Date: 12-03-2013

Case Style: Carl Wilson, Jr. v. Mark Steven McClary

Case Number: CJ-2012-380

Judge: Linda G. Morrissey

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Carol Ann Seacat

Defendant's Attorney: Andrea L. Medley

Description: Carl Wilson, Jr. sued Mark Steven McClary on an auto negligence theory:

I.

The Defendant is a citizen and resident of Tulsa County, State of Oklahoma. The cause of action complained of herein occurred in Tulsa County, State of Oklahoma. Thus, this Court has jurisdiction over the subject matter and parties hereto.

II.

This accident occurred on or about February 9, 2010, in the City of Tulsa, in Tulsa County, State of Oklahoma. The accident occurred at or near the intersection of Interstate 244 Eastbound and Interstate 444 Eastbound. Carl Wilson was driving a 2007 Peterbuilt Truck, going North on the Interstate 444 Eastbound ramp. The Defendant, Mark Steven McClary, was driving a 2007 Chevrolet and also going North, exiting onto the interstate 444 Eastbound ramp from Interstate 244 Eastbound, following behind the Plaintiffs vehicle.

The Defendant, Mark Steven McClary, changed lanes abruptly in an attempt to exit onto Interstate 444 Eastbound and negligently lost control of his vehicle, struck a concrete barrier and entered into the Plaintiff’s lane, struck the Plaintiffs vehicle, resufting in personal injuries and damages to the Plaintiff.

The Defendant’s negligence was the direct and sole cause of the accident and resulting injuries and damages to the Plaintiff.

Ill.

As the sole and direct result of the Defendant’s negligence aforedescribed, the Plaintiff sustained temporary and permanent personal injuries and has been damaged therefrom as more specifically set out hereinafter:

a. Past and future pain and suffering to the Plaintiffs neck, left shoulder and back;

b. Past and future medical expenses, including but not limited to surgery;

c. Disability; and

d. Lost wages and loss of earning ability.

WHEREFORE, Plaintiff, Carl Wilson, prays for judgment against the Defendant, Mark Steven McClary, for the damages afordescribed and in his favor, each in an amount in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code, and for all further relief the Court may deem just and proper.

Defendant, Mark Steven McClary, appeared and answered as follows:

1.

Upon information and belief, the facts and allegations set forth in Paragrph 1 of Plaintiffs Petition are admitted.

2.

It is admitted that a collision occurred between the Plaintiff, CARL WILSON, JR., and the Defendant, MARK STEVEN MCCLARY, as set forth in Paragraph 2 of Plaintiffs Petition. Defendant will admit fault for the accident. Defendant specifically denies the description of the accident set forth in Paragraph 2 of Plaintiff’s Petition. Defendant specifically denies that Plaintiff was injured as a result of the accident.

3.

The facts and allegations set forth in Paragraph 3 of Plaintiff’s Petition are denied.

4.

This Defendant denies generally and specifically each and every material allegation contained in the Petition of the Plaintiff except that which may be heretofore admitted. Defendant readopts and realleges the statements previously made herein.

AFFIRMATIVE DEFENSES AND AVOIDANCES

5.

For further answer and defense, should the Defendant be found negligent, which is not admitted but is expressly denied, this Defendant states that his negligence was not the direct cause of Plaintiffs alleged injuries and damage.

6.

For fUrther answer and defense, the Defendant would state that no recovery of damages should be allowed for any losses that the Plaintiff reasonably could have avoided and failed to do so.

7.

For fUrther answer and defense, this Defendant states that the injuries complained of in Plaintiffs Petition may be the result of preexisting health problems that were neither caused nor aggravated by this Defendant and for which this Defendant is not liable.

8.

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

9.

For further answer and defense, this Defendant reserves the right to plead additional affirmative defenses and amend his Answer upon the completion of discovery.

WHEREFORE, premises considered, Defendant, MARK STEVEN MCCLARY, prays for judgment in his favor and against the PlaintitE together with his costs of this action and such other and further relief as the Court deems is just and equitable.

JURY TRIAL DEMANDED

The Pre-Trial Order provided in part:

* * *

2. General Statement of Facts:

The Plaintiff alleges that he was injured in a motor vehicle accident that occurred on February 9, 2010 on the 1-244 eastbound exit ramp to 1-244 in Tulsa County. The Plaintiff alleges that the Defendant was negligent and that his negligence was the sole a direct cause of the Plaintiff’s injuries. The Defendant has admitted fault for the accident, but denies the Plaintiff’s injuries.

3. Plaintiffs Contentions:

A. List All Theories of Recovery and the Applicable Statutes, Ordinances, and common Law Rules Relied Upon.

1) Common Law Negligence

2) Negligence per se —47 O.S. §11-303(1), 11-309(2), and 11-901b

B. List Damages or Relief Sought.

Medical bills, pain and suffering and disability, all in the past and future, loss of income, and loss of earning capacity, all in excess of $10,000.00.

4. Defendants Contentions:

A. List All Theories of Defense and the Applicable Statutes, Ordinances, and Common Law Rules Relied Upon.

1) The Defendant specifically denies that the Plaintiff was injured as a result of the accident.

2) The Defendant’s negligence was not the direct cause of the Plaintiff’s alleged injuries and damages.

3) No recovery of damages should be allowed for any losses that the Plaintiff reasonably could have avoided and failed to do so.

4) The injuries complained of by the Defendant may be the result of preexisting health problems that were neither caused nor aggravated by the Defendant and for which the Defendant is not liable.

5. The injuries complained of by the Defendant may be 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 the Defendant is not liable.

* * *

The Statement of Case read to the jury by the judge before the began its deliberations stated:

The parties to the case are Plaintiff, Carl Wilson, Jr., and Defendant, Mark Steven McClary.

This action arises from an automobile collision that occurred on February 9, 2010, on the Highway 75 eastbound exit ramp to Highway 51 in Tulsa County, Oklahoma. Defendant admits liability for causing the accident, but denies the nature and extent of injuries claimed by Plaintiff.

These are the issues for you to determine in this case.

Outcome: 12-03-2013 CTFREE - 87647189 Dec 3 2013 2:19:02:340PM - $ 0.00 MORRISSEY, LINDA G: NOW ON THIS 3RD DAY OF DECEMBER, 2013, THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA RECONVENES PURSUANT TO ADJOURNMENT. PRESENT AND PRESIDING: HON. LINDA G. MORRISSEY, DISTRICT JUDGE; GARY WOODSON, COURT REPORTER; BRYAN SCHULER, BAILIFF; KIM O'BRIEN, MINUTE CLERK. PUBLIC PROCEEDINGS WERE HAD TO WIT:

CASE NUMBER: CJ-2012-380

CARL WILSON, JR., PLAINTIFF VS MARK STEVEN MCCLARY, DEFENDANT

CASE CALLED FOR JURY TRIAL. BOTH SIDES PRESENT IN OPEN COURT AND ANNOUNCE READY FOR TRIAL. PLAINTIFF PRESENT AND REPRESENTED BY CAROL SEACAT. DEFENDANT PRESENT AND REPRESENTED BY ANDREA MEDLEY.

THE JURORS ARE CALLED AND SWORN AS TO QUALIFICATIONS. THE JURY IS IMPANELED AND EXAMINED FOR CAUSE. THE JURORS ARE ACCEPTED FOR CAUSE. 1 JUROR EXCUSED FOR CAUSE. 3 PEREMPTORY CHALLENGES ARE MADE BY THE PLAINTIFF. 3 PEREMPTORY CHALLENGES ISSUED BY THE DEFENDANT. TWELVE JURORS ARE ACCEPTED AND SWORN TO TRY THE CAUSE.

OPENING STATEMENTS ARE MADE. THREE (3) WITNESSES SWORN. GARY WOODSON, COURT REPORTER. PLAINTIFF PRESENTS EVIDENCE AND RESTS. DEFENDANT PRESENTS EVIDENCE AND RESTS. BOTH SIDES REST.

THE JURY IS INSTRUCTED AS TO THE LAW. CLOSING ARGUMENTS ARE MADE. THE ALTERNATE JUROR IS EXCUSED. THE SWEARING OF THE BAILIFF IS WAIVED AND AT 11:25 AM ON DECEMBER 3, 2013, THE JURY RETIRES FOR DELIBERATION IN CUSTODY OF THE BAILIFF. AT 1:55 PM, THE JURY RETURNS INTO OPEN COURT WITH THEIR VERDICT, WHICH IS READ IN OPEN COURT, ORDERED RECORDED AND FILED, AND IS, TO WIT: “WE THE JURY IMPANELED AND SWORN IN THE ABOVE-ENTITLED CAUSE DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE PLAINTIFF, CARL WILSON, JR., AND FIX THE DOLLAR AMOUNT OF HIS DAMAGES IN THE SUM OF $37,000.00.

9 JURORS CONCURRING, SIGNED FOREPERSON JURY DISCHARGED.

Plaintiff's Experts:

Defendant's Experts: Dr. David Hicks

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