The truck driver’s injuries required back surgery.

by Marvin Hurst with Joe Conger / KENS 5

SAN ANTONIO – Kenneth Varner’s family has a desperate wish this Christmas. They want him to survive an early morning injury he had from a VIA Star Shuttle while he was in his wheelchair.

The 36-year old father and husband has been wheelchair bound since he was shot at 12 years of age. His latest physical challenge, however, may prove to be the ultimate bout with life and death.

According to San Antonio police, they were called out to the access road near I-35 and Bethune after 4 a.m. Friday, where Varner had been hit by a Star shuttle van.

“Just the look he gave me — ‘help me,’” said his tearful sister, Patricia Mason, who also witnessed the crash. “I couldn’t do anything.”

Mason and SAPD said Varner was trying to return to his nearby apartment from the store when his wheelchair ran out of power. His sister got the call to go help. She brought a charger, but it wasn’t enough to help the motorized chair make it.

They started waving a white bag as a reflector while they pushed her brother towards his home, Mason said.

“First car we saw was the police car. He moved over,” she said. “The other people moved over.” But not the bus driver, she added.

Police said the van’s driver didn’t see Varner, his sister, and another person trying to get the wheelchair bound man out of the way. As the women jumped to out of the way, Varner was hit. He was taken to Brooke Army Medical Center in critical condition. The driver was not injured, investigators said. That driver, however, was in a state of shock, they added.

Traffic investigators said the incident did not merit criminal charges because it was an accident.

Varner’s family said the situation will require faith for a holiday miracle.

The Wreck

Our client was driving a Comal County ISD school bus on US Highway 281, near Rebecca Creek.  A plumber, driving a large plumbing truck, failed to maintain a proper lookout and crashed into the side of the big, bright yellow school bus.  The Comal County Sheriff responded to the scene of the collision, conducted an investigation and determined that the plumber caused the collision.

Personal Injuries

The force of the collision caused our client to suffer a retinal detachment.  A retinal detachment is a separation of the light-sensitive membrane in the back of the eye (the retina) from its supporting layers.  Retinal detachments are treated by  Vitrectomy surgeries, which are invasive and painful.  These surgeries included a scleral buckling procedure and extensive laser.  Our client also underwent another operation to remove a cataract that developed because of the vitrectomy surgeries.  Unfortunately, vision could not be restored and he permanently lost vision in his right eye.  Our client sought damages for being blinded in his right eye.

The loss of vision in his right eye caused our client to lose his commercial driver’s license.  According to leading experts, binocular vision is required for a Texas commercial driver’s license.  Binocular vision is vision in which both eyes are used together.  Given that our client suffered near total vision loss in his right eye, he only had monocular vision and lost his commercial driver’s license.

How Did the Explosion Happen

ConocoPhillips claimed that the explosion was caused by an upset at a key gasoline-making unit.  Conoco reported that the explosion occurred in the gasoline-producing fluidic catalytic cracking unit at its refinery.  A Conoco representative indicated that a steam line failed during maintenance, causing a portion of the refinery to be evacuated.  During this evacuation, several workers were hurt, including our client.

Personal Injuries

Our client suffered serious personal injuries to his knee.  He underwent continuous medical treatment, including physical therapy, pain management, and surgery, for more than a year.  Ultimately, his doctors determined that he needed a total knee replacement.  He will be required to continue receiving medical treatment for the foreseeable future.

The Verdict

A jury in a Fort Bend County district court awarded $1,789,049 to a trucker who blamed a Frito-Lay delivery truck for making him lose control and roll his 18-wheeler.

The 18-Wheeler Wreck

On Nov. 21, 2005, our client was driving on the interstate near Katy when a Frito-Lay vehicle allegedly cut in front of him. He lost control of his tractor-trailer, struck two cars and overturned.  Frito-Lay argued that its truck didn’t cause the accident and that no Frito-Lay vehicle was near Abbott that day.

The jury disagreed, and on April 27 awarded Abbott the full amount he was seeking.

Serious Personal Injuries

Our clients sustained a broken leg, neck injuries, permanent tissue damage to his calf and spleen injuries. He underwent four surgeries, including removal of his spleen and a two-level cervical fusion.

Abbott v. Frito-Lay Inc., No. 06-CV-148097

Court: 434th District Court, Fort Bend County

Terms of the Business Lease Agreement

Our client agreed to pay $175,000.00–$25,000.00 down and $50,000.00 due in each October, November and December–for the legal right to enter and use the lease property for a period of one year.

Wrongful Eviction and Termination of the Lease Agreement

Before the end of the commercial lease agreement, the Defendant evicted our client from the leased premises without judicial process and terminated the lease. As a result of the eviction, our client’s business lost many hunts and a significant amount of money.

The Lawsuit

We filed suit against the Defendant for wrongfully evicting our client before the end of the lease. The case is currently pending at the District Courthouse

The Lease Agreement

Our client leased a 70 year old, 15,000 square foot warehouse space from in hopes of expanding its business.  The leased property had remained vacant for more than a decade before the subject lease.  In order to convince our client to lease this old, long vacant warehouse, the Plaintiff agreed to provide funds to our client to renovate and build-out the leased premise, commonly called Tenant Improvement Funds.

Construction Project and Renovations Runs Over-Budget

Not surprisingly, repairing and renovating the 70 year old deteriorating building proved to be both difficult and expensive.  Our client used the Tenant Improvement Funds to convert the warehouse into a showroom and processing center, and to repair damage to the premise caused by the Plaintiffs repeated decisions to defer maintenance.  In addition to extensive cosmetic work, our client demolished walls, built walls, repaired restrooms, repaired loading docks, repaired specialty “cold room” refrigerators, repaired the heating and air conditioning, repaired existing electrical to bring it up to code, installed new electrical, repaired existing plumbing, and installed new plumbing.

In total, the Plaintiff paid $405,375.88 in Tenant Improvement Funds.  The actual cost of the project exceeded the pre-construction estimate by $35,375.88, or about eight percent (8%).  Ultimately, our client was sued because the project ran eight percent (8%) over-budget.

The Trial

Our attorneys vigorously defended our client all the way to the courthouse.  After picking a jury and obtaining favorable evidentiary rulings, the case was successfully resolved at the courthouse.

In the lawsuit, we alleged that the fire should never have been started.  The county where the fire was started enacted a Burn Ban nearly three (3) months before the subject fire because the county was in the midst of a severe drought and dangerous fire weather conditions had developed.  After the county instituted the Burn Ban, the fire weather conditions continued to deteriorate.  Within months, the local Natural Resource Conservation Service (NRCS) branch determined that the fire conditions were too hazardous to burn and issued a moratorium on prescribed burns.  Following the NRCS burn moratorium, the fire conditions continued to deteriorate.

Days before the Defendant started the fire, the fire weather conditions in the county became so hazardous that the National Weather Service issued a “Red Flag Warning”—a warning indicating extremely hazardous fire weather conditions—for the following day.  The next day, in addition to the Frio County Burn Ban, NRCS burn moratorium, and Red Flag Warning, Governor Rick Perry issued a proclamation certifying that the county was “threatened by extreme fire hazard” as a result of the weather conditions that developed in South Texas.

The weather forecast for day of the fire predicted low relative humidities and 25 mile per hour wind gusts.  The actual wind gusts on the day of the controlled burn reached at least 29 miles per hour.

Despite the severe drought, high winds, low relative humidities, County Burn Ban, National Weather Service Red Flag Warning, NRCS burn moratorium, and the proclamation by Governor Perry of an “extreme fire hazard”, the Defendants ignited an controlled or prescribed burn.

Experience Counts.

Attorneys at Martin & Cukjati are experienced in aggressively representing individuals and families in wrongful death lawsuits against powerful insurance companies, corporations and government agencies.

Damages commonly available in a wrongful death lawsuit are:

• Loss of financial support;
• Loss of household services;
• Loss of love and companionship;
• Mental anguish;
• Loss of inheritance; and
• Funeral expenses.

Do Not Wait to Contact Us.

Time is important in any personal injury or wrongful death claim. The insurance companies for the other party will likely be working hard to avoid paying you a fair value for your claim. Contact us now to discuss your case and the course of action appropriate for you.

If you have lost a loved one, our San Antonio Wrongful Death attorneys are here to assist you. Please contact us at (210) 223-2627 or tell us about your case online by filling out the form on your left.

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