McGary family files negligence suit against Strickland, Union Pacific

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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