Darco Transportation v. Dulen

Elmer Dulen (plaintiff) and Polly Freeman were hired by Darco Transportation (defendant) to transport goods cross-country. One night, Dulen stopped his truck behind another Darco truck at a railroad crossing. The signal arms malfunctioned and raised early. The first truck crossed the tracks, but the train hit Dulen’s truck, killing Freeman and injuring Dulen. Investigators found Freeman’s body wearing only a T-shirt with injuries primarily on her right side. Investigators observed that Dulen’s pants were unbuttoned, unzipped, and resting mid-hip. The passenger door on Dulen’s truck was intact, but the driver’s side was damaged. Testimony indicated that Dulen’s truck had a sleeping facility and that Freeman slept only in a T-shirt. Dulen told investigators that when the accident occurred, he was having sex with Freeman and she was sitting in his lap facing him. However, Dulen later denied making this statement. There was not enough room between the steering wheel and seat for two people. Darco’s operations manager testified Dulen was properly en route to his assigned destination. The trial judge found Dulen’s injuries occurred in the course of and arose out of his employment and resulted directly from the malfunctioning signal arms. A three-judge panel modified the trial judge’s order by awarding Dulen temporary total disability. The court of appeals sustained the three-judge panel’s order. Darco requested certiorari.