Dust lawsuit settled out of court
NORTH PLATTE, Neb. — A tentative Nebraska wrongful death settlement has been reached in a Nebraska wrongful death lawsuit contending that thick dust blowing off a Nebraska ranch contributed to a three-fatality accident on Interstate 80 in 2005.
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A fatal 2005 "brownout" on I-80 near North Platte, Neb., has prompted a lawsuit from survivors of two of the victims.
A jury trial had been scheduled to begin Tuesday in the lawsuit brought by family members of two women killed in the eight-vehicle chain-reaction pileup. The trial was called off.
Lawyers for the families of Jeanne Kerechanin, 54, and Pamela Hartman, 46, had alleged that poor soil-erosion control practices of the U-Cross Ranch, which is adjacent to I-80, caused the thick dust cloud that sparked the fiery accident.
Drivers of three semitrailer trucks, and the companies that employed them, also were named as defendants.
One of the trucking companies, Handei Mack, agreed to pay $237,500 to settle the suit.
Other settlement terms were not made public Tuesday.
Legal observers said the case could have affected a large number of Nebraska ranches and farms because dust is naturally generated by such operations.
But Anthony Schutz, an agriculture law professor at the University of Nebraska-Lincoln, said the out-of-court settlement was good news for ranchers because it won't establish or change any precedents in that area of law.
Currently, Schutz said, a plaintiff would have to show that a farmer or rancher did something unreasonable or abnormal to make the dust cloud worse and cause a risk to nearby motorists.
The U-Cross Ranch had disputed any liability in the crash that occurred about 2:30 p.m. on March 10, 2005.
The ranch said the dust storm was clearly visible to motorists, had been the subject of weather advisories all day, and that drivers should have been able to take steps to avoid the hazard.
U-Cross attorney Dan Chesire of Omaha also said in a court brief that the ranch used sound erosion prevention methods and turned on center-pivot irrigation systems in an effort to control the dust that was whipped by 50 mph winds.
Chesire said Tuesday that he could not comment on the terms of the settlement but acknowledged that the ranch was among those involved in the agreement.
The families of the two women, represented by North Platte attorneys Martin Troshynski and Bob Lindemeier, had argued that the ranch didn't do enough to control soil erosion and should have notified local law enforcement about the dangerous dust cloud.
The truckers, the lawsuit argued, were driving too fast or following too closely for the conditions.
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Sand Nebraska Weongful Death lawsuit just dust in the wind
The families of two women killed in an eight-car pileup on Interstate 80 settled their Nebraska wrongful death lawsuit against a Lincoln County ranch and three trucking companies they believed were responsible for the wreck Monday.
The 2005 wreck occurred after blowing dirt from the U-Cross Ranch caused poor visibility and dangerous conditions, according a lawsuit filed by the families of Jeanne Kay Kerechanin, 52, and Pamela J. Hartman, 46, both of Manitou Springs, Colo.
John Latham, 70, of Springfield, also died in the wreck.
The lawsuit said the ranch was negligent when it failed to prevent dust from blowing off its land and across the highway. The lawsuit also blamed the trucking companies – Handei Mack Inc., from Iowa; ZML Transportation from Ill.; and H and R Transport from Canada – for their drivers driving at unreasonable speeds and unsafely.
The families first settled with Handei Mack and Craig Allen Lanning for $237,500 on July 3.
Liability problems considered by Supervisors
Dave Shanahan, Cherokee County Engineer, showed the Cherokee County Board of Supervisors a form that was developed to reduce county liability for accidents that occur during the Registers Annual Great Bike Ride Across Iowa (RAGBRAI).
However, the form to be signed by registered RABRAI participants will not entirely eliminate the possibility of lawsuits against counties.
The attempt to reduce the liability exposure of county governments throughout Iowa resulted from a lawsuit against Crawford County after a bike rider had a fatal accident on a county road during the 2004 RAGBRAI.
The county subsequently settled the lawsuit filed by family members of Kirk Ullrich, 49, Davenport, for $350,000. Ullrich had gotten his tire caught in a crack on the road, resulting in the accident.
Ullrich was a registered participant of RAGBRAI and had signed a waiver dismissing any liability of RAGBRAI itself or RAGBRAI's sponsoring organization, the Des Moines Register. However, individual counties and cities were not exempted from lawsuits under the waiver, a situation that the newly developed form was intended to correct.
Shanahan pointed out that the majority of the riders during the RAGBRAI event are not registered and therefore do not sign any waivers.
There is also some question as to whether such a waiver can actually prohibit family members from filing a Iowa wrongful death lawsuit, although the family of Ullrich apparently respected the waiver and didn't name RAGBRAI or the Des Moines Register in the lawsuit.
Mark Jensen may get new trial in wife’s poisoning
A U.S. Supreme Court ruling Wednesday could improve the chances of a new trial for Mark Jensen, the former Pleasant Prairie man convicted this year of poisoning his wife in 1998.
One legal observer said a new trial is all but certain.
“I don’t see any possibility that (Jensen) will not get a new trial,” said Milwaukee attorney David Ziemer, news editor of the Wisconsin Law Journal.
At issue is whether a letter written by Julie Jensen implicating her husband in her death should have been used at Mark Jensen’s trial.
Several jurors said the letter, in which Julie Jensen told police to investigate Mark Jensen if something happened to her, was crucial in their decision to convict.
Before the trial, held in January and February, lawyers were watching the Dwayne Giles murder case in California, which had been appealed to the U.S. Supreme Court. They agreed that if the high court ruled in favor of Giles, Jensen’s chances for a new trial would improve.
Wednesday’s 6-3 high court ruling did go in Giles’ favor, as the justices reaffirmed defendants’ Sixth Amendment right to confront witnesses who testify against them.
Before Jensen’s six-week trial, the Wisconsin Supreme Court had adopted a new doctrine in the state, ruling that Jensen would forfeit his right to confrontation if it was likely that he was the reason Julie Jensen was not available to testify.
In turn, Jensen’s trial judge, Bruce Schroeder of Kenosha County Circuit Court, determined after a special hearing that Jensen was probably guilty. Schroeder allowed Julie Jensen’s letter, written about 10 days before her death, to be used in the trial.
Jensen’s lawyer, Craig Albee of Milwaukee, said he believes Wednesday’s U.S. Supreme Court ruling will result in Jensen’s conviction being overturned.
“It’s hard to imagine it doesn’t mean a new trial,” Albee said.
With the high court ruling, it seems clear that Julie Jensen’s letter should not have been used at the trial because Mark Jensen’s defense had no way of questioning her about it, Albee said.
Albee had argued that Mark Jensen did not poison Julie Jensen by having her drink antifreeze, but rather that she committed suicide.
Jensen’s prosecutor, Robert Jambois, had agreed with other attorneys that a ruling in Giles’ favor would likely improve Jensen’s chances for a new trial. But he said the details of Wednesday’s decision, which he called complicated, led him to believe there was “high likelihood” that an appeals court would conclude the letter was properly used and Jensen’s conviction would be upheld.
If Jensen’s conviction is thrown out, prosecutors will re-try Jensen, even without the letter, Jambois said.
No appeal has been filed for Jensen, 48, who was sentenced to life in prison without possibility of parole.
In the California case, a murder victim had told a police officer that Giles had threatened to kill her.
Two weeks later, in September 2002, Giles shot her dead, claiming self-defense.
Giles’ attorneys argued that the police officer’s statement should not have been allowed at Giles’ trial, which ended with Giles being sentenced to 50 years in prison.
The California Supreme Court rejected Giles’ appeals, ruling that “no person should benefit from his own wrongful acts.”
The decision was similar to the one articulated by the Wisconsin Supreme Court in the Jensen case.
From the June 26, 2008 editions of the Milwaukee Journal Sentinel
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