Chapman v. Milford Towing & Service, Inc.

2012 WL 3871868 (2012)

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Nature of the Case

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Facts

P was driving an 18-wheel tractor-trailer. P pulled off onto the right shoulder of the interstate and stopped. He placed warning triangles along the pavement behind the tractor-trailer and contacted his dispatcher to request a serviceman to repair the vehicle. Whitaker (D), a tow truck driver for D, responded to the scene. P testified that he told Whitaker (D) he thought he had an air leak and he was waiting for a serviceman to show up to repair the truck. Whitaker (D) explained that he was sent to tow the truck. P replied that the truck was not his and Whitaker (D) should not touch it until P contacted his dispatcher to receive approval for a tow. P returned to the truck cab to call the dispatcher and organize his personal effects in the event the vehicle was towed. Whitaker (D) testified that Penske Leasing, the owner of the tractor, dispatched him to tow it upon arrival. Whitaker (D) denied that P stated he needed to contact his dispatcher to confirm whether the tractor-trailer should be towed. Whitaker (D) claims he told P to watch out and move out of the way so that he could hook up the tow truck to the tractor-trailer. P moved to a grassy area on the passenger side of the truck. Whitaker (D) did not keep track of P's whereabouts. Whitaker (D) then hooked the tow truck to the tractor-trailer and raised the front end approximately twelve to eighteen inches off the ground. Whitaker (D) then got under the tractor and attached chains. This process took fifteen to twenty minutes. Whitaker (D) then walked down the passenger side of the tow truck, rounded the front, and walked down the driver's side toward the rear of the tow truck to activate the controls. Whitaker (D) saw the driver's door of the tractor open. P started climbing out of the cab, but he lost his balance and fell mid-air into the passenger side of a box truck passing by in the right lane of the interstate. P’s leg required amputation above the knee. P claims that he checked the tractor's mirrors and waited for cars to pass before starting to climb out of the cab. As he lowered his foot to the bottom step, he 'got the sensation of the truck moving' and lost his balance. The jury found negligence on both sides and assessed seventy-five percent comparative fault to Ds and twenty-five percent comparative fault to P. The jury awarded compensatory damages of $2,000,513.00, which the district court reduced by twenty-five percent to $1,500,384.75. Ds appealed. D claims in part that it was error for the court not to give a jury instruction on intervening and superseding cause.