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McGary family files negligence suit against Strickland, Union Pacific

Posted: January 22, 2014 - 9:56am

The estate of fallen Conway officer Will McGary alleges the Conway man charged in the officer’s death, along with his employer, acted with negligence, which directly resulted in McGary’s death.

The claims are made in a lawsuit filed in Faulkner County Circuit Court on Dec. 27 against Barry Strickland, 32, and the Union Pacific Railroad Company. The McGary estate, administered by McGary’s mother, Tanya McGary, seeks a jury trial and punitive damages.

Three “John Does,” described as employees of Union Pacific, are also named as defendants in the suit, however, the McGary estate, represented by Gregory Kitterman, of Kitterman Law Firm in Little Rock, said it has been unable to identify the employees despite “every diligent effort,” an affidavit states.

McGary died Feb. 1, 2013, from injuries sustained when he was hit by a vehicle while directing traffic Jan. 31, 2013, at an accident on Dave Ward Drive. Conway police said the vehicle that struck McGary was operated by Strickland, who now faces charges of first-degree battery and driving while intoxicated in a separate criminal case.

The suit claims when Strickland was sent home from work Jan. 31 for concerns of drowsiness, Union Pacific had “reasonable alternatives available including, but not limited to, calling a cab, arranging for a friend or family member of Strickland’s to pick him up, have a co-employee take him home, utilizing [Union Pacific’s] own in-house personnel transportation service or having Strickland examined at the nursing station on site.”

The suit also claims Union Pacific and Strickland “knew, or should have known,” that Strickland was “unfit to drive home from work,” and argues Union Pacific “had a duty to prevent Strickland from driving away in his vehicle.”

Because of the alleged negligence by Union Pacific and Strickland, the McGary estate asserts it is entitled to punitive damages in an amount “adequate to punish each for willful and wanton acts committed in the past and to deter them and others similarly situated from committing such acts in the future.”

The suit was moved from the Fifth Division to the Second Division due to a conflict with the plaintiff’s family, according to a Jan. 15 court order.

In the separate criminal case, Strickland is due for a hearing before Circuit Judge Ed Clawson at 9 a.m. Feb. 18.

Strickland’s defense has filed several motions, including one requesting a change of venue for trial. Ongoing, saturated media coverage of McGary’s death would make it impossible for an unprejudiced jury to be formed in Faulkner County, according to the motion filed by Strickland’s attorney, Frank Shaw.

The defense has also filed motions to preserve McGary’s clothing and to inspect, examine and test physical evidence, along with motions requesting additional discovery items and a bill of particulars.

If convicted of first-degree battery, a class Y felony, Strickland would face 10 to 40 years or life in prison. Although he has been charged with driving while intoxicated, a toxicology report showed Strickland had no alcohol or non-prescribed drugs in his system at the time of the accident.

Strickland, a two-time Iraq war veteran, did have various prescribed drugs in his system, which Shaw said were legally prescribed to treat his client’s post-traumatic stress disorder.

(Staff writer Lee Hogan can be reached by email at lee.hogan@thecabin.net or by phone at 505-1246. Follow Lee Hogan on Twitter at twitter.com/LCD_LeeHogan.)

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BatmanandRobin
262
Points
BatmanandRobin 01/22/14 - 10:15 am
0
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Wasn't it reported by the

Wasn't it reported by the news media that Strickland texted to friends he was "high" right before he hit the officer?

commonsenseapproach
122
Points
commonsenseapproach 01/22/14 - 02:44 pm
1
1
Commonsenseapproach

UP should be out of the question once they said "go home". At that point, he isn't UP's liability I wouldn't think.

InsGuru
5830
Points
InsGuru 01/22/14 - 03:12 pm
3
0
Hmm

Makes me think of host liquor laws. If at a private party and someone leaves intoxicated and kills someone, the host of that party cannot be held liable (this does varry from state to state, and some states have said that a host of a party can be held liable, though AR has not), however if someone leaves a business intoxicated and kills someone, that business can be held liable, since they have a due dilegence to stop serving someone.

Though, as a LEO, you know the nature of your work when you sign up. That'd be like people suing the military for sending their son who died in combat to a dangerous area.

Negligence invovles a due dilegence, breach of that, and damages resulting from that, which, IMO, is present here. Typically, punitive damages are requested and assigned by a Judge, the fact that they are being asked for up front here by a plaintiff, inclines me to believe that, as sad as it is, it's just about money, but not trying to deter it from happening again (which is the point of punitive damages). Filing suit for more than lost wages, in my book, makes something about money sadly.

c'mon man
1371
Points
c'mon man 01/23/14 - 08:26 am
2
1
Why don't they sue

the person who caused the accident too? If that person hadn't caused the accident, the officer wouldn't have been standing in the road directing traffic. That person is obviously at fault too.

odoketa
394
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odoketa 01/23/14 - 09:58 am
0
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tough question

If someone drove to work drunk or high, I doubt it would be negligence because the company had no chance to identify a problem. If the company sent him home, though, they had identified a problem, and employees of the company may have made the wrong call about how to handle it. I certainly think there's a question, and I suspect 'negligence' may be the right word for what happened - not intentional, simply failing to think things through, but resulting in a tragic accident. And when someone fails to think things through and there is an accident, we generally hold them accountable.

David Smithers
39
Points
David Smithers 01/23/14 - 03:35 pm
0
0
Keep in Mind

The defense would argue that Mr. Strickland was not intoxicated at the time of the accident.

mikeng1994
0
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mikeng1994 01/23/14 - 04:15 pm
1
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One thing to remember

I think once UP told him to go home they are removed from responsibility. they identified a problem and took action. Since they just said go home, it was up to Strickland to find they way he got there. UP did not tell him to "drive home".

When Strickland took the drug, it was not the first time he had done so i am willing to bet. he was diagnosed years ago, so he does how they affected him. I saw the same things he saw, I probably have many of the same prescriptions, but since I know how they affect me, I know my limitations. Hearsay for those who know him commented on how he would brag about partying and getting drunk on his facebook. I think he was abusing his prescriptions and now he must pay.

Raving Bear
632
Points
Raving Bear 01/23/14 - 04:46 pm
0
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OK I am not a lawyer, but a

OK I am not a lawyer, but a clear reading of the battery law raises some questions.

How many hours had he worked before UP sent him home and what kind of work was he doing. If they knowingly pushed him to exhaustion they may well be liable. It may also mean Strickland is less liable due to the way the battery law is written.

§ 5-13-201. Battery in the first degree

For the state to win they have to prove that either,

(3) He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life; or

(4) Acting alone or with one (1) or more other persons, he commits or attempts to commit a felony, and in the course of and in furtherance of the felony, or in immediate flight therefrom:

(A) He or an accomplice causes serious physical injury to any person under circumstances manifesting extreme indifference to the value of human life; or

If he wasn't drunk/ drugged but tired, there goes the DWI charge and any chance of a felony which removes criteria (4). Currently I do not think Arkansas has a tired/fatigued driving law. Jason Rappert introduced such a law but I don't know if it passed. Even if it did, its only a misdemeanor. If there is no original felony crime there goes (A). That leaves (3)

If UP worked him into a state of stupor where they knew his judgment was impaired because of actions he undertook on their behalf it implies that his ability to make rational and reasonable judgments is also impaired. Where unlike alcohol he may not be culpable. Someone made the call that he was unfit for work, but fit to drive...

This whole situation is a no win situation for the McGary and Strickland families. Cop v War Hero.... The only real place for justice is if UP is guilty that they get punished. Their alleged malfeasance killed Officer Mcgary, but it could have been any of us that got run over by that proverbial train.

InsGuru
5830
Points
InsGuru 01/24/14 - 09:06 am
1
0
Civil...

This is a civil case, so how does any of the battery stuff you posted apply? (That' rhetorical btw). Guilty? There is no guilty in a civil case.... that'd be crimal... It's a matter of negligence, not guilt or innocence...

sheniqua
251
Points
sheniqua 01/24/14 - 11:33 am
0
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Zzzzzzzzzzz

UP should have known if he's too sleepy to work, he's too sleepy to drive home

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