A Carroll County jury decided against awarding damages yesterday to a Western Maryland College chemistry professor who was severely injured in 1995 when a car hit him while he was jogging with a Westminster candy shop owner, who was killed in the accident on Route 97.
David W. Herlocker, 59, filed a civil lawsuit against the driver, Robert Dale Andrews, and the man's employer, Sheetz Inc., a Pennsylvania corporation, contending that the company had either allowed or forced Andrews to work a 20-hour shift that led to his blacking out or falling asleep at the wheel of his vehicle.
But the civil jury of three women and three men took about one hour to find that Herlocker had contributed to the accident. They found Sheetz was not negligent.
The jurors checked off questions on a verdict sheet after receiving instructions from Carroll Circuit Judge Luke K. Burns, who said Maryland law allows no monetary award if there was contributory negligence by the plaintiff.
Attorney Robert L. Simmons, representing Andrews, had emphasized the law in his closing argument, noting that neither Herlocker nor Andrews remembers what happened.
"We're all familiar with [Route] 97. It's really not a place to jog," he said. "They both had a right to be there. They both had a duty to avoid an incident."
Herlocker, apparently angered at the verdict, said he had not been negligent "and any runner would tell you that."
His attorney, Richard H. Offutt, said they were disappointed but would not say whether they would appeal. He had asked the jury for $600,000 in damages, in addition to more than $400,000 in expenses.
According to testimony during a three-day trial, Andrews had worked for 20 hours and was driving home to Westminster from a Sheetz, a convenience store in Gettysburg, Pa., at 6:40 a.m. Aug. 19, 1995, when the accident occurred near the entrance to Kalten Acres. The runners were on the shoulder facing traffic.
Andrews, who was 19 at the time, was not criminally charged in the accident that killed Terry Burk, 48, owner of the Treat Shop. Burk and Herlocker, charter members of the Westminster Road Runners Club, used to run up to 18 miles on weekends.
Herlocker has no memory of the 35 days after the accident, he testified. He spent months being fed intravenously, could barely speak and underwent several surgeries on his jaw and leg, as well as almost five years of physical therapy.
In his closing yesterday, Offutt said Sheetz should be held responsible for its employee's fatigue from long hours because of a shortage of staff. "Rob Andrews was a tragedy waiting to happen, and Sheetz knew it."
But Robert H. Bouse Jr., representing Sheetz, said Andrews was free by law to work for overtime pay and was not driving for the company. Pointing to others who work long days, such as doctors, teachers and police officers, he warned the jury against returning a $1 million-plus verdict that might set a standard beyond convenience stores.
"Does the manager have to say, 'Go home, don't work the second shift because you haven't had any sleep,'" he said. "We're employers; we're not parents or guardians."