Biegas v. Quickway Carriers, Inc.

573 F.3d 365 (6th Cir. 2009)

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Nature of the Case

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Facts

P was struck and killed by a passing tractor-trailer as he stood outside of his dump truck during an emergency stop. P owned a concrete-removal company and was driving home from a job with his employee, Nick Cohen, who rode in the passenger seat. P was hauling a flatbed trailer which was loaded with a backhoe. The backhoe somehow struck an overpass. P immediately pulled over and stopped on the shoulder of the highway to the right of the white fog line to check for any damage to his equipment, trailing traffic, or the overpass. The rear of P's dump truck was five inches from the center of the fog line, an attachment for the backhoe on the trailer was just three-and-one-half inches from the center of the fog line, and the driver's side mirror of the dump truck actually extended some three-and-one-half inches into the roadway. Cohen testified at his deposition that he and P stepped out of the truck on their respective sides and walked to the back of the trailer. They found no damage to the backhoe nor any sign that trailing traffic had been hit by debris. Cohen saw P either 'on top of the trailer [or] or to the side of the trailer.' Cohen then heard an 'extremely loud' noise that 'sounded like two trains hitting' and he saw, for the first time, the white Quickway (D) tractor-trailer passing alongside. Cohen saw P's torso fall to the ground near the rear of the backhoe trailer. P's dead body was near the rear driver's side tire of the backhoe trailer. Dailey was driving the D tractor-trailer and saw '[a] dump truck and trailer [were] stranded partly in the right lane (which I was in).' He did not have 'much time to react' and 'steered to the left' but 'hit something.' P filed a complaint in Michigan state court alleging that Dailey's negligence caused P's death and that d was vicariously liable as the employer. The district court found that, although Dailey's conduct was negligent, P's negligence was greater as a matter of law. During the trial the court admitted Cohen's statements to Dailey and Paul Bourlier telling them to keep P's money which they had picked up at the scene; and (2) Cohen's statement to Dailey that Cohen had told P prior to the accident to 'get out of the road, he was going to get hit.' The statements were admitted under the excited-utterance exception to the hearsay rule. The jury returned a verdict allocating fifty-three percent of the fault to Ps and forty-seven percent of the fault to D and finding total economic damages in the amount of $1,507,392. The district court entered judgment against D for forty-seven percent of the economic damages, reduced to present value, for a total of $447,614.84. Both parties appealed.