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Black v. Black

Court of Appeals of Oklahoma, Division II

December 19, 2017

DERRICK BLACK, an individual, Plaintiff/Appellant,
FERRELLGAS, INC., a Delaware Corporation, FERRELLGAS L.P., a Delaware Corporation, and JIMMY CHILDS, an individual, Defendants/Appellees.

          Mandate Issued: 05/09/2018


          Robert L. Rode, David C. Bean, RODE LAW FIRM, P.L.L.C., Tulsa, Oklahoma, for Plaintiff/Appellant.

          Jennifer D. Ary, FRANDEN/FARRIS/QUILLIN GOODNIGHTä“ ä‘…, Tulsa, Oklahoma, for Defendants/Appellees.


         ¶1 Plaintiff Derrick Black appeals the trial court's March 22, 2016, Journal Entry of Judgment, entered on a jury verdict, in Plaintiff's vehicle negligence case. Based on our review of the facts and applicable law, we affirm the judgment.


         ¶2 Plaintiff was severely injured on March 6, 2009, in a single-vehicle, non-contact accident, when he struck a curb while riding his motorcycle. He alleged he was forced to take evasive action when a truck, driven by Defendant Childs, and owned by Defendants Ferrellgas, Inc. and Ferrellgas, L.P., entered his lane from a cross street in order to make a left turn. [1] Plaintiff sued Defendants, alleging negligence.

         ¶3 A key disputed fact, which forms the basis of this appeal, is whether Defendant Childs, who was operating the Ferrellgas truck, had actually entered the intersection, causing Plaintiff to take evasive action. Plaintiff testified he did, and Childs testified he did not.

         ¶4 What is undisputed is that Childs exited an expressway and had driven to the end of the off ramp, stopping at a stop sign, with the intention of turning left. The off ramp had a single right turn lane and two left turn lanes. Childs stopped his truck in the left lane of the double left turn lanes. What happened next is in dispute.

         ¶5 Plaintiff and his motorcycle approached the intersection from Defendant Childs' left, at a disputed rate of speed. [2] Childs testified he first stopped at the wide, painted white stop lines, just before the two narrower, white crosswalk lines. He testified he moved his truck forward from the wide white line to the narrower pedestrian line, and stopped once again. Not seeing Plaintiff approaching because of the curvature of the road, Child's wrote a statement at the scene of the accident at the request of the investigating officer in which he stated:

I was turning left from left hand left turn lane, inter-section was clear until motorcycle passed east bound on Apache stricking [ sic ] meadian [ sic ] becomeing [ sic ] airborn [ sic ] at high rate of speed. When motorcycle approach [ sic ] from my left I stopped.... [3]

         ¶6 In a sworn deposition taken 18 months later and again at trial, Childs stated that he had: "stopped behind the first white line...." [4] Then, "I proceeded to the crosswalk once I knew it was clear and stopped there... to look again to make sure there wasn't any further traffic." [5] Childs continues, "So I pulled up to the line of the crosswalk to look left and back to the right and then looked left again... and that's when I saw the motorcycle approaching." [6] Childs concluded, "When I stated that I had pulled out, I did not specify [to the investigating officer] how far I had pulled out. I had proceeded from the broad white line to the edge of the crosswalk to make sure that the intersection was still clear from both directions." [7]

         ¶7 It was at this point that Plaintiff, riding the motorcycle, encountered the intersection. He testified:

A All I can remember is seeing something moving from that stop sign as I was coming out from under that highway, and... all I can remember is just seeing something white. That's all I can remember.
Q Was it in your lane?
A Yes. [8]

         ¶8 There was no collision between the motorcycle and the Ferrellgas truck, but Plaintiff lost control of the motorcycle and crashed into a curb, suffering severe injuries. Whether the truck moved into the intersection became the focus of much testimony.

         ¶9 Plaintiff cross-examined Childs extensively regarding the apparent contradiction between Childs' written statement and his testimony at trial regarding whether Childs' vehicle was moving into the intersection or merely moving up to the curb before turning.

         ¶10 Defendant's expert, Reynolds, is an expert in accident reconstruction. However, Plaintiff sought to disqualify Reynolds from testifying as an expert for the reason that the facts chosen by Reynolds, upon which he based his expert analysis, consisted of the "self-serving testimony provided by Childs at his deposition nearly eighteen months after the collision for which this testimony was contradictory to Childs' hand written statement at the scene of the collision as well as [Plaintiff's] trial testimony." [9]

         ¶11 At trial, Reynolds was asked:

Q Why did you put Mr. Childs' vehicle starting right there?
A This is the position taken from his deposition that he stopped at the stop bar.... [10]
Q Have you been presented or provided Mr. Childs' statement he gave to the police?
A Yes, I have.
Q Does it in that statement state where he stopped?
A I don't believe--no, it does not.
Q So have you been provided his trial testimony?
A Yes, I have. [11]
Q [] You've read Mr. Childs' trial deposition, haven't you?
A The trial transcript?
Q Yes.
A ...

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