Newspaper Carrier Negligence - A teenage girl suffered serious facial injuries when her boyfriend crashed into a rural newspaper carrier who was on the wrong side of the road; settling with the carrier and her boyfriend, the girl sought damages from the newspaper, criticizing its supervision and training of carriers
Mattingly v. Courier Journal,
98 CI 0017
Plaintiff: Kevin George, Prospect
Defense: Peter J. Sewell, Sewell & Associates, Louisville
Verdict: $293,510 for plaintiff less 70% comparative fault
Circuit: Marion, J. Bertram, 4-25-03
Aundrea Mattingly, then age 17, spent the evening of 6-30-96 with her boyfriend, Eli George. Back at his house, the hour grew late and Eli fell asleep. As Aundrea=s curfew approached, she called her mom to check in.
Finally at just past 4:00 in the morning, Eli took Aundrea home. He drove on Hwy 49, three miles from Lebanon. That same morning, the Courier-Journal was delivering its newspapers on the same roadway. It does so through a local carrier, Patrick Washburn.
This morning, Patrick=s uncle, Herman, was filling in and delivering the news. To the critical moment, Herman was putting newspapers in a box -- importantly, he was in the wrong lane of travel. Coming out of a curve, Eli saw Herman=s vehicle, but couldn=t stop in time. He crashed hard into it.
In the resulting collision, the unbelted Aundrea suffered serious facial injuries. Both her jaws were broken and many teeth were knocked out. Beyond scarring and pain, Aundrea endured a lengthy repair course which included false teeth, implants, crowns and braces. Despite the intervention, Aundrea still has good and bad days. Now living in Louisville and married to Eli, she is a second-grade teacher at a parochial school. Her incurred medicals were $93,510 and she sought $50,000 for future care. The instructions limited pain and suffering to $150,000.
Procedurally Aundrea moved against a variety of defendants. They included Eli who paid $22,500; Washburn also settled and paid $25,000. Above that sum, plaintiff also took $25,000 and $88,500 under different UIM policies. One of those insurers, Farm Bureau, aggressively defended for a time before paying up. Its counsel, Robert Spragens, Lebanon, hired an accident reconstructionist, Kenneth Agent, Lexington. It was Agent=s proof that but for the failure of Aundrea to wear a seat belt, her injuries would have been less serious.
All these defendants out of the way, Aundrea moved against the Courier Journal -- not on a theory of vicarious liability, Washburn having settled, plaintiff alleged a simple ordinary care violation in failing to supervise and train its carrier. In fact, the proof was that the Courier-Journal provides no training to its carriers.
The Courier-Journal defended the case and denied fault. Besides arguing there was no duty in the first place, it sought to assign fault for the wreck to the participants. That included, Eli, who failed to appreciate Washburn=s stopped car, Washburn himself for stopping on the wrong side of the lane and finally, Aundrea=s failure to wear a seat belt as explained by Agent. [Agent survived plaintiff=s Daubert challenge.]
This unusual tort claim was tried for three days before a Lebanon jury. Its verdict was mixed on fault. The panel found fault with everyone, assigning it 7% to plaintiff and 11% to her boyfriend. 52% went to the carrier, Washburn. The remaining 30% was assessed to the Courier-Journal. [Ed. Note - Aren=t these unusual fault assignments indicia of a poll verdict?]
Moving to damages, Mattingly took all her damages as claimed, the verdict totaling $293,510. Post-trial, the newspaper moved to enter a judgment for $76,511, representing a set-off for comparative fault and PIP. It also moved for JNOV, repeating its arguments that it had no duty to supervise Washburn. Four months post-trial, the motions were heard. Five months later, according to the pleadings, not only had a judgment not been entered, there was also no ruling on the JNOV motion.
Ed. Notes
(1) The seat belt apportionment in this case, besides being the result of an apparent poll verdict, is also interesting in its amount. Since 1998 and in twenty-seven cases statewide, the average apportionment to plaintiff in a seat belt case has been 37.2%. See the KTCR 2003 Year in Review, The Seat Belt Report, page 39. The result in this case, 7%, was far below the six-year average.
(2) Should the Courier-Journal elect to appeal, assuming it loses at the trial court, it seems unlikely this verdict would survive Supreme Court scrutiny. It is not hard to imagine at least a Cooper-Graves-Johnstone-Wintersheimer majority concluding the newspaper did not have a separate duty to train and supervise its independent contractor carriers.