Minimizing Risks of Liability at Roadside Service Calls and Accidents

June 10, 2008

Richard D. Porotsky Jr.


The reality of the towing business is that it often brings you into contact with people who find themselves, unexpectedly, in bad situations. They may have been in an accident. Or maybe their vehicle has become disabled for some reason. Either way, they need your help. You are given the opportunity to provide a valuable service. That is part of how you make your living.

Focusing on Safety and on Helping Those in Need

Part of a tow truck driver's business is strangely similar to the work done by trial attorneys. Both tow truck drivers and attorneys have the opportunity to make money from the misfortune of others. In these situations, both professions are well advised to keep their primary focus on helping the person who is in need. For tow services, this can involve many levels of action. It involves the training of drivers before they are sent into dangerous situations. It involves having and using the proper equipment to do the job safely and efficiently. It involves working cooperatively with law enforcement and emergency personnel at the scene. Most simply, it also involves treating others with courtesy, care, and respect during potentially difficult or dangerous situations, rather than focusing on making money.

Professional success should follow those who are skilled at running their business while operating at all times with courtesy, care, and respect for others. On the other hand, the following lawsuit shows that the legal system will not be forgiving to those who focus more on making money than on the care and safety of others.

Medlin v. Clyde Sparks Record Service, Inc.--A Lesson in What to Avoid

This lawsuit known as Medlin v. Clyde Sparks Record Service, Inc., 59 Fed.Appx 770 (6^th Cir. 2003) arose from injuries occurring when Ms. Perkins' car became disabled on the west bound lane of I-55 in Memphis, Tennessee. She pulled her vehicle off to the left emergency lane, next to a short concrete barrier. The barrier separated the west bound and east bound lanes. Then she called Clyde Sparks Wrecker Service (CSWS).

The dispatcher for CSWS sent employee Paul Brown to the scene. Mr. Brown had been working for CSWS for six months and had never picked up a vehicle against a concrete barrier on the left median of an interstate. When he arrived at the scene, he moved his flat bed truck into position to pick up Ms. Perkins' car. Because of the width of his truck, it protruded 2 or 3 feet into the left lane of traffic. Before he could begin the pick up, a large truck drove past Mr. Brown's flat-bed truck, narrowly missing it. Mr. Brown called his dispatcher promptly, and with permission, drove away from the scene.

As Mr. Brown headed for home, owner Clyde Sparks radioed to him. The Court heard evidence that Mr. Sparks said:

Paul, you know you ain't did nothing all day, you need to go back and get that car because you need to make that money. You been down all day.

The Court also heard evidence that Mr. Sparks never offered Mr. Brown any assistance and never called the police to seek assistance. Nor did anyone associated with the CSWS call the police to provide assistance.

After receiving the command from his boss, Mr. Brown returned to the scene of the accident. He proceeded to load Ms. Perkins's car onto his flat-bed truck. Testimony from eye-witnesses showed that his truck protruded 2 to 3 feet into the left-hand, high speed lane of I-55. However, he did not set out any emergency reflectors, flares or other devices behind the scene to alert motorists to the potential danger. As he was loading the Perkins vehicle, police arrived, along with a wrecker from another tow service. That other service was entitled to the tow under a police regulation that requires wreckers to be selected, by turn, from a list maintained by the police department. The police vehicle and the other wrecker, with their flashing lights, parked on the right hand side of the interstate.

At about that time, Ms. Medlin was driving her car down I-55 toward the scene. She was in the process of passing several trucks on I-55 when she apparently saw the lights of the police vehicles and the other wrecker on the right-hand side of the interstate. She claims that she then tried to move left to avoid those lights. While she was moving left to pass slow-moving trucks, the left front part of her car struck the rear corner of Mr. Brown's flat-bed truck. That corner of the flat-bed was still protruding into traffic. As the Court described it: "When Medlin collided with the right rear corner of the bed of CSWS's truck, Medlin was severely injured -- the left side of her face was ripped back behind her head."

Ms. Medlin brought suit against CSWS, seeking both compensatory and punitive damages. The jury found that her injuries and compensatory damages amounted to $500,000. When asked to apportion the fault, the jury found CSWS to be 51% responsible; Ms. Medlin herself to be 44% responsible; and the police to be 5% responsible. (The Court did not explain why the police were faulted in any way, but one reason may be that they did not place their vehicle on the left hand side where the disabled Perkins vehicle was located.) After the fault was apportioned, CSWS was found liable for $255,000 of the $500,000 compensatory award. The jury also found CSWS liable for an additional $500,000 in punitive damages.

Punitive damages are awarded when injuries arise from something more than just a mistake or a simple accident. They are awarded when a person acts intentionally, maliciously, or recklessly. Reckless behavior involves a conscious disregard for a known risk of severe harm. The Court in this case found that the jury was justified in finding reckless behavior by CSWS. The Court noted that CSWS was told of the danger at the scene, but still proceeded with the tow, without getting police assistance and without using any flares or warning devices.

There is little doubt that the Court and the jury were persuaded by evidence that Mr. Sparks was more focused on making money than on safely serving the public. That portrayal of Mr. Sparks may have been unfair or inaccurate, but it was effectively presented as fact by Ms. Medlin's attorneys. They presented evidence that Mr. Sparks said something to Mr. Brown that made him return to the scene to make money, despite his inexperience; and, apparently no one from CSWS called police, which would have caused another wrecker service to receive the job instead of CSWS. Ms. Medlin thus prevailed by portraying Sparks and CSWS as having lack of courtesy and care for employees, a lack of care for the safety of driving public, and a lack of respect for the emergency response system.

Insurance and Financial Implications With Punitive Damages

Causing a severe injury and incurring a $255,000 judgment is bad enough. Receiving a $500,000 punitive damage judgment is even worse. But from a financial perspective, the worst news of all is that CSWS likely had to pay for most or all of this judgment on its own -- without insurance. The reason is that in Ohio and most other states, insurance does not and cannot cover punitive damages.

Punitive damages are awarded to punish and deter wrongdoers, and therefore, the law provides that they must be paid by the wrongdoer himself. The idea is that the threat of punitive damages will make people think twice, and avoid making intentional or conscious choices which cause severe harm to others. Simply put, insurance covers accidents, but not intentional harm and not the conscious disregard for the safety of others. Thus, although this lawsuit involving CSWS did not directly address any insurance questions, the likelihood is that CSWS ended up facing most or all of this problem without insurance. One set of bad decisions likely stripped away the insurance protection that Mr. Sparks hoped would be in place to protect him.

TRAO's Help in Preventing Liability and Avoiding Lawsuits

The details we know of this case involving Clyde Sparks Wrecker Service are those that are set forth by the Court in its written decision. There may have been other facts, but in lawsuits, the only facts that matter in the end are those that are deemed important by the judge and jury. This case is a prime example of why preventing lawsuits is obviously preferable to fighting risky battles in Court.

That is one of the reasons why your Towing and Recovery Association of Ohio (TRAO) has been prudent to get involved in cooperative efforts like Ohio QuickClear. Working together with law enforcement personnel, the department of transportation, and other emergency personnel, your TRAO has had an impact in putting together a plan of best practices for highway incident management. The TRAO's work on those best practices, which are hopefully followed by members, may help to prevent future problems. Preventing problems, and focusing on safety, will in turn prevent lawsuits. In addition, the best practices set by Ohio QuickClear may help to establish what is deemed to be reasonable, safe behavior by tow truck drivers at the scene of an accident.

Conclusion

Minimizing liability in the towing business need not be a complicated effort for the responsible business owners of the TRAO. Calling law enforcement to any potentially dangerous scene, and then following their directives, is a must. Beyond that, applying common sense to the everyday details of the business goes a long way. This involves proper training, proper equipment, and proper personal interactions in all dealings at the scene of an accident. Liability in potentially dangerous situations will never be eliminated, but it can be minimized by always focusing, first and foremost, on courtesy, safety, and respect for all involved -- from employees, to motorists, to law enforcement personnel and others. If that focus is in place, the facts of any Court case are likely to be stacked in your favor.