Pizza Hut told to pay $11 million for epileptic driver’s crash

by Walter Olson on September 30, 2010

Lawyers “argued that Pizza Hut was responsible for the collision because they hired [deliverer Nicole] Fisk, who had a driver’s license for only three months and had a history of suffering blackout spells and staring episodes.” Pizza Hut countered (unsuccessfully) that Fisk’s epilepsy was diagnosed only after the crash, which seriously injured a mother and daughter in another vehicle. [San Diego Union-Tribune via Lipman, Legal Blog Watch] And yes, it does call to mind the case I wrote about more than a decade ago:

You may think I’m making this up unless I offer a verbatim quote, so here’s exactly what the Washington Post reported in a front-page story on April 8 [1997]: “In January, a former truck driver for Ryder Systems, Inc., won a $ 5.5-million jury verdict after claiming, under the ADA [Americans with Disabilities Act], that Ryder unfairly removed him from his position after he suffered an epileptic seizure, saying his health condition could be a safety hazard. During the time he was blocked from his job at Ryder, the driver was hired by another firm, had a seizure behind the wheel and crashed into a tree. Ryder is appealing the verdict.”

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Random Nuclear Strikes » Damned if you do
09.30.10 at 1:34 pm

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1 J.T. Wenting 09.30.10 at 11:17 am

Brilliant. If they’d found out about his condition and fired or reassigned him he’d have sued under the ADA.
If they didn’t and he caused an accident (apparently even before they found out) the victims can sue for damages under whatever.

Only possible solution for companies: don’t hire any staff, in fact don’t even start a company.

2 Shtetl G 09.30.10 at 11:41 am

What happened with the appeal?

3 Ben Catoe 09.30.10 at 11:55 am

Didn’t a similiar thing happen with Exxon? I seem to recall that after the Valdez incident, they removed another captain that had a drinking problem and he successully sued them.

4 Ben Catoe 09.30.10 at 12:02 pm

oops, hit ‘submit’ too soon…

at what point can a company sue the government (or whoever) for putting them in a no-win situation.

I’ve always wondered if a person successfully sues for injures to himself while committing burglary, if I could then sue him back for monetary damages that his act caused me?

5 kat 09.30.10 at 12:03 pm

The report is a little misleading. Pizza Hut was not found negligent in hiring her or keeping her on the payroll. Rather, the jury determined that Fisk was negligent as she was, or should have been, aware that her medical condition posed a risk. (Presumably there was some evidence of prior seizure type symptoms.) Pizza Hut was held liable as Fisk was in the course and scope of her employment at the time of the accident. The jury did not accept Pizza Hut’s argument that Fisk was not negligent. It did accept Pizza Hut’s argument that Pizza Hut was not negligent.

6 steve mansfield 09.30.10 at 2:12 pm

The problem for Pizza Hut is that, under the doctrine of respondeat superior, it is, essentially, strictly liable for injuies caused by its employees while acting within the scope of their employment other than injuries resulting from the criminal acts of its employees. In this case, it appears the epileptic employee was properly performing his job ay the time of his accident; therefore Pizza Hut is liable. What I do question is what appears to be an outrageously excessive verdict assuming the injuries were not severe and/or permanent, such as a loss of a limb or paralysis.

7 Cloudesley Shovell 09.30.10 at 4:29 pm

The total damages seem reasonable given that the daughter “suffered a catastrophic and permanent brain injury” and requires 24 hour care.

One wonders why Pizza Hut does not hire its delivery drivers as independent contractors.

8 mike 09.30.10 at 6:25 pm

Companies will get slapped hard if they try to classify employees as independant contractors when the guidelines say they should be employees.

It might be possible to (avoid this type of liability) by subcontracting out the whole delivery process to a third party company. (?) I dont think Pizza Hut would be liable if a UPS driver got into an accident.

On another note, I defend injury cases, and just because some plaintiff’s expert says the injured party needs 24/7 care doesn’t mean its true. But the jury apparently thought so.

9 Bob Neal 10.01.10 at 7:09 am

Welcome to the world of being an employer in the US. If you don’t allow someone with a disability to drive, or operate a forklift, or (insert potentially dangerous job here), the EEOC/Plaintiffs’ bar sues you. If you do hire, and they hurt themselves or someone else, you get sued by the injured party (represented by your friendly Plaintiff’s attorney).

10 bkrul 10.01.10 at 2:25 pm

With some forms of seizure disorders, the patient may not be fully aware they happened as they may be brief, lasting just seconds, and do not involve falling or other obvious signs. Someone did notice though as a known history is mentioned. I’m assuming at some point parents or teachers must have noticed this although so many times staring, etc., is blamed on daydreaming. At any rate, it appears that others in her life who should have encouraged her to pursue a medical explanation did not. These seizures probably did not abruptly start when she reached adult age at 18; they must have been happening before that time, and if that is the case, there is some negligence on the part of the parents. Now, if she did seek medical help, part of the blame should go to that group as some doctors are not adequately trained to recognize symptoms for what they really are. If a patient does find the correct type of physician, it may be extremely difficult to confirm seizures on monitoring/recording devices particularly if seizures are intermittent. Lastly, her state should not have issued a driver’s license to her with her known history of uncontrolled blackouts and staring episodes. Most states, if not all, require control of any medical condition that could cause these types of symptoms prior to issuing a driver’s license.

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