Motion to Amend in Kamal Anderson Plaintiff vs. Eric Gaiter, et al Defendant| Trellis.Law

On March 18, 2023 a Complaint,Petition was filed involving a dispute between Anderson, Kamal, and Gaiter, Eric, Liberty Tire Recycling, Llc, Rechtien International Trucks And Idealease Of South Florida, Rechtien Intl. Trucks And Idealease Of S Fl, for 3 in the District Court of Broward County.

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Filing# 182182238 E-Filed 09/19/2023 06:32:46 PM

IN THE CIRCUIT COURT OF THE 17t
M
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE 23-004296 (02)

KAMAL ANDERSON,
Plaintiff,
V.

ERIC GAITER, and
LIBERTY TIRE, RECYCLING, LLC,

Defendants.
I

I ED COMPLAINT AND DEMAND FOR JIJRY TRIAL
COMES NOW, the Plaintiff,KAMAL ANDERSON, by and through undersigned

counsel, and sues the Defendants, ERIC GAITER, and LIBERTY TIRE, RECYCLING,

LLC, and as grounds states:

1. On December 5, 2022, a heavy truck owned and operated by Defendant,

LIBERTY TIRE, RECYCLING, LLC, ("LIBERTY") and driven by Defendant, ERIC

GAITER ("GAITER"), crashed into Plaintiff, KAMAL ANDERSON ("ANDERSON")
who, at the time of the crash, was operating his BMW 640i westbound on West Atlantic
Boulevard, Pompano Beach, Broward County, Florida (referredto hereinafter as "subject

crash").

2. at the time of the subjectcrash, Defendant,
Critically, LIBERTY, employed

Defendant, GAITER, and permitted him to drive the HEAVY TRUCK.
3. Accordingly, Plaintiff brings this civil action for recovery of harms, losses,and

damages stemming from injuriessustained as a result of the acts and/or omissions of

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*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/19/2023 06:32:39 PM.****
Defendants named herein, with express reservation of rightto amend in accordance with

Florida law.

PARTIES, JURISDICTION AND VENUE

4. This action is brought pursuant to Section 768, Florida Statutes,et seq.

5. This is an action for damages that exceeds the sum of FIFTY THOUSAND
DOLLARS ($50,000.00),exclusive of costs, interest and attorneys'fees (The estimated value
of Plaintiffs claim is in excess of the minimum threshold required by
jurisdictional this

Court). Accordingly,Plaintiffhas entered "$50,001" in the civil cover sheet for the "estimated

amount of the claim" as required in the preamble to the civil cover sheet for jurisdictional

purposes only (theFlorida Supreme Court has ordered that the estimated "amount of claim
,,

be set forth in the civil cover sheet for data collection and clerical purposes only). The actual

value of Plaintiffs claim will be determined by a fair and justjury in accordance with Article

1, Section 21, Fla. Const.

6. At all times material hereto and at the time of the incident complained of,

Plaintiff, KAMAL ANDERSON (hereinafter"Plaintiff" or "ANDERSON"), was a resident

of Broward County, Florida and was suijuns.

7. At all times material hereto and at the time of the incident complained of,

Defendant, ERIC GAITER (hereinafter"GAITER"), was a resident of Saint Lucie County,

Florida and was suijuns.

8. At all times material hereto and at the time of the incident complained of,

Defendant, LIBERTY TIRE, RECYCLING, LLC (hereinafter"LIBERTY"), was and is a

Foreign Limited Liability
Company authorized to do business in the State of Florida and was

so doing business.

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9. The basis that forms this Complaint occurred in Broward County, Florida and

therefore,venue is proper.

GENERAL ALLEGATIONS
10. At all times material hereto and at the time of the incident complained of,

ANDERSON, owned, operated, controlled,and maintained a 2014
Plaintiff, BMW 640i,
VIN No. WBA6A0C50ED317059, bearing Florida Tag No. 01BQMH (hereinafter"BMW").

11. At all times material hereto and at the time of the incident complained of, and

to the best of Plaintiffs knowledge and belief,Defendant, GAITER, was employed by

Defendant, LIBERTY, and was in the course and scope and/or agency of his employment

with LIBERTY.

12. At all times material hereto and at the time of the incident complained of,

Defendant, LIBERTY, controlled,and maintained a 2019 International MV Truck, Vin No.
3HAEUMMN5KL124225, which was operated by Defendant, GAITER (hereinafter

HEAVY TRUCK").
??1

13. At all times material hereto and at the time of the incident complained of,

Defendant, GAITER, operated the subject truck, while in the course and scope of his

employment and/or agency with Defendant, LIBERTY, and with full permission and

consent of Defendant, LIBERTY.

14. At all times material hereto and at the time of the incident complained of,the

subject truck being operated by Defendant, GAITER, was and is a "dangerous

instrumentality" in accordance with the Florida Dangerous InstrumentalityDoctrine and,

therefore,the owner and operator of the subjecttruck,Defendant, LIBERTY, is vicariously

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responsiblefor any injuriescaused by the operation of the subjecttruck, by and through

Defendant, LIBERTY's agents, employees and/or representatives.

15. On December 5, 2022, Defendant, GAITER, operated the HEAVY TRUCK at
a high rate of speed travelingwestbound on Atlantic Boulevard, Pompano Beach, Broward

County, Florida, by and through the permission of his employer, Defendant, LIBERTY.

GAITER, attempting to change lanes,failed to maintain a proper lookout or maintain control

of the HEAVY TRUCK, collided into Plaintiffs BMW (hereinafter"subjectcrash").

16. As a result of the subjectcrash,Plaintiff suffered serious and permanent injuries

and damages as more fullydescribed below.

THE HEAVY TRUCK AND DEFENDANT, LIBERTY TIRE RECYCLING, LLC's,
EMPLOYMENT OF DEFENDANT, ERIC GAITER
17. At all times material hereto and at the time of the incident complained of,

Defendant, LIBERTY, was the registeredowner and operator of the HEAVY TRUCK.
18. At all times material hereto and at the time of the incident complained of,

Defendant, LIBERTY, employed Defendant, GAITER, as a driver of commercial motor

vehicles,including,but not limited to the HEAVY TRUCK.
19. At all times material hereto and at the time of the incident complained of,

Defendant, GAITER, was operating the HEAVY TRUCK within the scope of his

employment with Defendant, LIBERTY.

20. At all times material hereto and at the time of the incident complained of,

Defendant, GAITER, was in exclusive possession,custody, and/or control of the HEAVY
TRUCK.

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21. Defendant, GAITER, then took possessionofthe HEAVY TRUCK, operating
it under the direction,control,and supervisionof LIBERTY while using and relyingupon the

Operating Authority of LIBERTY.

THE OPERATION OF COMMERCIAL MOTOR VEHICLES

22. The operation of Commercial Motor Vehicles ("CMVs"), like the HEAVY

TRUCK, is a dangerous and highly regulated enterprise,requiringcarriers to comply with

strict federal and .1
state requirements.

23. Further,CMVs are far more dangerous than even the largestpassenger vehicle,

due to the sheer size,weight, and overall mass of CMVs.

24. As a result,the commercial transportationof goods constitutes a hazardous

activitypresenting substantial dangers to members of the motoring public when such

and carefullydone.
is not skillfully
transportation

25. Any company that wishes to operate a CMV must first obtain legal"Operating

Authority" from the Federal Motor Carrier SafetyAdministration ("FMCSA"), formerly2
the

Interstate Commerce Commission ( 'ICC").

26. To obtain Operating Authority,an applicantmust first complete and sign an

application "FORM OP-1."

27. Each FORM OP-1 applicationcontains a detailed "SafetyCertification" which

must be signed under oath by the applicant.

1
Like many states, Florida has adopted federal regulations directly into state law. See §316.302(1), Fla. Stat. (2018).

z
In 1996, the ICC was replaced by the FMCSA, which now operates under the auspices of the United States
Department of Transportation. See Pub. L.104-88, 109 Stat. 803; 1995-12-29.

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28. a
Specifically, FORM OP-1 applicantmust swear that the company "has access
to and is familiar with all applicableUSDOT regulationsrelatingto the safe operation of

commercial vehicles."

29. Further, the applicant must swear it "will comply with [all applicable]

regulations."This includes, inter alia,that the applicant will institute a mandatory driver

safety program:

30. Only once the FORM OP-1 is submitted and accepted by FMCSA, will the

applicantbe provided a unique "MC" number.

31. The MC number designates an applicant as a "Motor Carrier," permitted to

legallyoperate CMVs in limited circumstances. See e.g. 49 U.S.C. 13902, 49 C.F.R. part 368,

part 368, part 392.9(a).

32. To operate within the state of Florida, a Motor Carrier must also apply for and

obtain a USDOT or FLDOT number. See §316.70, FLA. STAT., et seq.

THE MOTOR CARRIER: LIBERTY
33. At the time of the subject crash, Defendant, LIBERTY, possessed Motor

Carrier Operating Authority (USDOT number: 1397309).

34. Accordingly,at the time of the SUBJECT CRASH, Defendant, LIBERTY, was

duty-bound to, inter alia:

a. Have in place a system and an individual responsible for ensuring

overall compliance with the FMCSRs;
b. Be able to produce a copy of the FMCSRs and other regulations;
C. Have in place a driver safety program;
d. Prepare and maintain an accident register;

e. Be familiar with regulationsgoverning driver qualifications
and institute

requirements;and
a system for overseeingdriver qualification

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f. Have in place policiesand procedures consistent with regulations

governing driving and operational safetyof motor vehicles,including
drivers' hours of service and vehicle inspection, repair, and

maintenance.

35. Yet, at the time of the SUBJECT CRASH and in contravention of its oath,

Defendant, LIBERTY, did:

a. fail to establish a system or individual responsible for ensuring overall

compliance with applicableregulations;
b. fail to establish a driver safety program;
C. fail to enact policesor procedures consistent with regulationsgoverning

driving and operational safetyof motor vehicles;

d. fail to enact policesor procedures consistent with regulationsgoverning

drivers' hours of service;

e. fail to enact polices or procedures consistent with regulationsgoverning

vehicle inspection,repair,or maintenance; and/or

36. by
Specifically, way of example and not limitation,Defendant, LIBERTY-,

permitted Defendant, GAITER, to operate the HEAVY TRUCK.
37. Accordingly, Defendant, LIBERTY, violated its oath to FMCSA and

corresponding obligationsowed to fellow motorists to ensure the safetyof the same.

STATUTORY EMPLOYMENT OF ERIC GAITER
38. At all times material hereto, Defendant, LIBERTY, was a business engaged in

the commercial transportation
of goods in commerce, in exchange for profit.

39. On the date of the subjectcrash, Defendant, LIBERTY, tasked Defendant,

GAITER, with driving the HEAVY TRUCK for the financial benefit of Defendant,

LIBERTY.

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40. In so doing, Defendant, LIBERTY, tasked Defendant, GAITER, with

travelingon public roads and highways near other motorists and pedestrians,thus affecting

commercial motor vehicle safety.

41. Together, Defendant, LIBERTY, and Defendant, GAITER, were engaged in

a business enterprise which affected commercial motor vehicle safety through the

transportationof goods.

42. Defendant,
Individually, LIBERTY, owned, operated,leased,directed,and/or

controlled the conduct of drivers as well as the operation of CMVs under their ownership

and/or control.

43. By definition,"Statutory Employers" permit an individual-regardless of

technical employment status or title-to directly
affect commercial vehicle safetythrough the

course of work performed. See 49 C.F.R. 390.5.

44. Accordingly, Statutory Employers possess a special,affirmative obligation to

comply with regulations,including mandatory document retention,recording and self-

reporting,and requirements governing the proper evaluation and qualification
of drivers.

45. StatutoryEmployers are considered employers of individual(s)-regardlessof

technical employment status or title-in derogation of the common law. 3

46. Thus, by operationof lawt Defendant, LIBERTY, was, at all times material to

this action, the StatutoryEmployer of Defendant, GAITER.

3
See 49 C.F. R. 390.5 (defining employer as "any person engaged in a business affecting interstate commerce who
owns or leases a commercial motor vehicle in connection with that business or assigns employees to operate it").

4
See 49 anyone "who in the course of his or her employment directly affects
C.F.R. 390.5 (defining employee as

commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an
independent contractor while in the course of operating a commercial motor vehicle)").

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47. The decision of Defendant, LIBERTY, to permit GAITER to operate a

commercial motor vehicle without proper evaluation, training,supervision,reprimand,

and/or termination, violated the obligationsDefendant, LIBERTY, owed to the motoring

publicas StatutoryEmployers.

COUNTI
NEGLIGENT ENTRUSTMENT OF LIBERTY TIRE RECYCLING, LLC
48. At all times material to this action, Defendant, LIBERTY, permitted

Defendant, GAITER, to operate the HEAVY TRUCK under Defendant, LIBERTY's, Motor

Carrier Operating Authority.

49. At all times material to this action,Defendant, LIBERTY, knew, or had reason

to know, that Defendant, GAITER, because of his poor driving record and inexperience

posed an unreasonable risk of physical harm to other
operating tractors/tractor trailers,

motorists.

50. Defendant, LIBERTY-, created a foreseeable zone of danger to other motorists

and to Plaintiff,including the danger that injuriesor death would occur in any collision

resultingfrom Defendant, GAITER's, failure to yieldto pedestrianspossessing the right-of-

way.

51. DUTY. Defendant, Defendant, LIBERTY, owed a non-delegable duty to the

motoring public and to Plaintiff in that Defendant, LIBERTY, would exercise reasonable

care, including but not limited to ensuring that only a qualifiedand reasonably safe driver

operated the HEAVY TRUCK and on publicroadways.

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52. BREACH. Defendant, LIBERTY, breached its non-delegable duty and was

and
to exercise reasonable care in ensuring that only a qualified
therefore negligentby failing

reasonably safe driver operated the HEAVY TRUCK on public roadways, and by providing
the HEAVY TRUCK to Defendant, GAITER, despiteknowing Defendant, GAITER, posed
an unreasonable hazard to other motorists.

53. CAUSATION. The negligenceof Defendant, LIBERTY, described above, did

suffered by Plaintiff in that LIBERTY's breach of
and proximately cause the injuries
directly

and in natural and continuous sequence, produce or contribute substantially
duty did directly,

to the harms, losses,and damages suffered by
injuries, Plaintiff.

54. DAMAGES. As a direct and proximate result of the foregoing negligence,

Plaintiff was injured in and about the body and suffered,inter alia: permanent injury,

disfigurement,scarring,pain and suffering,
disability, aggravation of preexistingconditions,

loss of past wages, loss of future earning capacity,mental anguish, loss of enjoyment of life,

and medical expenses All injuriesare
in the care of treatment of said injuries. permanent

within a reasonable degree of medical probabilityand will requirefuture medical treatment.

Plaintiff will continue to suffer damages in the future.

WHEREFORE, Plaintiff, KAMAL ANDERSON, demands judgment against

Defendant, LIBERTY, includingan award of all damages to which Plaintiffis legallyentitled,

along with all costs and attorney(s)fees as might be allowable by law. Further, Plaintiff

demands a
respectfully trial by jury on all issues so triable.

COUNT II
NEGLIGENT HIRING OF ERIC GAITER

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55. At all times material to this action, Defendant, LIBERTY, permitted

Defendant, GAITER, to operate the HEAVY TRUCK under Defendant, LIBERTY's, Motor

Carrier Operating Authority.

56. At all times material to this action,Defendant, LIBERTY, knew or should have

known about Defendant, GAITER's, poor driving record and inexperience operating

commercial trucks,through its limited investigationduring its hiring process.

57. At all times material to this action,Defendant, LIBERTY, failed to perform an

appropriatelythorough and complete investigationinto Defendant, GAITER's, poor driving

record and inexperience operating commercial trucks.

58. Defendant, LIBERTY, created a foreseeable zone of danger to other motorists

and including the
to Plaintiff, danger that injuriesor death would occur in any collision

resultingfrom Defendant, GAITER's, failure to yieldto pedestrianspossessing the right-of-

way.

59. DUTY. Defendant, Defendant, LIBERTY, owed a non-delegable duty to the

motoring public and to Plaintiff in that Defendant, LIBERTY, would make an appropriate

into
investigation its potentialdriver hires and would hire only qualifieddrivers,capable of

operating a CMV in a reasonably safe and non-negligent manner and fit to perform the tasks
assigned,includingduring interactions with motorists.

60. BREACH. Defendant, LIBERTY, breached its non-delegable duty and was

therefore negligent by failingto perform an appropriate investigationinto Defendant,

GAITER, before hiring him, for failingto determine the unsuitabilityof Defendant,

GAITER, as a driver of the HEAVY TRUCK, and for otherwise failingexercise reasonable

care in hiring only qualifieddrivers,capable of operating a CMV in a reasonably safe and

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non-negligentmanner and fitto perform the tasks assigned,includingduring interactions with

motorists.

61. CAUSATION. The negligence of Defendant, LIBERTY, described above, did

directlyand proximately cause the injuriessuffered by Plaintiff in that LIBERTY'S breach of

and in natural and continuous sequence, produce or contribute substantially
duty did directly,

to the harms, losses,and damages suffered by
injuries, Plaintiff.

62. DAMAGES. As a direct and proximate result of the foregoing negligence,

Plaintiff was injured in and about the body and suffered, inter alia: permanent injury,

disfigurement,scarring,pain and suffering,
disability, aggravation of preexistingconditions,

loss of past wages, loss of future earning capacity,mental anguish,loss of enjoyment of life,

and medical expenses All injuriesare
in the care of treatment of said injuries. permanent

within a reasonable degree of medical probabilityand will require future medical treatment.

Plaintiff will continue to suffer damages in the future.

WHEREFORE, Plaintiff, KAMAL ANDERSON, demands judgment against

Defendant, LIBERTY TIRE, RECYCLING, LLC, including an award of all damages to

which Plaintiff is legallyentitled,along with all costs and attorney(s)fees as might be

demands a trial by jury on all issues so triable.
allowable by law. Further,Plaintiffrespectfully

CouNT m
NEGLIGENT RETENTION OF ERIC GAITER
63. At all times material to this action, Defendant, LIBERTY, permitted

Defendant, GAITER, to operate the HEAVY TRUCK under Defendant, LIBERTY's, Motor

Carrier Operating Authority.

64. Defendant, LIBERTY-, created a foreseeable zone of danger to other motorists

and to Plaintiff,including the danger that injuriesor death would occur in any collision

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from Defendant, GAITER's,
resulting failure to yieldthe rightofway and failure to maintain

a proper lookout.

65. DUTY. Defendant, Defendant, LIBERTY, owed a non-delegable duty to the

motoring public and to Plaintiff in that Defendant, LIBERTY, would employ and retain only

qualifieddrivers,capable of operatinga CMV in a reasonably safe and non-negligentmanner,
and to suspend, and/or discharge drivers
retrain,re-assign,
investigate, who exhibited unsafe

violated
driving characteristics, traffic laws, and/or otherwise failed to comply with motor

carrier safetyregulations.

66. BREACH. Defendant, LIBERTY, breached its non-delegable duty and was

therefore negligentby failingto exercise reasonable care in employing and retainingonly

qualifieddrivers,capable of operatinga CMV in a reasonably safe and non-negligentmanner,
and failingto exercise reasonable care in investigating,
retraining,re-assigning,suspending,

and/or dischargingdrivers who exhibited unsafe drivingcharacteristics,
violated traffic laws,

and/or otherwise violated motor carrier safetyregulations.

67. CAUSATION. The negligenceof Defendant, LIBERTY-, described above, did

suffered by Plaintiff in that LIBERTY's breach of
and proximately cause the injuries
directly

and in natural and continuous sequence, produce or contribute substantially
duty did directly,

to the harms, losses,and damages suffered by
injuries, Plaintiff.

68. DAMAGES. As a direct and proximate result of the foregoing negligence,

Plaintiff was injured in and about the body and suffered,inter alia: permanent injury,

disfigurement,scarring,pain and suffering,aggravation of preexistingconditions,
disability,

loss of past wages, loss of future earning capacity,mental anguish, loss of enjoyment of life,

and medical expenses All injuriesare
in the care of treatment of said injuries. permanent

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within a reasonable degree of medical probabilityand will requirefuture medical treatment.

Plaintiff will continue to suffer damages in the future.

WHEREFORE, Plaintiff, KAMAL ANDERSON, demands judgment against

Defendant, LIBERTY TIRE, RECYCLING, LLC, including an award of all damages to

which Plaintiff is legallyentitled,along with all costs and attorney(s)fees as might be

demands a
allowable by law. Further, Plaintiffrespectfully trial by jury on all issues so triable.

COUNT IV
NEGLIGENCE OF LIBERTY TIRE RECYCLING, LLC
(Training and Supervision)

69. At all times material to this action, Defendant, LIBERTY, permitted

Defendant, GAITER, to operate the HEAVY TRUCK under Defendant, LIBERTY's, Motor

Carrier Operating Authority.

70. At all times material to this action,Defendant, LIBERTY, knew or should have

known of Defendant's poor drivingrecord and inexperienceoperating HEAVY TRUCKs.

71. Defendant, LIBERTY, created a foreseeable zone of danger to pedestriansand

to Plaintiff, or death would occur in any collision resulting
includingthe danger that injuries

from Defendant, GAITER's, failure to yieldthe rightofway and failure to maintain a proper

lookout.

72. DUTY. Defendant, Defendant, LIBERTY, owed a non-delegable duty to the

motoring public and to Plaintiff in that Defendant, LIBERTY, would train and superviseits

drivers, including in motor carrier safety regulations,traffic laws, and proper CMV
operationalprocedures.

73. BREACH. Defendant, LIBERTY, breached its non-delegable duty and was

therefore negligentby failingto exercise reasonable care in trainingand supervisingits drivers,

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including in motor carrier safetyregulations,
traffic laws, and/or proper CMV operational

procedures.

74. CAUSATION. The negligence of Defendant, LIBERTY, described above, did

directlyand proximately cause the injuriessuffered by Plaintiff in that LIBERTY's breach of

and in natural and continuous sequence, produce or contribute substantially
duty did directly,

to the harms, losses,and damages suffered by
injuries, Plaintiff.

75. DAMAGES. As a direct and proximate result of the foregoing negligence,

Plaintiff was injured in and about the body and suffered, inter alia: permanent injury,

disfigurement,scarring,pain and suffering,
disability, aggravation of preexistingconditions,

loss of past wages, loss of future earning capacity,mental anguish,loss of enjoyment of life,

and medical expenses All injuriesare
in the care of treatment of said injuries. permanent

within a reasonable degree of medical probabilityand will require future medical treatment.

Plaintiff will continue to suffer damages in the future.

WHEREFORE, Plaintiff,KAMAL ANDERSON, demands judgment against

Defendant, LIBERTY TIRE, RECYCLING, LLC, including an award of all damages to

which Plaintiff is legallyentitled,along with all costs and attorney(s)fees as might be

demands a trial by jury on all issues so triable.
allowable by law. Further,Plaintiffrespectfully

COUNT V
NEGLIGENCE OF ERIC GAITER
76. In his role as driver,Defendant, GAITER, created a foreseeable zone of danger

to other motorists and to Plaintiff-including the danger that injuriesor death would occur

in any collision resultingfrom failingto maintain a safe following distance,failingto honor

to maintain a proper lookout, failing
the rightof way, failing to stop in time to avoid a crash,

and failingto use extreme caution while operating a CMV on a highway-as evidenced by,
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inter alia: GAITER's decision to operate the HEAVY TRUCK at speeds and distances

sufficient to crash into pedestrianswith the rightof way. See e.g. Birge v. Charron, 107 So.

3d 350, 353 (Fla.2012).

77. STATUTORY EMPLOYMENT. By operation of law, Defendant, GAITER,

was a StatutoryEmployee5 of Defendant, LIBERTY, on the date of the SUBJECT CRASH.

78. DUTY. Defendant, GAITER, owed a non-delegable duty to exercise

reasonable care to other motorists and to Plaintiff,
includingbut not limited to:

a. Inspectingthe condition of the HEAVY TRUCK;
b. Maintaining the condition of the HEAVY TRUCK;
C. Operating the HEAVY TRUCK in a reasonably safe and non- negligent
manner on public roadways;

d. Maintaining a safe and controllable operating speed while operating the

HEAVY TRUCK;
e. Yielding to pedestrianspossessingthe right-of-waywhile operatingthe

HEAVY TRUCK;
f. Executing driving maneuvers safely and with due caution for

and/or
pedestrians;

g. Keeping a proper lookout while operating the HEAVY TRUCK.
79. BREACH. Defendant, GAITER, breached his non-delegable duty owed to the

motoring public and to Plaintiff and was therefore negligent in one or more of the following

ways:

5
See Supra note 4.

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a. Failingto inspectthe condition of the HEAVY TRUCK;
b. Failingto maintain the condition of the HEAVY TRUCK;
C. Failing to operate the HEAVY TRUCK in a reasonably safe and non-

negligentmanner on publicroadways;

d. Failing to maintain a safe and controllable operating speed while

operating the HEAVY TRUCK;
e. Failing to yield to pedestrians possessing the right-of-way while

operating the HEAVY TRUCK;
f. Failing to execute driving maneuvers safelyand with due caution for

other motorists;and

g. Failingto keep a proper lookout while operatingthe HEAVY TRUCK.
80. CAUSATION. The negligenceof Defendant, GAITER, described above, did

directlyand proximately cause the injuriessuffered by Plaintiff in that GAITER's breach of

and in natural and continuous sequence, produce or contribute substantially
duty did directly,

to the harms, losses,and damages suffered by
injuries, Plaintiff.

81. DAMAGES. As a direct and proximate result of the foregoing negligence,

Plaintiff was injured in and about the body and suffered,inter alia: permanent injury,

disfigurement,scarring,pain and suffering,
disability, aggravation of preexistingconditions,

loss of past wages, loss of future earning capacity,mental anguish, loss of enjoyment of life,

and medical expenses All injuriesare
in the care of treatment of said injuries. permanent

within a reasonable degree of medical probabilityand will requirefuture medical treatment.

Plaintiff will continue to suffer damages in the future.

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WHEREFORE, Plaintiff, KAMAL ANDERSON, demands judgment against

Defendant, ERIC GAITER, including an award of all damages to which Plaintiff is legally

entitled,along with all costs and attorney(s)fees as might be allowable by law. Further,

Plaintiff demands a
respectfully trial by jury on all issues so triable.

COUNT VI
VICARIOUS LIABILITY OF LIBERTY TIRE RECYCLING, LLC
(RespondeatSuperior)

82. At all times material to this action,Defendant, LIBERTY, permitted GAITER

to operate the HEAVY TRUCK under Defendant, LIBERTY's, Federal Motor Carrier

Operating Authority.

83. AGENCY. On the date of the SUBJECT CRASH, Defendant, LIBERTY,

utilized the services of GAITER, to act for and on behalf of Defendant, LIBERTY, while

Defendant, LIBERTY, exercised control and/or rightof control over GAITER, during which

time GAITER acted negligentlywithin the scope of that agency.

84. APPARENT AGENCY. On the date of the SUBJECT CRASH, Defendant,

LIBERTY, by its words or conduct, caused or allowed others to believe that GAITER was

an agent of Defendant, LIBERTY, during which time GAITER acted negligentlywithin the

scope of GAITER's apparent agency.

85. STATUTORY EMPLOYMENT. By operation of law, Defendant,

LIBERTY, was a StatutoryEmployer6of GAITER on the date ofthe subjectcrash. 49 C.F.R.

390.5.

6
See supra notes 3,4.

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86. As the ostensible Motor Carrier, Defendant, LIBERTY, is liable for the

negligentacts and omissions of GAITER as StatutoryEmployer of GAITER.

87. CAUSATION. The negligence of Defendants, described herein, did directly

and proximately cause the injuriessuffered by Plaintiff in that Defendants' breaches of duty

and in natural and continuous sequence, produce or contribute substantially
did directly, to

harms, losses,and
the injuries, damages suffered by Plaintiff.

88. DAMAGES. As a direct and proximate result of the foregoing negligence,

Plaintiff was injured in and about the body and suffered, inter alia: permanent injury,

disfigurement,scarring,pain and suffering,
disability, aggravation of preexistingconditions,

loss of past wages, loss of future earning capacity,mental anguish,loss of enjoyment of life,

and medical expenses All injuriesare
in the care of treatment of said injuries. permanent

within a reasonable degree of medical probabilityand will require future medical treatment.

Plaintiff will continue to suffer damages in the future.

WHEREFORE, Plaintiff, KAMAL ANDERSON, demands judgment against

Defendant, LIBERTY TIRE, RECYCLING, LLC, including an award of all damages to

which Plaintiff is legallyentitled,along with all costs and attorney(s)fees as might be

demands a trial by jury on all issues so triable.
allowable by law. Further,Plaintiffrespectfully

COUNT VII
VICARIOUS LIABILITY OF LIBERTY TIRE RECYCLING
Wangems Instrumentality)

89. OWNERSHIP. At the time of the SUBJECT CRASH, Defendant, LIBERTY,

was the registeredowner of the HEAVY TRUCK.
90. at
Alternately, all times material to this action, Defendant, LIBERTY-, was the

owner, renter, bailor,or leaseholder of the HEAVY TRUCK.

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91. Accordingly, at all times material to this action,Defendant, LIBERTY, had an

identifiable property interest in the HEAVY TRUCK.
92. The HEAVY TRUCK is an instrumentality
which has the capability
of causing

death or destruction as defined under Florida law.

93. PERMISSIBLE USE. Defendant, LIBERTY, permitted GAITER to operate

the HEAVY TRUCK.
94. LIABILITY. In permittingGAITER to use and operate the HEAVY TRUCK,

Defendant, LIBERTY, is liable for the acts and omissions of GAITER while operating
strictly

the HEAVY TRUCK.
95. CAUSATION. The negligence of Defendants, described herein, did directly

and proximately cause the injuriessuffered by Plaintiff in that Defendants' breaches of duty

and in natural and continuous sequence, produce or contribute substantially
did directly, to

harms, losses,and
the injuries, damages suffered by Plaintiff.

96. DAMAGES. As a direct and proximate result of the foregoing negligence,

Plaintiff was injured in and about the body and suffered, inter alia: permanent injury,

disfigurement,scarring,pain and suffering,
disability, aggravation of preexistingconditions,

loss of past wages, loss of future earning capacity,mental anguish, loss of enjoyment of life,

and medical expenses All injuriesare
in the care of treatment of said injuries. permanent

within a reasonable degree of medical probabilityand will require future medical treatment.

Plaintiff will continue to suffer damages in the future.

WHEREFORE, Plaintiff, KAMAL ANDERSON, demands judgment against

Defendant, LIBERTY TIRE, RECYCLING, LLC, including an award of all damages to

201Page
which Plaintiff is legallyentitled,along with all costs and attorney(s)fees as might be

demands a
allowable by law. Further, Plaintiffrespectfully trial by jury on all issues so triable.

DEMAND FOR JIJRY TRIAL
Plaintiff further demands trial by jury.

)th
Dated this 191 day of September, 2023.

LONG, JEAN & WECHSLER, P.A.
Attorneys for Plaintiff
1937 E. Atlantic Blvd., Suite 205
Pompano Beach, FL 33060
Phone: (954) 597-6770
pleadings@ljwlegal.com (serviceemail)

BY: /s/ Lyle R. Long
Lyle R. Long, Esq.
Florida Bar No. 101740
lyle@ljwlegal.com

21IPage

Case Info

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Bowman, John B. Track Judge’s New Case

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Document Filed Date

September 19, 2023

Case Filing Date

March 18, 2023

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Complaint,Petition: Kamal Anderson Plaintiff vs. Eric Gaiter, et al Defendant

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