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Date: 07-04-2013

Case Style: Carol Parsons v. Old Dominion Freight Line, Inc.

Case Number: CJ-2012-2022

Judge: Jefferson D. Sellers

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Donald E. Smolen, Sr. and Bryan Smith

Defendant's Attorney: Robert Coffey and Stephen Lee McClellan

Description: Carol Parsons, Robert Frazier, Jr. and John Wilson sued Old Dominion Freight Line, Inc. on negligence theories claiming:

That at all times material hereto the Plaintiffs were residents of Tulsa County, State of Oklahoma.

That at all times material hereto the Defendant, OLD DOMINION FREIGHT LINE, INC., was a corporation lawfully operating in the State of Oklahoma. -

That the facts that give nse to this claim arose in Tulsa County, Oklahoma

That this Court has jurisdiction over the parties and subject matter of this action.

COUNT I

GENERAL NEGLIGENCE

That on or about the 4th day of June, 2010, at 2129 Dawson Road in the City of Tulsa, State of Oklahoma, the Defendant, OLD DOMINION FREIGHT LINE, iNC., its agents, servants or employees, were negligent and/or grossly negligent in the handling of hazardous materials, more specifically, a substance known as chloromethlylnapthylene. This substance was discharged into the air near Plaintiff’s homes which contaminated the air supply that the Plaintiffs consumed. Upon information and belief, at all times mentioned herein, the discharge of said chemical and other contaminants was the result of improper or insufficient handling, storage or maintenance, practices of said corrosive materials including, but not limited to chloromethlylnapthylene, and that. the said discharge of said industrial and/or hazardous material and other pollutants and hazardous substances were the result of Defendant’s negligence including its agents, servants or employees.

Upon information and belief, the Defendant maintained its activities and its facilities in such a negligent and improper manner as to violate Oklahoma’s Environmental QualityAct, 27 O.S. § 1-1- 101 et. seq.

As a result of the aforementioned release of hazardous materials into the enviromnent, attributed to and caused solely by the Defendant’s negligence and/or gross negligence of handling hazardous materials, the Plaintiffs have been and continue to be exposed to hazardous chemicals. The Plaintiffs have become physically sick and ill, manifesting such symptoms consistent with toxic exposure as to necessitate medical treatment. Plaintiffs continue to live in constant fear of fUture physical illness, particularly with respect to the health of their families.

That as a result of the negligence of the Defendant’s agents, servants and employees, the Plaintiffs should be granted compensatory damages for Plaintiffs’ personal injury, emotional distress and loss of quality of life and such other and reasonable damages in an amount of $62,000.00 for each Plaintiff together with Plaintiffs’ litigation costs and fees and all of the relief that this court deems just and equitable.

COUNT II

PUNITIVE DAMAGES

COMES NOW the Plaintiffs, and hereby re-allege and re-adopt the allegations contained in Count las if fully set forth herein.

Defendant owed a duty of care to the Plaintiffs to reasonably own and operate a storage facility of hazardous materials and to respond to said spills and releases of hazardous materials and, prevent such releases and spills, and to take all measures reasonably necessary to inform and protect the public, including the Plaintiffs from contamination oftheir air supply and exposure to hazardous chemicals.

Defendant, including its officers, agents and/or employees knew or in the exercise of reasonable care should have known, its operations could result in the release or the threat of release of hazardous gases and chemicals into the atmosphere immediately surrounding the Defendant’s facility.

Defendant, including its officers, agents and/or employees, knew or with the exercise of reasonable care should have known or the dangerous, hazardous or toxic nature of the hazardous chemicals released by the Defendant and that they were capable of causing serious personal injury to persons by inhalation of such chemicals and further polluting the air supply of the Plaintiffs’s property.

Defendant, including its officers, agents and/or employees should have taken reasonable precautions or measures to prevent or mitigate the releases and spills of hazardous chemicals including the design and operation of process systems so that such releases and spills do not occur, as well as adequate planning for such spills or releases or other emergencies.

Defendant, including its officers, agents and/or employees, knew, or in the exercise of reasonable care, should have known, that once a spill or release occurred, they should take reasonable measures to protect the general public by issuing immediate and adequate warnings to nearby residents, including the Plaintiffs, and furthermore to emergency personnel and to all appropriate public officials.

Defendant, including its officers, agents and/or employees, knew or in the exercise of reasonable care, should have known, that spills and releases caused by the Defendant’s negligent conduct and the resultant harm to the Plaintiffs were forseeable and an inevitable consequence of Defendant’s acts and/or omissions in the matter in which they engaged in the operation and storage and transporting of hazardous materials.

Defendant, including its officers, agents and/or employees, acted unreasonably and negligently causing the releases and spills and the contamination of Plaintiffs’ air and failed to take reasonable measures and precautions necessary to avoid and/or respond to the spills and releases of hazardous chemicals and to protect the public, including the Plaintiff, from hazardous chemicals,

Defendant’s acts and/or omissions mentioned herein were the proximate cause of the damages and injuries to the Plaintiffs alleged herein.

Some or all of the acts and/or omissions of the Defendant were grossly, recklessly or wantonly negligent, and were done with utter disregard for the consequences of the Plaintiffs and other persons and therefore the Plaintiffs are entitled to an award of punitive damages.

That the Plaintiffs, in no way, caused or contributed to the damages and injuries they have sustained,

Plaintiffs’ claim punitive damages of $10,000.00 for Defendant’s violations pursuant to 27 A O.S. §2-3-504 as well as costs and fees and all other relief this Court deems just and equitable.

COUNT III

STRICT LIABILITY

COMES NOW the Plaintiffs and hereby re-allege and re-state the allegations contained in Count land Count Has if fully set forth herein.

The hazardous materials used, processed and stored by the Defendant is of a toxic and hazardous nature, capable of causing sevcre personal injuries and damages to persons and property coming in to contact with them and therefore are both hazardous and abnormally dangerous.

The use, processing, storage and activity of the Defendant adjacent to the properties of the Plaintiffs was and continues to be an abnormally dangerous and ultra hazardous activity, subjecting persons coming into contact with a hazardous material with severe personal injuries, regardless of degree of caution the Defendant may have exercised. Defendant, by engaging in abnormally dangerous and ultra hazardous activities, are strictly liable with regard to fault for all the damages and injuries to Plaintiffs proximately caused by the release of said materials caused by the Defendant and to remediate the contamination.

Each Plaintiff is therefore entitled to damages in an amount of $62,000.00 together with the costs of this action.

1. This Defendant does not have the requisite knowledge or informatiod to admitjr deny the allegations contained in unnumbered paragraph 1 of the Plaintiffs’ Petition; therefore, arne ienied, and Defendant demands strict proof thereof.

2. This Defendant admits the allegations in unnumbered paragraph 2 of Plaintiffs’ Petition, that it is a corporation lawfully operating in the State of Oklahoma.

3. This Defendant does not have the requisite knowledge or information to admit or deny the allegations contained in unnumbered paragraph 3 of the Plaintiffs’ Petition; thi’efore, same is denied, and Defendant demands strict proof thereof.

4. This Defendant does not have the requisite knowledge or information to admit or deny the allegations contained in unnumbered paragraph 4 of the Plaintiffs’ Petition; therefore, same is denied, and Defendant demands strict proof thereof.

5. This Defendant does not have the requisite knowledge or information to admit or deny the allegations contained in unnumbered paragraph 5 of Count I of the Plaintiffs’ Petition, therefore same is denied, and Defendant demands strict proof thereof

6. This Defendant does not have the requisite knowledge or information to admit or deny the allegations contained in unnumbered paragraph 6 of Count I of the Plaintiffs’ Petition, therefore same is denied, and Defendant demands strict proof thereof.

7. This Defendant denies the facts and allegations contained in unnumbered paragraph 7 of Count I of Plaintiffs’ Petition and demands strict proof thereof.

8. This Defendant denies the facts and allegations contained in unnumbered paragraph 8 of Count I of Plaintiffs’ Petition and demands strict proof thereof.

9. This Defendant denies the facts and allegations contained in unnumbered paragraph 9 of Count I of Plaintiffs’ Petition and demands strict proof thereof

10. Unnumbered paragraph 10 of Count II of Plaintiffs’ Petition contains only legal conclusions and requires no response from this answering Defendant. To the extent a response is deemed required, this Defendant denies any allegations of negligence andJor damages contained in unnumbered paragraph 10 of Count II of Plaintiffs’ Petition and strict proof is demanded thereol.

11. Unnumbered paragraph 11 of Count II of Plaintiffs’ Petition contains only legal conclusions and requires no response from this answering Defendant. To the extent a response is deemed required, this Defendant denies any allegations of negligence and/or damages contained in unnumbered paragraph 10 of Count II of Plaintiffs’ Petition and strict proof is demanded thereof.

12. Unnumbered paragraph 12 of Count II of Plaintiffs’ Petition contains only legal conclusions and requires no response from this answering Defendant. To the extent a response is deemed required, this Defendant denies any allegations of negligence and/or damages contained in unnumbered paragraph 10 of Count II of Plaintiffs’ Petition and strict proof is demanded thereof.

13. Unnumbered paragraph 13 of Count II of Plaintiffs’ Petition contains only legal conclusions and requires no response from this answering Defendant. To the extent a response is deemed required, this Defendant denies any allegations of negligence and/or damages contained in unnumbered paragraph 10 of Count TI of Plaintiffs’ Petition and strict proof is demanded thereof

14. Unnumbered paragraph 14 of Count II of Plaintiffs’ Petition contains only legal conclusions and requires no response from this answering Defendant. To the extent a response is deemed required, this Defendant denies any allegations of negligence and/or damages contained in unnumbered paragraph 10 of Count 11 of Plaintiffs’ Petition and strict proof is demanded thereof

15. Unnumbered paragraph 15 of Count IT of Plaintiffs’ Petition contains only legal conclusions and requires no response from this answering Defendant. To the extent a response is deemed required, this Defendant denies any allegations of negligence and/or damages contained in unnumbered paragraph 10 of Count 11 of Plaintiffs’ Petition and strict proof is demanded thereof

16. This Defendant denies the facts and allegations contained in unnumbered paragraph 16 of Count II of Plaintiffs’ Petition and demands strict proof thereof

17. This Defendant denies the facts and allegations contained in unnumbered paragraph 17 of Count II of Plaintiffs’ Petition and demands strict proof thereof.

18. This Defendant denies the facts and allegations contained in unnumbered paragraph 18 of Count II of Plaintiffs’ Petition and demands strict proof thereof.

19. This Defendant does not have the requisite knowledge or information to admit or deny the allegations contained in unnumbered paragraph 19 of the Plaintiffs’ Petition, therefore same is denied, and Defendant demands strict proof thereof

20. Unnumbered paragraph 20 of Plaintiffs’ Petition contains no facts or allegations, and consists solely of a prayer for relief in the form of Punitive Damages, requiring no response from this Defendant. To the extent a response is deemed required, this Defendant denies any claims of negligence or conduct justifving an award of punitive damages and strict proof is demanded thereof 21. This Defendant does not have the requisite knowledge or information to admit or deny the allegations contained in unnumbered paragraphs 21 of Count III of the Plaintiffs’ Petition, therefore same is denied, and Defendant demands strict proof thereof.

22. This Defendant does not have the requisite knowledge or information to admit or deny the allegations contained in unnumbered paragraphs 22 of Count III of the Plaintiffs’ Petition, therefore same is denied, and Defendant demands strict proof thereof.

23. This Defendant does not have the requisite knowledge or information to admit or deny the allegations contained in unnumbered paragraphs 23 of Count III of the Plaintiffs’ Petition, therefore same is denied, and Defendant demands strict proof thereof.

24. Unnumbered Paragraph 24 of Count III of the Plaintiffs’ Petition contains no facts or allegations and is only a prayer for relief, requiring no response from this Defendant. To the extent a response is deemed required, this Defendant denies any facts or allegations of negligence or damages as a result, and strict proof is demanded thereof

25. This Defendant specifically denies it was negligent and demands strict proof thereof.

26. This Defendant specifically denies Plaintiffs’ allegations for punitive damages and demands strict proof thereof.

27. This Defendant specifically denies Plaintiffs” allegations for Strict Liability and demands strict proof thereof.

28. This Defendant specifically denies Plaintiffs suffered any injury as a result of any chemical spill and strict proof is demanded thereof.

AFFIRMATIVE DEFENSES

1. For further answer and defense, this Defendant would state should it be determined to have been negligent, which this Defendant does not admit, but specifically denies, that the contributory negligence of the Plaintiffs is of such an amount as to bar any recovery by each of them.

2. For further answer and defense, this Defendant would state that Plaintiffs failed to mitigate damages.

3. For further answer and defense, this Defendant would state that the damages and/or injuries alleged in the Plaintiffs’ Petition are not causally connected to the subject incident.

4. For further answer and defense, this Defendant would state that the injuries complained of in Plaintiffs’ Petition are the result of health care problems which developed subsequent to the date of the alleged accident, which were neither caused nor aggravated by the Defendant and for which this Defendant is not liable.

5. For further answer and defense, this Defendant would state that the injuries complained of in Plaintiffs’ Petition are the result of preexisting health problems that were neither caused nor aggravated by the Defendant and for which the Defendant is not liable.

6. For further answer and defense, this Defendant would state the Plaintiffs failed to use ordinary care with due regard to the existing conditions to prevent injury to themselves.

This Defendant respectfully reserves the right to amend this Answer, together with the inclusion of different affirmative defenses.

WHEREFORE, premises considered, this Defendant prays for judgment in its favor and against the Plaintiff, together with their costs of this action and such other and ifirther relief as the Court deems is just and equitable.

Outcome: COME NOW the Plaintiffs Carol Parsons, John Wilson and Edward Rushing, by and through their attorney of record, Smolen & Smith, and do hereby dismiss with prejudice this case and any and all causes of action alleged or asserted therein as against the defendant, Old Dominion Freight Line, Inc.

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