Following the accident, the injured party filed a lawsuit against the Water Department and the Town of Hempstead.

March 6, 2013,

In fall of 1989, an employee of the water department of the Town of Hempstead borrowed a city pick-up truck to drive it home. He had been allowed on several prior occasions to borrow the city truck to get home. He believed that it was OK for him to borrow it on this date to get home. On his way home, he was involved in an auto accident that resulted in serious personal injury. Following the truck accident, the injured party filed a lawsuit against the Water Department and the Town of Hempstead.

The Town of Hempstead countered that they do not feel that they should be held liable since the employee was not at work or engaged in any city business at the time of the accident. Further, he had not requested permission to borrow the truck on this date. The other times that he had been permitted to borrow the truck; he had asked for and received permission to do so. This was not the case on the night of this incident. In fact, the Staten Island employee’s job for the city did not require the use of a vehicle at all. The employee even testified that he had received specific instructions prior to the date of the accident not to take a truck home. He advised in testimony on several different occasions that no one had given him permission to use the truck on that night. He advised that he took it anyway because he needed to get home. The evidence that was presented in reference to the employee being told specifically that he could not take the truck home was not argued by either side. However, there were no prior violations by this employee or any other on file prior to the accident of the “no personal use” policy that had been implemented in the fall of 1989.

The Justices, however, ruled that since the employee had been allowed on prior occasions to use the truck, he would have believed that there was an inference of implied permission. Vehicle and Traffic Law § 388 (1) states that an owner of a motor vehicle is liable for the negligence of one who uses or operates the vehicle with the owner’s express or implied permission.

Because of this, the majority of the Westchester Justices ruled that the employee had discretion to use the vehicle and is liable to cover him in the accident.

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Serious injury results when tailgate opens

February 28, 2013,

On April 1, 1987, a New York City Department of Sanitation employee was injured at work. That day, he was working with another employee of the New York City Department of Sanitation who was assigned to drive the truck. The injured employee was loading bags of garbage into the truck when the tailgate of the truck popped open and struck him in the groin area. As a result of the accident the Nassau employee suffered serious and permanent physical injuries. The injured employee alleges that the cause of the accident that day was that the other employee had failed to ensure that the tailgate pins locking the tailgate were free from obstruction and fully engaged.

A safety report that was issued following the incident states, “. . .it was apparent that 1 1/2 [inches] of debris by the left pin, and 1 1/4 [inches] of debris by the right pin. This debris, it appears, held the tailgate away from the body of the truck making it unable for the pins to rise to the proper level. The pins being unable to rise to the proper position enabled the tailgate to force open under pressure of cycling when the truck became loaded.” It was exposed that the pins were not checked that date at the beginning of the driver’s shift or when the vehicle was dumped prior to the truck accident. Failure to clear the debris out of the tailgate was a violation of department regulation teletype #86-3431.

Department regulation # 86-3431 states that the operator of a garbage truck in the city is not to rely on the electronic indicators in the cab area of the truck to determine if the tailgate is properly secured. He must get out and visually check the pins to make sure that they are not blocked by debris. The Suffolk safety inspector found debris in both of the pins and it was this debris that kept the pins from locking and permitted the tailgate to open. The supervisor that date stated that the driver was at fault and that he would be duly disciplined. The driver was not disciplined.

The court found that on the date of the accident it was the driver’s responsibility to check the pins. The driver stated that he did examine them. There are unresolved factual matters as to how the accident occurred and what the proximate cause of the accident was. Any summary judgments would be inappropriate in such a case. It was referred for trial.

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The New York Fire Department responded to the scene,

February 25, 2013,

On January 24, 1976 at around eight o’clock in the evening, an abandoned vehicle that was parked on the side of the roadway caught fire. The New York Fire Department responded to the scene, but the fire truck driver parked the truck in front of the vehicle that was on fire. Four other fire fighters began to battle the blaze. The fire captain on scene was holding a lantern and waving it to direct traffic. There were no police officers on the scene. The Nassau captain on scene noticed that a car was coming down the road and picking up speed. He attempted to get the driver’s attention so that he would not hit the four fire fighters who were working on the burning car. The vehicle did not slow up and proceeded to hit all of the firefighter killing one and seriously injuring the others. The injured firefighters filed a lawsuit alleging among other things that the driver was negligent, but that the City was also at fault for the accident because of the following: they failed to remove the abandoned car which caught fire based on the municipality’s responsibility to maintain its roadways in reasonable and safe condition for reasonable and foreseeable use.

The City failed to set up fire lines, the City was responsible for the actions of the fire truck driver when he placed the fire truck in front of the vehicle rather than using it to properly protect the safety of him and the other firefighters. The Suffolk Court left it to the jury to decide if the decisions of the Captain and the fire truck driver were questions of professional judgment or not. If it is determined that the decisions were those of professional judgment, then the City cannot be held liable. The jury was also instructed that under General Municipal Law § 205-a that a firefighter has an “independent statutory cause of action to recover damages for injuries or wrongful death caused ‘directly or indirectly as a result of any neglect. . .in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town, or city governments or of any and all their departments, divisions, and bureaus.’” This law applies to this situation because it is clear that the city failed to comply with several vehicular and traffic laws in failing to remove the abandoned vehicle in a timely manner.

The jury found unanimously that the city was negligent in failing to remove “the abandoned vehicle, failing to establish fire lines, and failing to park the fire truck properly, and that each of these acts of negligence was a proximate cause of the accident. It also determined that the (fire truck driver and the captain) as well as (the vehicle driver) were guilty of negligence which was a proximate cause of the truck accident.’” They also decided that the city was liable on the statutory cause of action.

The Supreme Court found that the causes of action against the city “should have been dismissed as a matter of law, prior to their submission to the jury.” In support of this decision, they cite that there was no evidence that under common law negligence that the abandoned vehicle was a danger to pedestrians or to vehicular traffic. The car had not been left in the middle of the street or on the sidewalk, but was safely off to one side of the roadway. It was clear that the city had notice of the abandoned vehicle and failed to remove it, but it “is well established that ‘public entities remain immune from negligence claims arising out of the performance of their governmental functions . . . unless the injured person establishes a special relationship with the entity, which would create a specific duty to protect that individual, and the individual relied on the performance of that duty.’” (Miller v. State of New York, 62 N.Y.2d 506, 510, 478 N.Y.S.2d 829, 467 N.E.2d 493; O'Connor v. City of New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33; Schrempf v. State of New York, 66 N.Y.2d 289, 496 N.Y.S.2d 973, 487 N.E.2d 883). Because the removal of the abandoned car was a government function, there was no special relationship with the city and the city cannot be held liable in a common-law negligence suit for not removing the car. This same argument is true for the actions of the fire truck driver and the captain.

The fire truck driver and the captain both testified that the reason for parking the fire truck in front of the burning car was that it made it easier to get the hoses off of the back of the truck onto the car fire. If they had parked on the side, or behind the car, the hoses would have had to be pulled around the fire truck. This was an “error of judgment on the part of the Fire Department officers in their conduct of the fire-fighting activities.” Because of this law, the city cannot be held liable for these actions under a common law negligence suit.

Additionally, as far as the regulations of the fire department § 11.5.21 (a) which provides that "Initial fire lines shall be established by the officer in command at a point beyond the furthest apparatus, whether operating or parked". The court determined that the captain was not in violation of this regulation and therefore, this “theory of liability should not have been submitted to the jury.” 507 N.Y.S.2d 193,120 A.D.2d 24.

Thus, the Justices ordered that the sole liability for this accident rests on the driver of the car. The original case has been set aside as it respects everything concerning liability belonging to the City of New York or either the fire truck driver or the captain. A new trial is granted to the driver of the motor vehicle solely on the issue of damages.

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Driver is not listed to operate vehicle

February 22, 2013,

In 1958, a company obtained an insurance policy for a truck that was routinely operated in the course of their business. On day during the coverage of this policy, the Queens business owner’s nephew was driving the truck and caused a commercial truck accident. The insurance company stated that they did not feel that they should be responsible for the accident because the nephew was not specifically listed to drive the vehicle. There is no argument that the nephew was at fault in the accident itself.

The Manhattan company owner argues that the policy itself clearly states that it covers any person who is driving the vehicle. The issue of if the owner had given permission to his nephew to drive the truck was not addressed during the trial of the issue. The policy states that it will insure not only the company owner, but also, any “person while using the vehicle with his permission.” The court points out that “the duty to defend is broader than the duty to pay.” Goldberg v. Lumber Mutual Casualty Ins. Co., 297 N.Y. 148, 154, 77 N.E.2d 131, 133.

The court points out that the entire issue of whether or not the insurance company is liable for the compensation that was awarded to the injured parties in this case would have been moot if the insurance company had simply represented the nephew in the first place. If they had done that, then their rights as well as the nephew’s rights would have been protected. Since they did not, the injured parties are allowed by law to seek compensation from the insurance company since the nephew either was not able to pay or simply did not pay the compensation ordered by the court.

The insurance company asked if in alternative, they could receive summary judgment in their favor which must be denied. There is only one disputed issue of fact involved in this case. It is whether or not the owner of the company gave permission to the nephew to drive the truck. A presumption is made that the nephew was operating the truck with the permission of the owner. The insurance company admits that they hold the insurance policy on the truck and that the company owns the truck.

The order of the court in this case is that a summary judgment cannot be approved and the case is reserved for trial.

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While enroute to a fire the fireman was riding on the back step of the fire truck

February 20, 2013,

On April 15, 1952 at around 6:30 in the evening, a volunteer fireman in Latham in the town of Colonie, in Albany County fell from the back step of a fire truck and was injured. While enroute to a fire the fireman was riding on the back step of the fire truck. The truck went through a four way intersection that had a saucer shaped drainage ditch in the center of it. The drainage ditch had been installed to correct water run off problem from the private land in the area. The area was very flat and water tended to sit on the surface without running off. The installation of the drainage ditch was designed to improve the problem. In fact, it only partially solved the problem of the water run-off and created a hazardous condition in the intersection of two highways.

When the fire truck crossed over the ditch, the fireman who was on the back stated that he remembered bouncing up about three feet into the air and then he came down into the street and rolled into the drainage ditch. A bystander collected him and took him to a local doctor where he received treatment for injuries to his arm. Later that night, he sought additional treatment from the workers compensation doctor for pain to his chest. The Bronx doctor who treated him stated that he did not remember the exact visit.

In fact, his records of the visit had been lost. He read from his report that he had treated the fireman for chest injuries from his fall from the truck. About six months after that visit to the Brooklyn workers compensation doctor, the fireman began to feel dizzy and sick. He reported to the local hospital where he was found to have a subdural hematoma. A subdural hematoma is a blood clot under the skull bone against the brain. It required brain surgery and he reports that he has been unable to work since the surgery.

The fireman states that the brain injury occurred from the fall off of the fire truck and sought to recover damages. The city disagrees. They contend that the fall from the fire truck was six months prior to the brain surgery and that they see no causal link between the two.

The Supreme Court agrees that the injured fireman failed to show a causal link and due to the time span between the truck accident and the surgery, the claim is dismissed.

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The incidents surrounding the accident are that a gas station was under construction on the corner

February 18, 2013,

On June 3, 2004 on Jamaica Avenue near the intersection with Route 112 in the Town of Brookhaven, Suffolk County, New York, a man was involved in a three car truck accident that resulted in serious personal injury to a driver of a black Hyundai. The incidents surrounding the accident are that a gas station was under construction on the corner. The construction manager of the gas station operated a white van that was illegally parked in front of the no stopping or parking sign on the side of the roadway. A dump truck also working on the gas station was dropping off a dumpster at that location and was blocking part of the roadway. The driver of the dump truck stated that he put out cones and set his lights to emergency flash to let oncoming traffic know that there was a hazard. The first vehicle in the accident completed a left hand turn onto the roadway and was blocked by the dump truck. She stopped in traffic to wait for the dump truck to move. The second vehicle did not see her stop and struck her vehicle, which knocked her into a third vehicle and ultimately it was knocked in to the vehicle of the victim on the opposite side of the roadway. The victim filed a lawsuit against the construction manager for causing the truck accident. The construction manager alleges that he was not responsible for any vehicle other than his white van and that the dump truck was not his or in any way under his control. He states that liability should be attached to the dump truck company and not to him.

The Nassau Court hearing this matter states that there are serious issues of fact that need to be determined. Whenever such issues of fact exist, it is incumbent upon the Court to ensure that a jury hears the arguments. Any motions for summary judgment must be denied as a matter of course in such circumstances because the Court cannot determine which issues of fact are credible and which ones are not credible. Because material facts of this accident are in dispute or different inferences may reasonably be drawn as the facts of this case, the Supreme Court must deny the motion for summary judgment as requested by the construction manager and his company. Only a trial can resolve issues of fact that are presented.

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Delivery truck in the wrong pavilion

February 15, 2013,

On January 9, 1960 an owner of a gasoline station in The Bronx, New York. On this date, the gasoline delivery truck arrived to fill the underground tanks. There is an asphalt area on the side of the station to provide the delivery truck with a safe location to pump out the fuel. The delivery trucks are not supposed to be on the concrete customer pavilion at any time. While the delivery truck is delivering the fuel, the owner would go out to the customer pavilion to be available in case of emergency since it took about an hour for the fuel delivery.

On the date of the commercial truck accident, the owner of the station was attending to a customer at the service island by pumping the gasoline into the customer’s car. The delivery truck was on the asphalt section delivering the gasoline. When the tanks were full, the driver got in and decided to cut through the concrete customer pavilion section rather than exit out of the station through the asphalt delivery side. He had failed to secure the handles to the bulk box compartment swinging doors on the side of the truck prior to pulling off. In fact, he stated that he did not even know that the owner was out on the customer pavilion and thought that he was still in the office area.

As the truck pulled past the owner of the station, he was struck in the rear end by one of the bulk box compartment doors that were sticking out. The force of the blow spun him around and into the rear tires of the delivery truck. A witness grabbed him and pulled him free of the wheels. This accident resulted in serious injury to the gasoline station owner. A lawsuit was filed by the gasoline station owner against the delivery truck driver and the company that the delivery truck driver works for.

At trial the jury found that the gasoline station owner was guilty of contributory negligence. The Supreme Court on appeal disagreed and stated that there is no evidence whatsoever to find that the station owner was responsible in any way for this accident. He was doing his job in a legal and safe fashion when the Long Island delivery truck left the area that it was supposed to be in and struck him. The trial court verdict was overturned and the case was remitted for a new trial.

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A truck was travelling on Lenox Avenue

February 13, 2013,

On July 25, 1967, a sixteen year old girl was walking on the sidewalk near 315 Lenox Avenue, , New York City. A truck was travelling on Lenox Avenue, lost control and struck a parked car. It then jumped the curb and drove onto the sidewalk where it hit the girl causing her to be pushed under the porch of a house. This truck accident caused her serious injury. Her mother filed a lawsuit against the driver of the truck for loss of her daughter’s services and medical and hospital bills.

The Queens driver of the truck denied all allegations. He denied that it was his truck. He denied that he was driving the truck. He denied that he lived in New York. His allegations of complete noninvolvement were too false as to cause the court to comment on the impropriety of his denials. There is no reason to believe that he is not responsible for the accident.

When the driver of the truck commented on the truck accident, he advised that he was heading east on Lenox Avenue when his truck struck a parked vehicle, went out of control, and jumped the curb. He advised that two girls walking on the sidewalk tried to run up steps of a porch and his truck hit the girls and shoved the girls and the steps under the porch.

The court found that as a matter of law the girl and her friend were both free from any contributory negligence in the case of this accident. The court further comments that the only conclusions to be drawn from the truck driver’s own admissions was that “he did not maintain a proper lookout for vehicles parked on Lenox Avenue, did not have his pick-up truck under proper control and that after having struck the parked vehicle he fully lost control of the pick-up truck which then jumped the curb, crossed the sidewalk, and struck the steps of the porch and (the girls). As a matter of law it is determined (the truck driver) was negligent and his negligence was the proximate cause of the injury to (the girls.)(288 N.Y.S.2d761.

Therefore, the court rules that there are no triable issues of fact and that liability for this accident was clearly established as resting solely with the driver of the truck. The Court finds that the driver of the truck is liable for the accident and that the victims are entitled to recover whatever damages that a court trial may asses.

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The eastbound vehicle was occupied by a male driver

February 11, 2013,

On July 2, 1955 at around four o’clock in the afternoon, a truck driver left the Twin Bridges bar and headed west on Route 11 between Mooers, New York, and Champlain, New York. At some point his truck came in contact with a vehicle that was eastbound. The eastbound vehicle was occupied by a male driver, his wife, two daughters, and his daughter in law. The Staten Island male driver of the car was killed in the commercial truck accident. The wife was still in the hospital and unable to testify at the time of trial. The daughters both claimed that they saw the truck shortly before impact cross over the center line of the road to sideswipe their vehicle. The daughter in law, who was seated directly behind the deceased driver stated that she had observed the truck cross the center line previously and then return to the correct side of the road. She stated that as the gap closed between the two vehicles, the driver of the truck crossed the center line again and this time hit their car with his truck.

The driver of the truck was criminally charged with Driving Under the Influence of Alcohol or Drugs and later Vehicular Homicide. He was convicted and sentenced to five years imprisonment. The jury was not privy to this information and although there was much discussion about the truck driver’s condition, there was no proof of his condition presented in the court. In fact, although it was pointed out that at the hospital following the accident, the truck driver’s blood was drawn and was given to the State Trooper, the results of that blood alcohol content kit was not discussed in the civil trial. There was not even a mention that it was or was not tested. If the jury had been told of his criminal charges and arrest, the inference could probably have been made.

However, as it stands, the victim’s family’s Westchester attorney only brought forth witnesses who could testify to the truck driver’s condition the night before while he was at the same bar. He had been so drunk that he had tossed his truck keys to another patron. He was described as being loud and boisterous and causing a scene. However it was pointed out that this was his normal demeanor even if he was sober. It was clear that he was asked to leave the bar.

The Justices found that at no time in the original trial was the term intoxication defined. The Justices also found that the evidence of his demeanor and condition from the night before was highly prejudicial. They felt that this blurred the real issue “and confused the jury to a point which deprived the defendant of a fair trial.”

In this case, judgment is reversed on the law and a new trial ordered.

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Driver falls off his truck and sustains injuries

February 8, 2013,

October 29, 1954 a Manhattan husband and father of two died because of an accident while he was working for a machine company. On that day, the man was walking back toward his company truck that he had parked a few moments before. He had been talking to some of the other employees and was going back to get into his truck. A few minutes after walking away from them, the other workmen heard him fall and turned around to see the employee on the ground with his hands on his head. He was about ten feet from the rear wheel of his truck.

None of the other employees saw what happened before he fell or even how he fell. There was speculation that he had fallen off of his truck, but no one actually saw him fall. The truck had mud on the tires and wheel wells, the fallen employee had no mud on him. The employee had a fracture to his skull and had suffered a stroke before dying. The issue here is which came first. Did he have a stroke and then fall fracturing his skull or did he fall, fracture his skull and the fracture led to the stroke. The only evidence presented at trial of a fall from the truck was on the attending physician report and that doctor stated that he had been told by one of the other employees that the victim had fallen off of the truck.

The company brought forth medical records from 1952 when that particular driver had been rehired by the company. The doctors who had examined him had recommended that he not be rehired because his health was not suitable for the job. The doctor at that time had diagnosed him as overweight, with excessive hypertension, arteriosclerosis and alcoholism. This brings the concern back to the medical report from the date of the Truck accident that lists the cause of the injury as a fall from a truck. The doctor testified that he obtained that information from other employees. Each of the employees that was present on that date has testified and each one stated that they did not tell the Queens doctor that they saw him fall from the truck. In fact, they each stated that he was about ten feet from the truck when he fell and none of them saw him fall.

Based on this information, the Court believes that the employee suffered a stroke and then fell. The earlier decision and award are reversed and the claim is dismissed.

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A 20-year old teacher applied to the Long Island State Park Commission for a summer job

February 5, 2013,

A 20-year old Nassau teacher applied to the Long Island State Park Commission for a summer job. He worked as a laborer for the Commission at a warehouse in Jones Beach. One July day, the teacher was thrown off from a truck owned by the Commission after the axle of the truck broke. For the remainder of July and during the month of August that year, he did not work. For a six-week period, he was paid by the Workmen's Compensation Board, which paid for his hospital bill and the bill of his doctor. The teacher returned to his regular employment at a high school on Labor Day.

The teacher filed a suit to recover damages for the personal injuries he sustained as a result of the Truck accident. The teacher also asserted negligence claims against the State of New York and the beach authority.

The teacher testified that during the period of slightly less than three weeks that he worked, he had ridden on the running board, in the back of and inside the power vehicles that were used for transportation. On occasion, he had seen three people riding in the cab. He testified further that, because of the size of his two co-workers, there was no room for him in the cab on the day of the accident, because if he had entered the cab the driver would have been unable to shift gears.

The State and the Authority moved for a dismissal of the claim on several grounds, including that the teacher was not able to show that the State and the Authority were negligent and to prove his own freedom from contributory negligence and that the Workmen's Compensation is his sole and exclusive remedy since the teacher was a special employee of the Authority at the time of the accident and is bound by his choice of having accepted Workmen's Compensation from his general employer.

An employee may have both a general and special employer. In this case, the teacher elected to proceed against the Suffolk Commission under the Workmen's Compensation Law. He may not now bring an action at law against the Authority.

The court also pointed out that the teacher did not offer any evidence to show what caused the axle to break, or whether the State and the Authority knew of the condition of the axle or were aware that any unreasonable risk was involved. In his brief, however, the teacher states that he never claimed any negligence in the operation of the truck, but rather that he predicated his claim upon the fact that he was ordered by his superior to ride upon the running board of the truck and thus was not provided safe transportation.

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Five are injured by tractor trailor

February 3, 2013,

A personal injury suit was commenced against a tractor-trailer and the employer of the driver after four adults and one infant, while passengers in an automobile, sustained injuries as a result of a truck accident. The Staten Island driver of the automobile in which they were passengers died as a result of his injuries. A collision occurred between the passenger car and a tractor trailer. The tractor trailer was under lease. This case was tried by the court without a jury and the question of contributory negligence is resolved in favor of the plaintiffs. The defendants appealed.

According to records in court, the trailer truck was without load and deadheaded westward bound from Clinton, New Jersey, to Pittsburgh, Pennsylvania. It had been raining for some time prior to and at the time of the accident. The road surface was wet and visibility was fair. The accident occurred in the early morning about one o'clock. The sources said there was failure in the tractor trailer's engines and the passenger automobile struck the tractor which rested in its pathway.

Under the Pennsylvania law, the presence of a vehicle on the wrong side of a highway is prima facie evidence of the driver's negligence and the skidding or sliding of a vehicle of itself does not constitute negligence of the driver. It is thus incumbent upon the plaintiffs to prove that the skidding or sliding of the vehicle was due to the negligence of the driver. The operator of a motor vehicle is bound at all times to exercise reasonable care in its operation. As sliding or skidding of itself does not constitute negligence, something additional must be shown to justify a finding of negligence.

Applying these principles to the case at bar, the Westchester court found negligence in the operation of the trailer truck. The court noted that it is apparent that the trailer tractor failed to keep traction while proceeding up the grade necessary to remain in its lane. Although its first sliding may not have been anticipated, after its driver had straightened out and gained control of the vehicle, since the highway was then free of other traffic, he should have reasonably attempted to ascertain the cause of the slide in order to avoid its repetition, the court said. This he failed to do, and there was no explanation given for the second sliding of the trailer truck.

Accordingly, the court found that the tractor-trailer driver failed to exercise reasonable care in the operation of the trailer truck.

The court also found the employer of the tractor-trailer driver chargeable with the negligence. The lease covering the tractor-trailer provides that the tractor-trailer is solely and exclusively under the direction and control of the lessee.

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