IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO Paul W. Vincent, as Administrator of the Estate of Daniel L. Vincent, and on behalf of the surviving spouse, CASE NO. children, parents and siblings of the Deceased. 101 Central Plaza South JUDGE 300 Chase Tower Canton, Ohio 44702, Plaintiff, v. COMPLAINT FOR WRONGFUL Kimble Recycling and Disposal Inc. DEATH c/o Keith Kimble, Statutory Agent 3596 State Route 39 NW Dover, Ohio 44622, (Jury Demand Endorsed) and J and J Refuse Inc. c/o Keith Kimble, Statutory Agent 3596 State Route 39 NW Dover, Ohio 44622, and James R. Gehring 6834 Wales Ave NW Canton, Ohio 44720, Defendants. Now comes the Plaintiff, Paul W. Vincent, as Administrator of the Estate of Daniel L. Vincent, and on behalf of the surviving spouse and children of the deceased, by and through his undersigned Counsel, and for his Complaint against the above-captioned Defendants, states as follows - 1 -
PARTIES, JURISDICTION AND VENUE 1. Paul W. Vincent is the duly appointed Administrator of the Estate of his brother and Plaintiff s Decedent Daniel L. Vincent (hereinafter Vincent ) by the Portage County Probate Court on July 22, 2014 in Case No. 2014ES00236 (Letters of Authority attached hereto as Exhibit A ). 2. Plaintiff brings this wrongful death action as the personal representative for the exclusive benefit of the heirs of Daniel L. Vincent, including but not limited to Victoria Vincent, who was five months pregnant at the time of the accident, as the surviving spouse and mother of Decedent s children, Madison Rose Vincent, age five, and Gracie Danielle Lane Vincent, born March 17, 2014. 3. At all times relevant herein Defendant Kimble Recycling and Disposal Inc. ( Kimble ) was a for-profit corporation duly organized in the State of Ohio and doing business in the State of Ohio, which business includes waste collection and disposal services. At all times relevant herein, Defendant Kimble was acting by and through its employees, agents, managers, and/or supervisors. At all times relevant herein, Defendant Kimble was the employer of Defendant, James Gehring. 4. At all times relevant herein Defendant J & J Refuse Inc. ( J & J ) was a for-profit corporation duly organized in the State of Ohio and doing business in the State of Ohio, which business includes the transport of waste for disposal. At all times relevant herein, Defendant J & J was acting by and through its employees, agents, managers, and/or supervisors under a consolidation with Kimble (J & J and Kimble are collectively referred to as Kimble ). - 2 -
5. James R. Gehring ( Gehring ) was working for Kimble when the 1999 Volvo truck and 2014 MAC trailer he was operating collided with Vincent s 2005 Chevrolet Cobalt resulting in Vincent s death. 6. The wrongful conduct of which Plaintiff complains of in the within Complaint resulted in the untimely and tragic death of Daniel L. Vincent in the City of Stow, County of Summit, and State of Ohio. 7. The Defendants conducted activity in Summit County, Ohio, and the actions giving rise to this Complaint occurred in Summit County, Ohio. Thus, venue is proper in Summit County, Ohio. 8. This Court has jurisdiction over this matter and over the parties. GENERAL FACTUAL ALLEGATIONS 9. Plaintiff incorporates Paragraphs 1 through 8 above as if fully re-written and realleged 10. On November 29, 2013, at approximately 1130p.m., Decedent Vincent was lawfully operating his 2005 Chevrolet Cobalt on State Route 8 NB towards the 10.2 mile marker. 11. Defendant Gehring was operating a 2014 MAC trailer and a 1999 Volvo semi-truck OH registration TQF4998 on State Route 8 NB when he pulled over to the shoulder of the highway to attempt to correct defective taillights on a Kimble trailer being driven by Gehring s fellow Kimble employee. 12. Defendant Gehring pulled off the roadway and onto the right shoulder in an area where it was not illuminated and within one mile of the upcoming Seasons Road exit ramp. The Seasons road exit had plenty of parking areas in which Gehring and his fellow employee could have parked to check any tail light deficiencies. - 3 -
13. Defendant Gehring abruptly re-entered the highway in violation of R.C. 4511.44, cutting off Vincent s vehicle and causing Vincent s vehicle to strike the Kimble trailer operated by Gehring. The force of the collision was so extreme that it spun Vincent s vehicle clockwise across all traffic lanes, into the median on the opposite side of the road, and ultimately into a traveling 2003 Mitsubishi Eclipse owned by Diamond Atkins ( Atkins ). 14. Defendant Gehring breached his duty owed to Vincent when he failed to use reasonable care in operating his vehicle, pulling off onto the shoulder and then failing to yield the right-of-way of Vincent on the highway when he re-entered the highway from the shoulder. 15. Defendant Gehring did not provide enough distance between his vehicle and Vincent s and proximately caused the collision with Vincent s vehicle, thereby breaching his duties owed to Vincent. 16. As a direct and proximate cause of Gehring s negligence and breach of duties owed to Vincent, Vincent suffered his untimely death. 17. Gehring should not have been driving the unsafe vehicle that caused this crash with Vincent as Kimble should have known it had mis-matched brakes on the tractor, OH TQF4998. This unsafe vehicle should never have been on the roadway at the time of this accident. 18. As reported by The Federal Motor Carrier Safety Administration ( FMCSA ), which is under the U.S. Department of Transportation, the industry average of inspections yielding out-of-service violations is 20.7%, however, Kimble s average is almost double with 39.4% of out-of-service violations found in inspections. Furthermore, FMCSA also reports that, regarding vehicle maintenance and on-road performance, - 4 -
92% of motor carriers in the same safety event group as Kimble have better performance than Kimble (rated 92 on a scale of 0-100 with 100 being the worst.) 19. The night of Vincent s death, after he had been taken to the hospital by ambulance, Stow Police Ptl. Robert S. Molody reports Kimble s agent and Recycling Route Supervisor, Robert L. Braden, was at the crash scene. As the crash team was finishing up their work, Braden asked Officer Molody How long do you think your team will have my trucks? I have several trucks being rebuilt right now so we need these trucks to keep working. This callous statement from a Kimble supervisor was without any regard for the fact that those trucks had just been involved in a violent crash that ended a life, that being of Daniel L. Vincent. 20. Kimble s disregard for the life of Daniel L. Vincent and their purposeful intention to put unsafe vehicles on our state highways with unsafe drivers is a reckless and conscious disregard for the rights of others. COUNT ONE WRONGFUL DEATH ACTION 21. Plaintiff incorporates Paragraphs 1 through 20 above as if fully re-written and realleged 22. Defendants owed Vincent a duty to use reasonable care when operating the semitruck and trailer on the state highway. As a direct and proximate result of Gehring s negligent actions, Daniel L. Vincent s death was wrongful within the meaning of Ohio s Wrongful Death Statute. 23. Plaintiff brings this action for the benefit of the Estate of Daniel L. Vincent. Daniel L. Vincent died leaving heirs at law and/or next of kin surviving him, who had pecuniary or other interests in his life and this action is brought on their behalf under - 5 -
the statutes of the State of Ohio, including but not limited to O.R.C. 2125.02, for such cases made and provided. 24. At the time of his death, Daniel L. Vincent, deceased, was not provided and/or afforded the opportunity to live a full and productive life, nor the chance to bond with and love, or in some instances even meet his heirs at law and/or next of kin now and in the future, and that by reason of the wrongful death of Daniel L. Vincent, the decedent s heirs at law and/or surviving spouse and next of kin have suffered severe mental anguish and emotional distress, a loss of his society and companionship, consortium and pecuniary losses. 25. At all times pertinent, Plaintiff, Paul W. Vincent, Administrator for the Estate of Daniel L. Vincent, deceased, states that by reason of Decedent s wrongful death, the Decedent s statutory beneficiaries have been damaged, deprived of his society and companionship, suffered a loss of future services and earnings, love and affection, a loss of future inheritance, severe mental anguish and emotional distress, and have sustained pecuniary losses, including but not limited to, medical expenses and funeral expenses. COUNT TWO SURVIVAL ACTION 26. Plaintiff incorporates Paragraphs 1 through 25 above as if fully re-written and realleged 27. Plaintiff, as the Administrator of the Estate of Daniel L. Vincent, deceased, and pursuant to R.C. 2125.01 brings this claim on behalf of Plaintiff s decedent. 28. Plaintiff states Defendants caused the injuries and resulting death of Plaintiff s decedent as stated above. - 6 -
29. As a direct and proximate result of Defendants wrongful conduct, Plaintiff s decedent suffered massive and horrific injuries that ultimately led to his untimely death. 30. As a direct and proximate result of Defendants wrongful conduct, Plaintiff s decedent suffered physical and mental pain until his tragic death. 31. As a direct and proximate result of Defendants wrongful conduct, Plaintiff s decedent suffered property damage to, among other things, his personal items and further suffered those damages as set forth hereinabove. COUNT THREE LOSS OF CONSORTIUM 32. Plaintiff incorporates Paragraphs 1 through 31 above as if fully re-written and realleged 33. Plaintiff states that he is the personal representative of the Estate of Daniel L. Vincent, deceased, and as a direct and proximate result of the Defendants negligence, as set forth above, his heirs have suffered a loss of a husband, father, son, sibling, uncle, and son-in-law s care, comfort, services and consortium in the past and will continue to suffer said losses in the future. COUNT FOUR NEGLIGENCE 34. Plaintiff incorporates Paragraphs 1 through 33 above as if fully re-written and realleged 35. Defendant Gehring had a duty to act reasonably and use due care while driving. Defendant Gehring had a duty to pay attention and to obey the laws and rules of the State of Ohio and to yield the right-of-way of the highway, in addition to operating commercial vehicles that are safe and free from violations. - 7 -
36. As a direct result of the automobile collision and the negligence of Defendant Gehring, Daniel L. Vincent suffered conscious pain and suffering, sustained fatal bodily injuries, was admitted to Akron City Hospital at approximately 1156p.m., and pronounced dead at 1235a.m. 37. As a direct result of the automobile collision and the negligence of Defendants, the Plaintiffs have suffered conscious pain and suffering, incurred medical expenses, funeral expenses and other damages. 38. All of the above damages were directly and proximately caused by the aforementioned negligence of Defendants, and were incurred without contributory negligence or assumption of the risk on the part of the decedent, Daniel L. Vincent, or an opportunity for Daniel L. Vincent to avoid the accident. COUNT FIVE NEGLIGENCE PER SE 39. Plaintiff incorporates Paragraphs 1 through 38 above as if fully re-written and realleged 40. Defendant Gehring had a duty to obey the laws and rules of the State of Ohio and to yield the right-of-way of the highway in accordance with R.C. 4511.44. 41. As a direct result of the negligence per se of Defendant Gehring, Vincent suffered conscious pain and suffering, sustained fatal bodily injuries, was admitted to Akron City Hospital at approximately 1156p.m., and subsequently pronounced dead at 1235a.m. 42. As a direct result of the automobile collision and the negligence per se of Defendants, the Plaintiffs have suffered conscious pain and suffering, incurred medical expenses, funeral expenses and other damages. - 8 -
43. All of the above damages were directly and proximately caused by the aforementioned negligence per se of Defendants, and were incurred without contributory negligence or assumption of the risk on the part of the decedent, Daniel L. Vincent, or an opportunity for Daniel L. Vincent to avoid the accident. COUNT SIX RESPONDEAT SUPERIOR 44. Plaintiff incorporates Paragraphs 1 through 43 above as if fully re-written and realleged 45. At all times relevant hereto, Defendant Gehring was employed by, and was an agent, servant and/or employee of Defendant Kimble. 46. The above-described acts of Defendant Gehring were committed within the scope of his employment with Defendant Kimble, in that they were committed while on duty and in furtherance of Defendant Kimble. 47. As Defendant Gehring s employer, Defendant Kimble is responsible for all of the negligent acts committed by Defendant Gehring within the scope of his employment. COUNT SEVEN NEGLIGENT ENTRUSTMENT 48. Plaintiff incorporates Paragraphs 1 through 47 above as if fully re-written and realleged 49. Defendant Gehring was employed by Defendant Kimble for approximately 14 days before the accident. 50. The aforementioned acts described herein were committed within the scope of his employment with Defendant Kimble and Defendant Kimble is responsible for those acts performed within the scope of Defendant Gehring s employment. 51. Defendant Kimble supplied and arranged for the use of unsafe equipment to Defendant Gehring that should not have been on the road. - 9 -
52. Defendant Kimble hired Defendant Gehring as a truck driver. Defendant Kimble had a duty to investigate Defendant Gehring s background and his driving record and history, including but not limited to, his previous conviction for driving an unsafe commercial vehicle. 53. Defendant Kimble failed to properly investigate Defendant Gehring s background and driving history and made insufficient efforts to investigate whether or not Defendant Gehring was a safe, fit and competent driver and then further placed him in an unsafe vehicle. 54. Defendant Kimble knew, had reason to know, or should have known, that Defendant Gehring had a record of incompetent driving and that he would be likely to use the equipment provided in a manner involving an unreasonable risk of physical harm. 55. Defendant Kimble had reason to know or should have known, that the employment with Defendant Gehring and his use of an unsafe vehicle could involve the risk of physical harm to others. 56. The Decedent, Daniel L. Vincent, was a member of a foreseeable class of persons who would be at risk of suffering physical harm as a result of Defendant Gehring s operation of an unsafe vehicle. 57. The negligence of Defendant Kimble in entrusting the unsafe equipment to Defendant Gehring concurrently and proximately caused injury to the Plaintiff. COUNT EIGHT NEGLIGENT HIRING AND RETENTION 58. Plaintiff incorporates Paragraphs 1 through 57 above as if fully re-written and realleged 59. Defendant Gehring was employed by Defendant Kimble for fourteen days before the accident. - 10 -
60. The aforementioned acts described herein were committed within the scope of his employment with Defendant Kimble. 61. Defendant Kimble is responsible for those negligent acts performed within the scope of Defendant Gehring s employment. 62. Defendant Kimble hired Defendant Gehring as a truck driver. 63. Defendant Kimble had a duty to investigate Defendant Gehring s driving record and driving history. 64. Defendant Kimble failed to properly investigate Defendant Gehring s driving history, and made insufficient efforts to investigate whether or not Defendant Gehring was a safe, fit and competent driver. 65. Defendant Kimble knew, had reason to know or should have known, that Defendant Gehring had a record of reckless and incompetent driving, and he would be likely to use unsafe equipment provided in an unsafe manner involving unreasonable risk of physical harm. 66. Defendant Kimble knew, had reason to know or should have known, that by contracting and employing Defendant Gehring, his use of a truck could involve the risk of physical harm to others. The acts and omissions of Defendant Kimble caused the Plaintiff s injuries and death. 67. The negligence of Defendant Kimble in hiring and/or retaining Defendant Gehring was a proximate cause of the Plaintiff s injuries. COUNT NINE LIABILITY FOR PUNITIVE DAMAGES 68. Plaintiff incorporates Paragraphs 1 through 67 above as if fully re-written and realleged - 11 -
69. Defendant Kimble must have instructed its agents to place mis-matched brakes on the vehicle driven by Gehring thereby intentionally placing an unsafe vehicle on the road for its own financial gain with conscious disregard for the travelers on Ohio s roadways. 70. The acts of Defendants with respect to employing and placing Gehring on the road in an unsafe vehicle demonstrates actual malice and a reckless disregard for the rights of others, and to the rights and interests of Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendants individually and/or jointly and/or severally or concurrently in an amount in excess of Twenty-Five Thousand Dollars ($25,000.00), plus interest, costs, punitive damages, and attorney fees and other such relief as the Court deems just and equitable. Respectfully submitted, /s/laura L. Mills Laura L. Mills (0063011) Law Offices of MILLS, MILLS, FIELY & LUCAS, LLC 101 Central Plaza South 300 Chase Tower Canton, Ohio 44702 Phone 330-456-0506 Fax 330-456-9002-12 -
all issues. JURY DEMAND Now comes the Plaintiff, and hereby demands a trial by jury in the within action on Respectfully submitted, /s/laura L. Mills Laura L. Mills (0063011) Law Offices of MILLS, MILLS, FIELY & LUCAS, LLC INSTRUCTIONS TO CLERK Please serve the above named Defendants by certified mail, return receipt requested. /s/laura L. Mills Laura L. Mills (0063011) Law Offices of MILLS, MILLS, FIELY & LUCAS, LLC - 13 -