A driver who was awarded more than $7 million after rolling over his truck on the site of a wind farm installation has had that verdict upheld by the state’s appellate court.
James Shelton was a driver at the Bobcat Bluff Windmill Farm in Archer County, Texas, northwest of Dallas. The general contractor on the site, M.A. Mortenson Co., was hit with the bulk of paying the the award to Shelton and launched its appeal of the lower court ruling. Shelton’s employer, L.O. Transport, also was directed to share part of the payment to Shelton.
According to court documents, in April 2012 Shelton was driving a loaded truck on Bell Road with three other trucks behind him. Two of the trucks following Shelton reportedly radioed up to the project site to say they were coming up on Bell Road, known to be narrow with essentially no shoulder.
But a supervisor for L.O. Transport reportedly sent two empty trucks out from the project site and onto Bell Road – in the opposite direction of the convoy being led by Shelton.
“Both trucks were exceeding the speed limit and driving near the center of the road as they approached Shelton, who was coming in the opposite direction,” the summary written by Chief Justice Bonnie Sudderth said. She was part of a three-judge panel that heard the Mortenson appeal for the 2nd Appellate District of the Texas Court of Appeals. It issued its ruling last week.
There was an area where the two drivers could have pulled over to yield to the loaded truck driven by Shelton. Additionally, the road narrowed at that point as it crossed over a culvert, the panel said.
The two drivers – Eric Mancil and Donald North – did not yield. “Because the road was too narrow for the trucks to pass one another, Shelton turned his truck a little toward the side of the road to avoid a head-on collision,” the judge’s decision said. “The road edge failed to support the weight of his trucks, the tires sank into the soft ground and the truck overturned.”
The injuries suffered by Shelton were not spelled out in the appellate court decision.
According to the ruling, there was no blame placed on Shelton. The issue before the court was how much blame went to Mancil and North, who did not yield to Shelton, and how much went to Mortenson and any responsibility it had for maintenance of the road that was needed to handle the high-weight vehicles necessary for the wind farm project.
A Texas state trooper had testified in the first case that “the rollover likely would not have occurred if the road had included a shoulder or slope or if it had been wider.” His testimony was that the condition of the road was not unusual for that part of the state but that “it was not typical to have two-way rock-hauler traffic on such roads and that such a situation would require special attention and special safety rules.”
Testimony in the case by a representative of Mortenson appears to have been highly damaging to his employer’s case. That corporate representative, David Dreis, said Mortenson knew the road was too narrow for trucks, had decided not to widen the road, didn’t build slopes that could have stabilized the soft soil and didn’t put up warning signs.
The jury in the case answered “yes” to two legal questions – whether Mortenson was guilty of a legal concept known as negligent undertaking and whether it was guilty of a concept known as premises liability. Both involve questions of whether Mortenson should have taken steps that it did not take to “exercise reasonable care to protect Shelton from … danger.”
The division of the verdict was 75% to Mortenson, 10% to Mancil, 5% to North and 10% to L.O. Transport.
The three-judge panel’s ruling discussed numerous precedents on the question of liability and a “duty to warn,” with Mortenson arguing that it did not have a responsibility to “warn of hazards that are open and obvious or known.” But the appellate court ruled that while the narrowing of the road was “open and obvious,” some of the dangerous aspects of it, such as the soft ground past the edges of the road, were not obvious.
But Mortenson said it had warned drivers of the danger. The court, however, said Mortenson only warned that the road narrowed at the culvert and did not give any warning about other dangerous conditions at the spot where Shelton’s truck ran off the road and overturned.
This is where the testimony by Dreis appears to have come back to haunt Mortenson, as he testified the contractor knew of the dangers with the road. The company, the court ruled, “made a conscious and intentional decision not to widen the road in that area.”
It was also noted that the pull-out area that would have enabled Mancil and North to yield did not have a match on the other side of the road, so Shelton did not have that same sort of escape hatch that Mancil and North did.
“We cannot conclude that the evidence conclusively established that Mortenson mitigated the conditions of the road so that it was no longer unreasonably dangerous,” the court wrote.
The court also upheld the sharing of the verdict’s burden, noting that there can be more than one “proximate cause” of an occurrence created by negligence. “The condition of the road was the actual cause of Shelton’s rollover,” the court wrote, and the road condition was because of the negligence of Mortenson.
In a footnote, the court said Mortenson did not contest the finding that Shelton had no fault in the accident.
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