Oregon lawsuit puts big trucking into spotlight
by Bryan Denson, The Oregonian Friday August 21, 2009, 8:42 PM
Jesus Nieves Olivares was candid with a Utah trucking outfit four years ago, when he applied to become a driver: He had gone to prison for killing three men, and he had once been a cocaine user. But this didn't stop the company from giving him a few weeks training and pointing him at the open road.
Nieves Olivares, who hailed from Puerto Rico, wanted to better his life. But U.S. highways quickly proved too much for him. On his first two days on the road, he was ticketed twice for driving too many hours. He got another citation after running off the road in Georgia. Then another when California authorities detained him for lack of rest.
On Nov. 8, 2005, pressured by dispatchers to get a load of bananas to the Winco grocery in Woodburn on time, Nieves Olivares ran a red light and collided with a Ford Escort station wagon, severely injuring 85-year-old Marjorie Dunn.
Mistakes made by the rookie driver, now 54, are expected to take center stage Monday in Portland's federal courthouse, where trial begins in a civil complaint originally brought by Dunn and now -- two years after cancer took her life -- her daughter, Andrea Lister. The lawsuit accuses Nieves Olivares and trucking giant C.R. England Inc. of gross negligence.
Lister's suit alleges that C.R. England, which bills itself as the nation's largest refrigerated trucking company, looked past Nieves Olivares' past and rushed him onto highways whose signs, in English, were hard for him to comprehend.
The lawsuit accuses the company of keeping the rookie driver on the road -- with no additional training and no drug or alcohol testing -- even after two accidents and multiple tickets. By federal law, drivers must be tested for drugs and alcohol after an injury accident.
"The most sinister part is not even really the driver," said plaintiffs attorney Thomas D'Amore of Portland. "It's the company that brings in these kinds of drivers and puts these folks on the road. ... You are putting them in a highly dangerous instrument on our freeways, exposing us all to them."
Lister's lawsuit seeks $430,000 in compensatory damages and unspecified punitive damages.
Court papers filed by C.R. England's lawyers say the company should not face punitive damages because one of its drivers ran a red light and caused an accident. The company is not liable for such damages, they wrote, because it did not act maliciously or with conscious indifference to anyone's health, safety or welfare. C.R. England's attorneys in Portland did not respond to requests for comment.
Jury selection begins Monday before U.S. District Judge Michael R. Hogan in Portland.
Two points of focus for plaintiff
Plaintiffs attorneys are expected to make much at trial about Nieves Olivares' shortcomings as a driver and the pressure C.R. England put on him to keep his freight moving. But his troubles began long before C.R. England hired him. In the early 1980s, he was convicted of assault. He later obliterated the serial number of a handgun and shot six people in what he described in a deposition as self-defense. Three of his victims died.
Convicted in Puerto Rico of homicidio, Nieves Olivares drew a 20-year prison sentence. He got out in 10, went to work as a temporary laborer and attended college. But he couldn't find permanent work.
Friends at church told him about C.R. England, which was advertising for drivers in Puerto Rico. Puerto Rico is a U.S. territory, and its residents are U.S. citizens. Nieves Olivares picked up the phone, hoping that his dream of one day building a house for his daughter might come true.
On Aug. 11, 2005, Nieves Olivares told his prospective employers about the killings and his earlier drug use. C.R. England found that the trainee met minimum hiring qualifications, according to a company document filed in the lawsuit.
Nieves Olivares made a home in a company dorm in Salt Lake City to attend driving school. In a deposition, Nieves Olivares recalled that his training lasted three weeks and that he had a hard time following the lessons because they were given in English.
On Oct. 11, 2005, he earned his commercial driver's license. But 27 days later -- after a slew of tickets and other mishaps -- Nieves Olivares was so fed up with the hassles of driving a big rig he was ready to quit and go home to Puerto Rico.
At a weigh station in Cottonwood, Calif., on Nov. 7, 2005, he sent angry text messages to dispatchers on his onboard computer. "IM (OUT OF) USA AS SOON AS POSSIBLE, I RESIGN," he wrote. "NO MAS."
A dispatcher asked where he was shut down and how much weight he was carrying so she could keep the load moving.
Fifteen hours later, after paying a ticket in Red Bluff, Calif., the rookie driver sent a note to his handlers: "IM UNDER SNOWY WEATHER AND CHAINS ARE REQUIRED AND I DONT KNOW HOW TO INSTALL THEM." A dispatcher encouraged him to find someone to assist him.
The next afternoon, Nov. 8, 2005, one of Nieves Olivares' handlers sent him an apologetic text: "I know we are pushing you and I am sorry but I have to get this trailer to winco asap."
At 4:03 p.m., Olivares ran a red light and missed a gear as he drove into an intersection in Woodburn. He did not see Marjorie Dunn behind the wheel of her Escort station wagon, which punched into the rear wheels of his truck and flipped into a light pole, according to a witness account in a police report.
Nieves Olivares found Dunn behind the wheel. There was blood on her deployed airbags. The woman, holding her bloody nose, looked at the driver with wide eyes and slumped to one side.
"Oh, lady," the truck driver recalled saying in a deposition, "please don't die on me."
Emergency workers pushed him away and whisked Dunn to an emergency room in Salem.
At the end of that month, as Nieves Olivares faced termination, he sent a text message to the company that he wanted his money back for the truck driving school. And he typed a few lines about the day of his Woodburn wreck, saying two of his handlers were "rushing me to get a load of bananas ... and made me have an accident."
C.R. England rates OK
C.R. England's drivers were involved in 13 fatal crashes in the past two years, according to the Federal Motor Carrier Safety Administration. Government regulators give the company a satisfactory safety rating, owing to the huge volume of miles driven each year by its 5,200 drivers.
Jurors will hear much about Marjorie Dunn, by all accounts an outgoing octogenarian who took pride in her independence and ability to drive. They will hear how she lived in pain the last 19 months of her life, the result of a fractured cervical spine and lingering soreness.
In court papers, family members describe her as a vibrant woman left so depressed after the crash that she lost the will to live. Dunn survived the accident but succumbed to cancer diagnosed in the final days of her life. She died June 22, 2007.
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