal defense lawyer.

ANALYSIS AND FURTHER HANDLING

The testimony of Eddie Gifford is important to our defense of this matter.  He will help to establish that there was little if anything that our trucking accident driver could have done to avoid the Lee’s Summit wrongful death auto accident.  Mr. Kenneth was not speeding and was operating his automobile at what should be a safe distance from the other traffic on the interstate.  Mr. Gifford’s testimony also supports our position that Mr. Kenneth had no time to swerve, brake or otherwise avoid the Lee’s Summit wrongful death auto accident.  In Missouri, semi-tractor trailer truck drivers are required to “use such care as would ordinarily be exercised by a very careful and prudent person under the same or similar circumstances.”  Wise v. Pottorff, 987 S.W.2d 407, 410 (Mo.App. W.D. 1999).  Our defense will point out that this standard does not require clairvoyance. “Although a [defendant] is charged with seeing that which could have been seen, the law does not require the impossible nor hold one guilty…because of his inability to see through impenetrable objects or bend his vision around them.”  Holtmeyer v. Scherer, 546 S.W.2d 29 (Mo.App. 1976).  Thus, it appears from Mr. Gifford’s testimony that there was no way for the drivers to anticipate or see Mr. Cook’s stalled truck before it was upon them.

Mr. Gifford’s testimony will also help to establish that Mr. Cook’s vehicle was not a reasonably foreseeable danger.  In Missouri, a “following motorist has a duty to use the highest degree of care to keep a proper lookout for other vehicles.”  Duvall v. Smith, 950 S.W.2d 526, (Mo.App. 1997).  “A motorist following another vehicle must have his or her car under such control to avoid foreseeable dangers and emergencies, but is not required to anticipate an emergency arising under circumstances that could not have been reasonably anticipated by driver exercising highest degree of care.” Nishwitz v. Blosser, 850 S.W.2d 119, 122 (Mo.App. 1993).  Mr. Gifford’s testimony verifies that Mr. Cook’s vehicle was stalled at a dead stop on a major interstate highway.  It had no working lights or any other kind of visible marker to allow other vehicles on the road to see it.  As such, we will likely be able to show that the vehicle was not a reasonably foreseeable danger.

The testimony of Mr. Gifford will help us establish the comparative negligence of Mr. Cook.  “Generally, a person who obstructs the roadway with a vehicle has a duty to remove it….”  Pruneau v. Smiljanich, 585 S.W.2d 252, 254 (Mo. Ct. App. 1979).  See also Tennison v. State Farm Mutual Auto Ins. Co., 834 S.W.2d 846, 847 (Mo.App. 1992) (stating that juries often assess comparative negligence to the car in front for stopping on the paved portion of the highway, not pulling off on the shoulder of the road, and not engaging emergency flashing lights); Hacker v. Quinn Concrete Co., Inc., 857 S.W.2d 402, 409 (Mo.App. 1993) (stating that it is negligent to allow a motor vehicle to stand on the traveled portion of the highway).  “It is not negligence to fail to anticipate that another will be negligent for one is entitled to assume and act upon the assumption that others will exercise due care for their own safety….”  Wise, 987 S.W.2d at 412.  Here, Mr. Gifford testified that the truck had no working lights whatsoever and was in very bad condition.  We will assert that Mr. Cook’s truck broke down because of poor maintenance by the deceased.  We will further assert that the Lee’s Summit wrongful death auto accident could have been avoided if Mr. Cook had placed working lights on the truck so that approaching motorists could see it.  Thus, the testimony of Mr. Gifford will help establish the comparative negligence of Mr. Cook.

We are presently pressuring defendants Summit Transport and LG Transport to find and allow us to inspect the trailer towed by Mr. Cook on the day of the Lee’s Summit auto accident.  We are also pressuring them to provide us with Mr. Cook’s employment records.

Finally, enclosed are two invoices, the first from Legal Services in the amount of $61.25 for the service of subpoena in the above-captioned matter.  The second is an invoice from Associates, Inc. in the amount of $221.00 for the deposition of Eddie L. Gifford.  I have reviewed these invoices and find them in order.  Please place both in line for direct payment at your earliest convenience.

As always, we will keep you apprised of any significant developments as they occur.  If you have any questions or if I can help in any manner, please feel free to contact me.

Very truly yours,

Matt Hamilton, Lee’s Summit Personal Injury Lawyer

matthamilton@law-kc.com

Enclosures

MJH/ #7178564

Note:  This case was also submitted to our best Harrisonville wrongful death auto accident attorney and he concurs with this analysis.

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Lee’s Summit Semi Tractor-Trailer Trucking Accident – Exemplar Petition for Damages

This Memo is written for the benefit of Lee’s Summit trucking accident attorneys seeking the proper way to draft a Petition for Damages in a semi tractor trailer accident for personal injury in the Circuit Court of Jackson County at Independence.  It is not meant to be copied by non-lawyers because different facts will necessitate different text to be put into the Jackson County Circuit Court Petition for Damages.  For example, I use here Kansas Statutes where Missouri statutes should be placed.  Also, the names of the parties have been changed for privacy purposes.

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI

AT INDEPENDENCE

Circle D Transport,

Plaintiff,

vs.                                                                                          Case No. __________________

Division ____

John C. Hyatt,

Serve at:

917 Independence

Lee’s Summit, MO  66063

Defendant.

PETITION FOR DAMAGES

COMES NOW, the plaintiff, Circle D Transport, by and through undersigned counsel, and for its cause of action against defendant John Hyatt states and alleges as follows:

COUNT I – NEGLIGENCE

1.         The Lee’s Summit auto accident personal injury Plaintiff is an Missouri corporation doing business in Lee’s Summit, Jackson County, Missouri.

2.         The Lee’s Summit automobile accident Defendant is a citizen and resident of Lee’s Summit, Jackson County, Missouri.

3.         Pursuant to K.S.A. 60-603, jurisdiction and venue are proper in the Circuit Court of Jackson County, Missouri at Independence.

4.         All of the acts, conduct and omissions in the Lee’s Summit auto accident herein alleged occurred within or near Lee’s Summit, in Jackson County, Missouri; at all times mentioned herein, Missouri Highway 291, was a public street and thoroughfare near Lee’s Summit in Jackson County, Missouri, running in a general northerly and southerly direction.

5.         On or about December 05, 2008, an automobile owned by the personal injury plaintiff was being driven by an employee of the plaintiff northbound on Highway 291.

6.         The Lee’s Summit automobile accident Defendant was also a driver on Highway 291 and owed a duty of reasonable care to other drivers and vehicles on the roadway.

7.         Defendant carelessly and negligently operated his automobile so as to cause an auto accident with the plaintiff’s automobile, directly resulting in personal injury damages to the plaintiff at said time and place.

8.         Defendant was further careless and negligent in the following respects:

(a)              in driving an automobile in willful or wanton disregard for the safety of other drivers and automobiles on the road;

(b)             in failing to turn or move left upon a roadway at a time when said turn or move could be made with reasonable safety; and

(c)              in failing to give a signal of his intention to turn during the last 100 feet traveled by his vehicle prior to turning;

(d)              in suddenly decreasing the speed of his automobile without first giving an appropriate signal according to Missouri law to the driver of the automobile immediately to his rear.

9.               As a direct and proximate result of defendant’s negligence in causing the Lee’s Summit auto accident, plaintiff has suffered personal injury, over $35,737.10 in property damage, loss of profits, loss of earnings, and rental expenses.

COUNT II  –  NEGLIGENCE PER SE

COMES NOW the plaintiff Circle D Transport and for Count II of its action against the defendant John Hyatt states that:

10.        Plaintiff incorporates herein by reference each and every allegation set forth in Count I of this Petition as though fully set forth herein.

11.        Kansas statute 8-1548 (a) provides that it shall be the duty of every driver to turn or move a vehicle to the left upon a roadway only where and when such turn can be made with reasonable safety, and to turn left only after giving an appropriate signal as provided under 8-1548.

12.        Kansas statute 8-1548 (b) provides that it shall be the duty of every driver to signal an intention to turn or move left continuously for a distance of not less than the last one hundred (100) feet traveled by the vehicle before turning.

13.        Kansas statute 8-1548 (c) provides that it shall be the duty of every driver to give an appropriate signal under 8-1548 to the driver of any vehicle immediately to the rear before stopping or suddenly decreasing the speed of their vehicle.

14.        Kansas statute 8-1566 provides that it shall be the duty of every driver to avoid driving a vehicle in willful or wanton disregard for the safety of persons or property.

15.        Kansas statutes 8-1548 (a), (b), (c), and 8-1566 were designed to prevent the damages sustained by the plaintiff.

16.        Defendant violated Kansas statutes 8-1548 (a), (b), (c), and 8-1566 as follows:

(A)       defendant failed to turn left upon a roadway with reasonable safety.

(B)       defendant failed to give an appropriate signal as provided under 18-1548.

(C)       defendant drove a vehicle in willful or wanton disregard for the safety of persons or property.

17.        As a direct and proximate result of defendant’s violations of Kansas statutes 8-1548 (a), (b), (c), and 8-1566, a Lee’s Summit auto accident occurred causing plaintiff to suffer personal injury, over $35,737.10 in property damage, loss of profits, loss of earnings, and rental expenses.

WHEREFORE, plaintiff Circle D Transport prays for judgment against defendant Hyatt in a sum in excess of $35,737.10, plus interest as provided by law, for its costs incurred herein, and for such other relief as the Court deems just and proper.

DEMAND FOR JURY TRIAL

COMES NOW, the plaintiff, Circle D Transport and respectfully demands a trial by jury in the Circuit Court of Jackson County, Missouri at Independence of all issues raised herein.

Respectfully submitted,

Hamilton & Associates, Lee’s Summit personal injury attorneys

By:______________________________________

Matt Hamilton                      KS # 11811

216 North STate Route 7

Pleasant Hill, Missouri  64080

Telephone: 816/540-4040

Facsimile  : 816/540-3147

CASS COUNTY AUTO ACCIDENT ATTORNEY

FOR PLAINTIFF CIRCLE D TRANSPORT

MJH:March 18, 2011\70274543

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Lee’s Summit Auto Accident Lawyer Mediation Statement – How an insurance defense attorney informs a mediator

February 12, 2011

Trucking Auto Accident Lawyer statement for a Mediator

The following is an example of a “Mediation Statement.”  This example presents from the point of view of the insurance defense lawyer.  Names and identifying information has been changed to protect the identity of the victims of this personal injury auto accident.

This is the type of statement given to a mediator just prior to mediation.  A “mediation” is an informal gathering of the insurance defense attorney with a representative of the auto accident insurance claims adjuster for the insurance company.  Also present is the auto accident victim and the personal injury auto accident attorney.

At the mediation, the mediator asks for an opening statement from each party.  Then the groups are divided into different rooms and the mediator goes between the two groups and attempts to elicit a settlement of the personal injury auto accident claim.

Re:     William Robinson, et al. v. Yellow Trucking & Farm

Case No.:               11-1260-CV-W-4-ECF,

in the United States District Court

for the Western District of Missouri, Western Division

Our File No.:         01762-2147806

D.O.L.:                   3/5/11

Dear Mr. Smith:

We have had the opportunity to review and summarize the facts and law in this personal injury trucking accident lawsuit.  I have set forth our findings in detail below.  This summary should assist you through the mediation process.

STATEMENT OF THE CASE

 

Defendant Yellow Trucking and Farm is a trucking business located in Lee’s Summit, Missouri.  Mary Overman, one of its professional trucking drivers, was hauling a load across Lee’s Summit, Missouri on Interstate 435 on the night of March 5, 2011.  She was traveling behind a Lincoln Towncar.  Suddenly, Mrs. Overman saw the Lincoln have a personal injury auto accident; she saw it swerve onto the median and then off of the road.  Concerned for the driver, she and several other drivers pulled onto the side of this Lee’s Summit highway.  They found that the rear of the Lincoln had struck a tree.

Both plaintiffs are in their early to mid fifties and live in Lee’s Summit, Missouri.  They have a child who attended Missouri University on a gymnastics scholarship at the time of the personal injury auto accident.

Early in March of 2011, plaintiffs embarked on a series of automobile trips to watch their daughter compete in gymnastic tournaments.  While on the trips, the plaintiffs traveled in a caravan of automobiles following the buses of students. On March 5, 2011, they were on their way from a competition in Lees Summit, Missouri to another competition in Kansas City, Missouri.  Both recall that they left Shreveport between 4 p.m. and 5 p.m.   They were following the other automobiles because they were unfamiliar with the route.  The plaintiffs were driving a 1988 Lincoln Town Car with approximately 180,000-185,000 miles on it.

While driving through Lee’s Summit, Missouri, plaintiffs claim that a tractor trailer truck unit somehow got in front of them in the caravan.  They claim that the right rear trailer tires of that unit, veered over the fog line of the road on the right, then corrected itself.  Neither plaintiff can identify either that trailer or the tractor by color, size or markings.  The plaintiffs passed this truck to regain their position behind the bus so as to not get lost.  They admit that they did not pay attention to the truck after that.

At approximately 10:20 p.m., plaintiffs claim a tractor trailer unit pulled up beside them as though to pass.  Plaintiffs do not know if it was the same truck or another truck.  The truck seemed to pace them for a period of time, the length of which neither could pinpoint.  They both recall that during this period they were traveling on an upgrade.  The plaintiffs recall hearing the tractor engine change in sound, saw it start to ease back in its lane.   Plaintiffs claim that they felt the rear of their car push to the right just after the tractor trailer was behind them.  This is claimed to be the start of the Lee’s Summit personal injury auto accident.

Mr. Robinson cannot describe the action of his car in the car crash, other than he was forced to go across the passing lane and onto the median.  When the plaintiffs’ car was on the median, it spun around so that it was traveling backwards and hit some trees located in the median.  After the auto accident, there was significant damage to the rear of plaintiff’s automobile caused by the impact with the tree.  The tires on the plaintiffs’ automobile were unharmed in the Lees Summit automobile accident, except for the front driver’s side tire, which was flat.

Defendant’s driver and another driver who saw the personal injury auto accident stopped on the road and checked on the plaintiffs.  Plaintiff’s recall asking Mrs. Overman, defendant’s driver, whether her truck had contacted their automobile.  Mrs. Overman stated that it had not.  The other driver that witnessed the accident saw the plaintiffs’ headlights moving out of their line and saw plaintiffs’ automobile go onto the median during the auto accident.  He observed no contact with the truck.  The investigating police officer inspected Yellow’s tractor and trailer at the scene.  He could find no damage indicating contact with the plaintiffs’ automobile.  As such, his report indicates that our automobile was not a cause of the plaintiffs’ Lees Summit personal injury auto accident.  Plaintiffs deny that there were maintenance or repair problems with their automobile at the time.

William Robinson’s Alleged Injuries:

William is 5’9 1/2″, and weighs approximately 270 pounds and is a diabetic.  He suffered personal injury in the form of cuts and scratches, difficulty breathing, a broken rib, pain in the middle of his back and a stiff neck (diagnosed as a fractured odontoid process).  Mr. Robinson was admitted to a hospital in Lee’s Summit, Missouri for a day or two.

Mr. Robinson returned to work after approximately eight weeks of rest.  Plaintiff testifies that he has not had any problems since that time.  He claims $6,737.00 in lost wages and $10,222.44 in medical bills.

Ruth Robinson’s Alleged Injuries:

Before the Lees Summit auto accident in this case, plaintiff Ruth Robinson had pre-existing personal injury medical conditions that included toxemia and convulsions resulting in compression fractures in the thoracic area of her back, a hysterectomy, fibromyalgia, high cholesterol, high blood pressure and osteoarthritis.  She testified that her pre-existing personal injury medical conditions limited her activities before the Lees Summit personal injury auto accident.

Mrs. Robinson received a broken and cut leg and a bruised right shoulder in the Lees Summit auto accident.  She claims problems with rapid heartbeat, and swelling and numbness in the front of her thighs. She claims that her injuries limit her activities.  The physicians for Mrs. Robinson indicate to her that has lost 15%-20% of the function in her legs.  She was released from the hospital after twelve days.  She claims $137,237.77 in medical bills.

SUPPORTING LAW

The Lee’s Summit personal injury auto accident lawyer for the plaintiffs asserts a Petition for Damages that brings claims of negligence and res ipsa loquitur against defendant Yellow Trucking and Farm.

Conflict of Laws

Missouri law will likely apply to the determination of this case.  The conflict of laws rules in Mississippi, like Missouri, apply the law of the state that has the most substantial relationship to the cause of action. Galloway v. Korzekwa, 346 F. Supp. 1086, 1090 (N.D. Miss. 1972); Mitchell v. Craft, 211 So.2d 509, 510 (Miss. 1968); Restatement (Second) Conflict of Laws, sections 175, 145, 164 and 6 (1968).  Here, the plaintiffs are Lee’s Summit, Missouri citizens and the defendant is a Tennesee corporation with its principal place of business in Tennessee.  The Lee’s Summit auto accident, injuries, and the location of the majority of the medical treatment occurred in Lee’s Summit, Missouri.  Missouri has the most significant relationship to the facts in this case.  Accordingly, the law of the state of Missouri will apply.

Negligence:

The basic laws of negligence in Mississippi are the same as Missouri’s negligence laws.  Couch v. City of D’Iberville, 656 So.2d 146, 150 (Miss. 1995).  “As a general rule, the mere fact that an auto accident has occurred is not, of itself, evidence of negligence on the part of anyone.” Wilkerson v. State, 731 So.2d 1173, 1181.  In this case, plaintiffs presently cannot show that Yellow Trucking and Farm breached any duty in negligence.  Our automobile showed no signs of any contact with another car.  The investigating Lee’s Summit police officer could find no evidence that our truck was involved in the auto accident.  Eyewitnesses to the Lee’s Summit auto accident will testify that the truck was not involved in the plaintiffs’ auto accident to their knowledge.  It presently appears that the automobile accident was most likely the result of the plaintiffs’ driving or a problem with their automobile.  Further, the plaintiff’s personal injury damage claims will be complicated by their long history of significant chronic health problems as set out above.

Res Ipsa Loquitur:

In Missouri, the doctrine of res ipsa loquitur applies where “the accident was such that under ordinary circumstances it should not have happened unless the defendant had been negligent.” Johnson v. Foster, 202 So.2d 520, 524-25 (Miss. 1967).

In the personal injury automobile accident case of Peerless Supply Company, Inc. v. Jeter, 65 So.2d 240, 242, the Supreme Court of Mississippi held that for the doctrine of res ipsa loquitur to apply, the cause of “the injury [must be in] the exclusive control and management of the defendant.”  The Court held that the doctrine of res ipsa loquitur applies only where the defendant is “the sole, proximate cause of the auto accident.”  Id.; see also Denman v. Denman, 242 Miss. 59, 70, 134 So.2d 457, 461-62 (Miss. 1961); Wickton v. Louisville & N.R. Co., 45 F.2d 615 (S.D. Miss. 1930).  The Court in Peerless refused to apply res ipsa loquitur because the plaintiff’s car had been speeding. Id. at 242.

Here, too, it is highly unlikely that Yellow can be found to be the sole proximate cause of the plaintiffs’ Lee’s Summit personal injury auto accident.  Mississippi law states that “it is well known that an automobile does not ordinarily leave the roadway unless the person in control has been negligent in some manner.” Johnson v. Foster, 202 So.2d 520, 524-25 (Miss. 1967).  Mr. Robinson was controlling his automobile at the time.  There is no evidence that Yellow’s truck contacted the plaintiff’s car.  Mr. Robinson may have been speeding to keep up with the cars he was following.  He also could have ran off of the road because of inattention or mechanical problems as evidenced by the flat tire on the driver’s side of the automobile.  As such, res ipsa loquitur will not likely apply because Yellow Trucking and Farm was not the sole, proximate cause of the plaintiffs’ Lee’s Summit personal injury auto accident.

Comparative Fault:

Comparative negligence in Missouri “represents a long-established, statutory and worthwhile policy.” Miss. Code Ann. §§ 1454, 1455 (1956); Galloway v. Korzekwa, 346 F. Supp. 1086, 1090.  Missouri law holds that “it is well known that an automobile does not ordinarily leave the roadway unless the person in control has been negligent in some manner.” Johnson v. Foster, 202 So.2d 520, 524-25 (Miss. 1967).  Here, while the evidence does not show that Yellow will bear fault, it appears likely that the plaintiffs at least contributed to cause their Lee’s Summit auto accident.  Plaintiff William Robinson was driving the car at the time of the auto accident and doing his best to stay with the caravan of cars he was following.  Mr. Robinson failed to maintain control of the automobile, which resulted in its skid off of Interstate 20.  The flat tire on plaintiffs’ automobile may evidence not only the cause of the accident, but also plaintiffs’ negligence in failing to maintain the automobile.  As such, Mississippi’s laws of comparative negligence will bar or reduce any award plaintiff’s could obtain.

Analysis

At the present time, it does not appear that our tractor trailer caused the plaintiffs’ personal injury auto accident.  After the auto accident, the tires on the plaintiffs’ automobile were unharmed except for the front driver’s side tire, which was flat.  It is possible that the plaintiffs eased off of the road, perhaps while distracted by our semi-tractor trailer truck, and either struck something or swerved to the left in an attempt to return to the Interstate.  This swerving motion could have caused the plaintiff’s automobile to leave the Interstate as it did.  It is also possible that their automobile had a mechanical problem that caused it to swerve off the road.  The automobile has not yet been inspected.

Our driver denies any contact with the plaintiffs’ automobile.  The investigating police officer inspected our tractor and trailer at the scene.  He could find no damage indicating contact with the plaintiffs’ automobile.  The Lee’s Summit Municipal Court auto accident report does not indicate our automobile as a cause of the plaintiffs’ accident.

The lack of any contact marks on the semi undermines plaintiffs’ version of the events.  They claim that they drove diagonally across the lane of travel occupied by the semi.  The semi would have had to have been very close behind the plaintiffs’ automobile if the tractor contacted plaintiffs’ automobile as they claim.  Logically, plaintiffs’ forward velocity down the line they had been traveling would have decreased drastically as the automobile skidded sideways.  However, the tractor-trailer across which path they traveled did not contact or run over plaintiffs’ automobile.

Presently, the liability claims of the plaintiff appear highly questionable.  The facts do not indicate that the Yellow’s truck contacted the plaintiff’s automobile.  This Lee’s Summit personal injury auto accident was most likely caused by either the inattentive driving of Mr. Robinson or a blown tire or other problem on the plaintiff’s car, which caused it to skid off of Interstate 435.

I hope that this case summary will be of assistance to you during the mediation process.  As always, if you have any questions or concerns or if you would like to discuss this matter further, please do not hesitate to call.

Very truly yours,

Matt Hamilton

matthamilton@law-kc.com

MJH/# 73589

Personal injury auto accidents l Comments Off on Lee’s Summit Auto Accident Lawyer Mediation Statement – How an insurance defense attorney informs a mediator

Lee’s Summit Personal Injury – Example of an Insurance Company Integrated Defense Plan & Case Analysis

The following article gives you an idea of what an insurance claims adjuster will receive from its insurance defense attorney regarding a personal injury slip and fall type case.  For purposes of privacy, the names of the parties and some facts have been changed.

This will give you an idea of the type of analysis that is made by an insurance company evaluating a claim for compensation from a Lee’s Summit injury accident.

Initial Case Analysis

And

Integrated Defense Plan

To

Ms. Camille F. “Hart”

Office

“Houston,” TX

Date

7/3/10

Claim File No.

“DCC-882717”

Case Title

“Wright, Steffen” v. “Bart” & Company, et al.

Reported By

“Ronald Brown”

Next Conference Target Date

8/26/10

Estimated Legal Expense Range

$10,000-$15,000

Estimated Verdict Value Range

Unknown

Estimated Settlement Value Range

Deferred

Initial Case Analysis

1.  Statement of Facts

2.  Assessment of Liability

3.  Assessment of Damages

4.  Verdict Value Discussion

5.  Settlement Value Discussion

Integrated Defense Plan

6.  Agreed Case Strategy

a.  Case Direction

b.  Negotiations

c.   Timing

7.  Agreed Investigation Outline

8.  Agreed Disposition Plan

a.   Pleadings

b.   Written Discovery

c.   Depositions

d.   Motions

e.   Anticipated Court Appearances

f.   Conferences

g.   Experts

h.   Research

i.    Alternative Dispute Resolution

j.   Anticipated Responsive Requirements

k.   Legal Expense Range

 

1.         Statement of Facts:

This is a accident case filed by a personal injury law firm in Jackson County, Missouri on May 4, 2010. Plaintiff Steffen Wright was a patron of the Il Ramirez Restaurant in Lees Summit, Missouri on May 10, 2008.  Plaintiff states that he was dining at the restaurant when he observed a child running toward a plate glass window, apparently thinking that it was an open doorway.  The plaintiff states that he unsuccessfully attempted to come to the aid of the child after it had fallen through the window.  The injured accident plaintiff alleges he was cut by glass from a separate window that was adjacent to the window the child ran through.  Plaintiff alleges that the glass spontaneously broke as he was walking past it causing personal injury.  The glass apparently broke into large shards, which put a one and a half inch cut plaintiff’s upper wrist and scratched his thigh.  It appears that normal glass without glazing or gridding was used for the windows on the property.

Our client, defendant Bart & Company, was the property manager of the restaurant. Co-defendant, Italian Garden of Lee’s Summit, MO., owns Il Ramirez Restaurant.  Employees of Il Ramirez claim that the accident injury victim tripped and fell through the glass window as he was moving toward the window the child had ran through.  Lee’s Summit Development, L.P. is the owner of the property.  Mueller & Staunch originally installed the windows and build the area around them. We do not know whether Italian Garden ever replaced the windows. Neither Lee’s Summit Development, L.P. nor Mueller & Staunch has been sued and the two-year statute of limitations for the injured accident plaintiff to do so has expired.

Plaintiff’s personal injury attorney’s Petition for Damages claims personal injury and that each defendant was negligent in the accident in the following respects:

1.         Negligent in failing to keep and maintain the Lees Summit premises in a reasonably safe condition;

2.               Negligent in failing to utilize tempered glass in its windows at its Lees Summit restaurant;

3.         Negligent in failing to utilize proper glazing in its Lees Summit restaurant windows;

4.         Negligent in failing to use a riser to distinguish the window in its Lees Summit restaurant from an open door;

5.               Negligent in failing to warn of lack of use of tempered glass, proper glazing or use of a riser in its window in its Lees Summit restaurant;

6.               Negligent in failing to inspect the window and take reasonable precautions to prevent injury to others due to lack of use of tempered glass, proper glazing or a riser for its window in its Lees Summit restaurant;

7.               Negligent in failing to barricade or place a warning in front of the window in its Lees Summit restaurant to prevent accidental collision with the window;

8.         Negligent in failing to maintain and operate its premises pursuant to the Municipal Codes of Lee’s Summit;

9.         Negligent in failing to design, construct and maintain the premises in its

Lee’s Summit restaurant in a manner that avoids confusing its customer that the subject window is a door.

10.       Negligent in failing to place protective restraints or gridding on the window

in its Lees Summit restaurant;

11.            Negligent in seating its patrons in its Lees Summit restaurant near an unsafe and dangerous condition;

12.       Negligent in failing to adequately inspect the premises of its Lees Summit

restaurant for dangerous conditions;

13.       Negligent in maintaining and operating its premises in its Lees Summit

restaurant in a manner that complies with “other applicable code provisions.”

2.         Assessment of Accident Injury Liability:

We believe that co-defendant Il Ramirez/Italian Garden may bear some liability for the window in its restaurant.  The accident injury plaintiff appears to have been an invitee in the restaurant.  If the plaintiff’s testimony is believed, a restaurant window spontaneously broke as he walked past it.  In Jackson County, Missouri, a premises defect is a condition that presents an unreasonable risk of harm to business invitees.  A jury could decide that a glass pane, which will spontaneously break because of stress caused by a window being broken next to it, may present an unreasonable risk of harm to Lees Summit, MO restaurant patrons.

Furthermore, defendant Il Ramirez/Italian Garden may bear accident injury liability because of its failure to abide by the building codes of Lee’s Summit, Missouri.  The Building Code of Lee’s Summit used the standards of the B.O.C.A. National Building Code (1996 edition).  Section 2405.2 of B.O.C.A. requires glazing on windows of greater than nine square feet, that have risers of less than eighteen inches, that have a top edge of greater than thirty-six inches above the floor, and that are within three feet of a walking area.  The B.O.C.A. states that the purpose of this section was to protect the occupants of buildings from injury.  After the incident, Italian Garden was cited for violating this standard.  Italian Garden claims that it had no knowledge or notice that the window did not meet this standard.  Despite this, defendant Italian Garden may bear liability for its failure to insure that the subject window had proper glazing in its Lees Summit restaurant.

It is unlikely that either defendant will bear personal injury liability if the testimony of co-defendant Italian Garden’s employees, that the plaintiff fell through the glass window, is believed. John Alvarado, manager of Il Ramirez/Italian Garden, has informed us that the personal injury plaintiff lost his balance and fell through the window.  Thus, the plaintiff would not have been injured if he would not have interfered or if he would have kept his balance.  The laws of comparative negligence in Jackson County, Missouri is different than Kansas, where if the plaintiff is equal to or more than 50% at fault in the occurrence, then no relief can be granted.  As such, the defendants’ liability may be reduced or eliminated because of the comparative negligence of the plaintiff.  Missouri is a comparative fault state.  Thus, if the plaintiff is 1% at fault, his personal injury accident damages are reduced by 1%.

The liability of Block & Company remains highly questionable as it does not appear that it had any of the duties plaintiff alleges.  Block & Company did not build or direct the construction of the subject windows.  It appears that the Miller & Stauch, an independent contractor, was hired to and had the duty to construct the windows according to city code. Mike Klein, our representative at Block & Company, indicates that the city inspected the property prior to this incident and found no code violations that pertained to the windows or frames.  There is no indication that Block & Company was ever advised of any safety concerns over the window.

Under the lease, Joe Avelutto d/b/a Italian Garden was responsible for maintaining, repairing and replacing the window.  There is no indication that Block & Company had a duty to inspect the windows and it did not undertake to inspect the windows.  The lease agreement in this case is between Overland Park 91, L.P. and Joe Avelutto d/b/a Italian Garden.  Under Block & Company’s contract with Overland Park 91, L.P., it had a duty to inspect the common areas of the property.  However, the alleged window is not in a common area.  We see no other indication that Block & Company was responsible for the safety of the premises.

Bart & Company may be able to bring a third party action against Mueller  & Staunch for contribution if it incurs losses because of breaches of a duty to construct the window properly.  We do not know at this time whether the subject window was an original installed by Mueller & Staunch or whether it was a replacement window.  However, if evidence arises that shows that it improperly installed the window, a claim for contribution could be brought against Mueller & Staunch.

3.         Assessment of Personal Injury Accident Damages:

The injured accident plaintiff claims medical expenses arising mainly from three surgeries to his wrist.  Plaintiff also alleges significant business income loss and loss of quality of life.  Specifically, the personal injury plaintiff alleges he sustained substantial injuries to his body, permanent disabilities, pain and suffering, emotional distress and future loss in income.  The plaintiff alleges that his damages exceed $175,000.00.

Plaintiff has incurred $140,900.34 in medical expenses to date.  Mr. Wright has stated that he may undergo a fourth hand surgery.  If so, he will claim added medical expenses from that treatment for his Lees Summit personal injury.

Plaintiff presently claims $16,500.00 in lost income.  This arises from allegations that he lost twelve and one half weeks of work at $2,500.00 in income per week. Plaintiff claims that he may incur additional income loss if he undergoes a fourth surgery.  The income damage claims appear exaggerated as he never earned over $64,000.00 per year as a consultant and it is unclear whether he was actually unable to perform a contract because of his personal injury accident.

Mr. Wright also claims personal injury damages to his enjoyment of life.  He claims that he cannot exercise like he used to and that he cannot play with his children as before.  The plaintiff claims that his marriage has suffered added strain from the stress of the surgeries and that his sex life is limited because of the lack of range in motion in his wrist.  He states that he cannot drive his car, which has a manual transmission.  Mr. Wright claims personal injury accident damages from the regular pain that he allegedly suffers.  He states that he has trouble sleeping.  The plaintiff conspicuously appeared to exaggerate his loss of quality claims during his deposition.

4.         Verdict Value Discussion:

If liability is found at trial, the verdict will likely be between $141,000.00 and $374,000.00.

5.         Settlement Value Discussion:

Deferred.

INTEGRATED PERSONAL INJURY ATTORNEY DEFENSE PLAN

6.         Agreed Case Strategy:

Case Direction: We recommend that a Motion for Summary Judgment be filed on the grounds that Bart & Company had no duties to the plaintiff that were breached.  The dispositive motion should also set out that the window was not a premises defect.

We will locate, contact and interview plaintiff’s business clients to determine whether he was working for them at or near the time of the incident and to verify his rate of pay.   We will contact the Internal Revenue Service to determine plaintiff’s 2008 income.

Depositions of the witnesses to the occurrence to determine how the Lees Summit personal injury accident actually occurred.  Possibly retain expert witness to examine the medical claims of the plaintiff.

b.         Negotiations: Plaintiff has made no demand.  No offers have been made.

c.         Timing: Depositions to be taken in the next 4-8 weeks.  His business clients will be located and contacted in the next 4-8 weeks.  We will continue to pressure co-defendant Italian Garden to settle or assume the defense of this personal injury accident case.

 

 

AGREED INVESTIGATION OUTLINE

AND

AGREED DISPOSITION PLAN

(List in numerical order all items under 7)

_________________________________________________________________________________________

Target Date

7.         Agreed Investigation Outline:

 

Locate, contact and interview the business contacts of the plaintiff.     7/25/10

Determine his contract rate of pay and whether he was working during

the relevant time periods.  The personal injury plaintiff claims that he has

no income tax return from 1998.  He has provided us with an authorization

for these records.  We will get these records from the Internal Revenue

Service to accurately determine his income at the time of the incident.

8.         Agreed Disposition Plan:

a.         Pleadings: Dismiss without prejudice the cross-claim for         7/6/10

contractual indemnification against defendant Italian Garden.

b.         Written Discovery: None at this time.                                       T.B.A.

c.         Depositions: Take deposition of Joe Scavuzzo, manager      T.B.A.

ofItalian Garden.  Take depositions of the witnesses to the

occurrence.  Depositions of any experts named by plaintiff

or co-defendant.

d.         Motions: A motion for summary judgment should be        7/31/01

made stating that Bart & Company had none of the duties

alleged by the personal injury accident plaintiff, that the glass

pane windows were not a premises defect and the plaintiff

cannot make a submissible case on his premises liability claims.

e.         Anticipated Court Appearances: We anticipate at least 2    T.B.A.

hearings to check on the status of discovery and set this matter for trial.  We also expect at least one hearing to resolve discovery disputes.

f.          Conferences: I anticipate the personal injury attorney

will take one or more  depositions of Bart & Company or

Italian Garden personnel.  We will need at least one

conference with the representatives of Bart& Company

to prepare for their deposition, if scheduled by plaintiff’s

Lee’s Summit personal injury attorney.

g.         Experts: We may need at least one expert to examine the      T.B.A.

medical claims of the personal injury plaintiff.

h.         Research: Some research will be needed to support         7/14/01

our potential motion for summary judgment.  In addition, other issues could arise during course of investigation and discovery that would need to be researched.

i.          Alternative Dispute Resolution: It remains too early to      T.B.A.

determine whether alternative dispute resolution is warranted.  Once we receive more information regarding liability and personal injury damages, we will provide a recommendation as to whether mediation should be considered.

j.          Anticipated Responsive Requirements: We anticipate        T.B.A.

plaintiff will notice a corporate representative deposition, to

which we will need to produce at least one witness.  We also

anticipate that the plaintiff will notice the depositions of Italian

Garden Restaurant personnel.

k.         Legal Expense Range Discussion: Without unexpected developments, we expect the legal defense, exclusive of court reporter charges, copying and exhibit charges, and expert witness fees, to be in the range of $10,000.00 to $15,000.00 to the first day of trial.

_____________________________________/__________                             ___________________________________/__________

Attorney of Record                                                Date                                                          Assigned Claims Representative                      Date

 

Lees Summit personal injury l Comments Off on Lee’s Summit Personal Injury – Example of an Insurance Company Integrated Defense Plan & Case Analysis
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