Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

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29191ADS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-M-2355 _____________________________________________ LEONID DMITRUK, Administrator of the Estate of Alexander Bugaychuk, deceased, and YELENA BUGAYCHUK, an individual, and NATALIA MELNIK, an individual, and IRINA MOROZOV, personally and as administrator of the Estate of Yevgeniy Morozov, deceased, and as Guardian for SARA MOROZOV, a minor, and ELEANNA MOROZOV, a minor, Plaintiff, vs. GEORGE AND SONS' REPAIR SHOP, INC., a Colorado corporation, d.b.a. "George's Towing, GEORGE ROSLER, a resident of the State of Colorado,, Defendant. _____________________________________________

TELEPHONE DEPOSITION OF GEORGE ROSLER November 23, 2004 Pursuant to Notice taken on behalf of the Plaintiff at 1125 17th Street, Suite 600, Denver, Colorado 80202-2052, at 1:03 p.m., before Diane K. Scholl, Registered Professional Reporter and Notary Public within Colorado.

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APPEARANCES: KOMRON MICHAEL ALLAHYARI, Attorney at Law, from the Law Firm of Washington Law Group, 1001 4th Avenue Plaza, 32nd Floor, Seattle, Washington 98154, appearing on behalf of the Plaintiffs. ANDREW J. CARAFELLI, Attorney at Law, from the Law Firm of Hall & Evans, L.L.C., 1125 - 17th Street, Suite 600, Denver, Colorado 80202, appearing on behalf of the Defendant.

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INDEX EXAMINATION: By Mr. Allahyari By Mr. Carafelli 4 91 PAGE

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WHEREUPON, the following proceedings were taken pursuant to the Federal Rules of Civil Procedure: GEORGE ROSLER, having been duly sworn to state the whole truth, testified as follows: EXAMINATION BY MR. ALLAHYARI: Q. Mr. Rosler, my name is Komron Allahyari. I'm the attorney for -- or one of the attorneys for the plaintiffs in this matter, and I wanted you first, for the record, to state your name, and spell it, and provide us with your address. A. George Rosler, and my -- it's G-e-o-r-g-e, and my last name is Rosler, it's R-o-s-l-e-r, and I live at 144 1/2 G Avenue in Limon, Colorado. Q. Okay. And, just as a preliminary matter, if there's a question -- especially

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since we're here by telephone, a question that you don't understand or you want me to clarify, I -- because we're by telephone, I can't use the normal visual cues that someone doesn't understand what the heck I'm talking about, so

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definitely speak up, and I -- and I can try and clarify it for you. Also, if you at any point need to take a restroom break or a break of any kind, let me know. All I ask is that you answer the question -- if there's a pending question, to answer it first, and then you can take a break at any time. A. Okay. Q. Okay. Can you tell me who's in the room with you right now. A. The court reporter, and my lawyer, and I. Q. Okay. And that's it? Nobody else? A. No. Q. Okay. And are you on any medication of any kind at this time? A. No. Q. Can you think of any reason you would not be able to completely and truthfully

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answer questions during this deposition today? A. No, I don't. Q. Have you seen a deposition notice which asks you to come to this deposition today? MR. CARAFELLI: No, he hasn't seen

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it, Counsel. MR. ALLAHYARI: Oh, okay. And we just sent it, so he may not have. Q. (BY MR. ALLAHYARI) Okay. Let me -I want to take you back -- I want to jump right in and take you back to the events back in November of 2001, this accident that we're talking about. Do you know what accident I'm referring to? A. Yes, I do. Q. Okay. Why don't you go ahead and just, in your own narrative form, describe for me what you remember about that day, you know, the events leading up to -- perhaps you getting a call to go out to do some tow work, and then kind of walk me through that, and then I'll ask specific questions from there, if that's okay. A. The state patrol called me to go get a truck that was off -- the front wheel was off the pavement, to pull it back onto the highway.

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Q. Now, let me stop you right there. If you don't mind, I'll interject. You say who called you? A. The state patrol. Q. Okay. Go ahead. So they called

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you, and so did you take the call yourself, or -A. Yes. Q. Okay. And do you remember who from the state patrol called you? A. No, I don't. Q. If I -- if I told you -- well, do you know a Trooper Bandy? A. Yes, I do. Q. And how do you know Trooper Bandy? A. He's a state patrolman. Q. Okay. And I -- and, I mean, are you -- are you friends, or acquaintance, or has -A. Just acquaint -- just acquaint -acquaintances. Q. Okay. Through your work as a tow truck driver? A. Yes. Q. You don't belong to the same church

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or anything like that? A. No. Q. Okay. And do you know whether it was Trooper Bandy that called you that morning? A. No.

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Q. Okay. Could it have been? A. They just call and tell us what mile marker they need the wrecker, and that's just dispatch office calls. Q. I see. I see. The state patrol dispatcher office? A. Yes. Q. Got it. And so then I take it you responded to that? A. Yes. Q. Now, walk me through what happened. You drove to where? A. I drove to just past Cedar Point, and the truck was off -- the front wheel was off in a ditch. Q. Okay. And that's what you noticed when you got there? A. Yes. Q. And was there snow on the ground? A. Yes.

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Q. Ice? A. Yes. Q. Fog? A. No. Q. Any wind?

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A. I don't believe so. Q. How about was it snowing, or any sort of precipitation? A. I don't believe so at that time. Q. Did that change at any time? A. Not out there. Q. Okay. And then had it just snowed the night before, do you remember? A. I believe so. Q. Okay. Do you -- do you recall that there was a storm, a big storm, the night before? A. I could not answer that now. Q. Okay. And so you got there. You noticed the front wheel, was it the passenger side of the semi -A. Yes. Q. -- okay, was off the road in a ditch, did you call it? A. Just off the pavement.

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Q. Okay. Off the pavement. And what is off the payment? Is it a ditch, or is it gravel, or what is it? A. Just a ditch. Q. Okay. Is -- was it such that the

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semi truck couldn't get out of it, I guess is what I'm asking? A. Yes. Yes. Q. Do you know whether they had tried to get out of it? A. That I couldn't answer. I wasn't there. Q. Did you speak to either the driver or the passenger of that semi? A. The driver. Q. Was there a passenger? A. Yes. Q. Did the driver speak English? A. Yes. Q. How well? A. I would say not too bad. Q. Okay. You could understand him -A. You -Q. -- and he apparently, as far as you know, could understand you?

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A. Yes. Q. And who spoke first? Did you speak to him? A. I would say probably. Q. Okay. And what did you say to him,

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if you remember? A. Well, I would -- back up a minute. I would say he asked me if I could pull him out, and I said yes. Q. Okay. And was that pretty much the extent of your conversation? A. Yes, right then. Q. Okay. And then tell me what you did next. A. I pulled -- hooked the cable on the front of the truck and pulled the wrecker forward to pull him up on the pavement. Q. Okay. And at that time when you pulled up to the semi, did you pull up behind him or in front of him? A. In front of him. Q. And when you pulled up in front of him, did -- is it one of these things where you pull up in front of him and then back up, so that you're right in front of him?

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A. I would say probably. Q. Okay. And at that point, did you notice whether the semi truck driver had laid out any sort of warning triangles or any sort of warning devices that he was there stuck on the

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road? A. I would say no. Q. No, he hadn't? A. I would say no, he hadn't. Q. Is that something that you noticed at the time and thought that was odd, or, I mean -A. No. Q. Okay. Why not? A. Because when they're off in a ditch in a snowstorm, 99 percent of them don't put them out, because you can't see them anyhow. Q. Now, when you say in a snowstorm -A. Well -Q. -- you're not saying there was a snowstorm right then and there, right? A. Right. Q. Okay. So, under the conditions that you were in at that time when you came to the tow truck -- I mean, I'm sorry, when you came to

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the semi truck, would you have expected to see warning triangles then -A. No. Q. -- suddenly in a snowstorm? MR. CARAFELLI: Wait. Just a

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minute, Mike. George, let him finish his question before you begin your answer, okay -THE DEPONENT: Oh, okay. MR. CARAFELLI: -- because I don't think he can hear you. All right. Go ahead. I'm sorry. Q. (BY MR. ALLAHYARI) I had finished my question, if you caught that, Mr. Rosler. A. Repeat it. Q. Sure. Since there wasn't a snowstorm at that time when you pulled up to the semi, did you expect to see some warning triangles put out by the semi truck guys? A. No, because there was a patrolman there at that time, and he wanted it moved as quick as possible. Q. Okay. Would you expect -- so did you ever ask either the patrolman or the semi truck driver or passenger whether they had

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placed any sort of warning devices or why they didn't? A. No, I didn't, because the patrol said to go ahead and hurry and get it moved so they could get the lane of traffic opened up,

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and the patrolman was in the back with his lights going. Q. I see. And the patrolman, was that Trooper Bandy? A. I couldn't tell you at this time. Q. Okay. Are you familiar with other troopers in that area? A. Yes. Q. Approximately how many -- I don't mean an exact number, but are we talking five, 10, 20? A. I would say all of them that work out of Limon. Q. Do you -- can you approximate for me how many you know? A. No, 'cause I know them all. Q. Is it closer to five or closer to 20, do you think? A. I think it's closer to five. Q. Oh, okay. Did you ever at that

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time -- now, at that same time when you pulled up, did you -- I know you said that the trooper wanted you to hurry. Did you ever indicate to the trooper that you wanted to lay out any sort of warning devices?

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A. Not at that time. Q. Did you at any time? A. No, sir. Q. Okay. So you -- if I understand your testimony, you pulled the semi out, and -and then what happened? A. Then I asked the driver if it would be all right for us to go to the exit to get off of the highway to take care of the bill. Q. Okay. And the exit was approximately how far away from that point? A. Probably about a mile. Q. Okay. And what happened to the trooper at this ins -- this point? Was he still there? A. No. He had another accident to go look at. Q. Okay. So at what point did the trooper take off, before you pulled the semi out or after?

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A. I believe he left before we pulled it out. Q. How long did this process of, I'm -just correct me if I'm wrong. I envision you coming to the scene of this semi with its wheel

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off the road, and you pull in front of it, and then back up and get in position. The trooper wants you to hurry. The trooper's behind the semi with his lights flashing, and then you hook up and pull the semi out, and then you apparently have a discussion about pulling forward to the exit to get the bill paid. How long did this all take, approximately? A. About five minutes. Q. After the trooper left, you know, before you pulled the semi out, did you have any concern about laying out warning triangles then because the trooper's not behind the semi with its lights flashing? A. No, I didn't. Q. Why not? A. Because it wasn't going to take us just a very few minutes to get him out of the ditch. Q. Okay. And after you got him out of

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the ditch, did you unhook? A. Yes, sir. Q. Okay. And what's involved -- let me back up a second. What's involved in first hooking up the -- your tow truck -- do you call

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it a tow truck? A. Yes. Q. Okay. What's involved in hooking up the tow truck to the semi? A. Taking a cable and a chain. Q. And just from your tow truck, just cable and chain to the semi truck and hooking it up? That's it? A. Yep. Q. Okay. And so you unhooked after you pulled the semi out? A. Just to -Q. And then you -- did you have this discussion about pulling up to the exit before you unhooked or after you unhooked, if you remember? A. After I unhooked it. Q. Okay. And how much was the tow bill, do you recall, approximately? A. I couldn't tell you right now. I

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don't have it in front of me. Q. How much would something like that normally cost? A. Oh, probably somewhere around 150 to 200 dollars.

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Q. Okay. And is it -- is that 150 to 200 based on how far you had to travel to get to the scene, or how much time it took to hook up, or both? A. Both. Q. Okay. And how far did you have to come to get to the scene? A. 10 miles. Q. Okay. And is it -- it's on a freeway; is that right? A. Yes. Q. And what's the speed limit on that freeway, do you know? A. The speed limit on the freeway is 75 mile an hour. Q. Okay. But there was snow and ice on the ground, so you -- how fast did you drive to get there? A. I couldn't tell you now. It would be slow.

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Q. About -- I mean, can you approximate for me? A. It depends on how bad the highway is, how fast you end up going, because you don't want to go in the ditch.

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Q. Right. On -- given the conditions of that morning when you were traveling to the semi truck, can you -- can you approximate how fast you might have been going? You weren't going 75, I take it? A. Well, I don't believe so. Q. Can you approximate for me how fast you might have been going? A. Probably about 30 to 40 mile an hour. Q. Okay. And then you -- so you unhooked, and you have a -- what seems to be a fairly brief conversation. Was it just simply, "Do you mind if we go up here to the exit to settle up the tow bill"? A. To -- for him to call his company and find out how they wanted to pay it, yes. Q. Oh, okay. And then did he get on the phone right then and there to call his company?

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A. I don't believe so. I believe he got in his truck to drive it up to the exit. Q. Now, did you say that you wanted to pull off the exit or you just wanted to drive up to the exit?

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A. I said drive up to the exit to get off of the highway -Q. Okay. A. -- out of the lane of traffic. Q. So your intention was -- now, let me -- and maybe we're just -- this is maybe a telephone thing, but when you say to get off the highway, do you mean actually go down the exit off the highway? A. No, because if he went down off the exit, then I'd pull it back out onto the highway. Q. Because of the snow? A. Right. Q. Okay. Had there -- do you recall, had there been any other traffic down off that exit that you pulled up to? A. I would say no. Q. Okay. So fresh snow? A. Yes.

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Q. So you led the -- I don't want to put words in your mouth, but you proceeded towards this exit about a mile down the road, and the semi truck followed you there? A. Yes.

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Q. Do you know about how fast you were going to get to the exit? A. I could not tell you. I didn't look. Q. And then you -- maybe just tell me what happened next. Is -- so you're driving along. The semi truck's behind you. Then what happened? A. We pulled off to the exit. Q. Okay. And when you say you pulled off to the exit, maybe you could just describe a little deeper what you mean by that. A. We pulled, where the exit is to go off of the highway there, as far to the right as we could get without going into the ditch. Q. Okay. And how did you know that that was as far as you could go? Wasn't there snow on the ground there? A. Yes. Q. How did you know how far you could

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go before you would get in the ditch? A. Well, if you look at the snow, where it's on the highway, it's flat, and where it's down off the ditch, it would be lower. Q. Okay. Because it -- so it slopes

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away from the highway? A. Right. Q. Okay. And have you seen photographs of -- that were taken by the trooper? Have you seen those photographs at the accident scene? A. Yes. Q. And, looking at those photographs -first of all, when did you see those photographs? A. Yesterday. Q. Okay. And, having looked at those photographs, do you still believe that you were as far right as you -- as far off -- I'm sorry -- as far right -- if you're in your car looking forward, as far right as you could go without getting off the -- or without getting into the ditch? A. My wrecker was off as far as it could go without getting into the ditch. Q. Have you seen photos that were taken

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by my client? I know I -- your attorney has them, but they show -- they're a few days afterwards, when the snow's kind of melted. Have you seen those photos, or maybe not? A. No.

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Q. Now, when you were there at the scene, you pulled up to wherever it was you stopped, and at that point when you stopped, did the semi truck come up behind you and stop? A. Yes. Q. How long did that take from the time you stopped -- I mean, how far back was he from you? A. Oh, I'd say probably a quarter of a block. Q. Okay. And so you stopped there, and then he came up behind you and stopped right behind you? A. Right, about 10 feet behind me. Q. Okay. And then -- and then did you, after that, move your tow truck at all before the accident happened? A. No. Q. Okay. So you're there, you stopped, and you stayed there, and then the semi truck

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came, it stopped -- and did it stay there until the accident happened? A. Yes. Q. 'Cause I know the accident moved the semi truck.

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A. 6 foot. Q. Now, describe for me what happened after you stopped and the semi truck stopped. Did you get out of your vehicle, and did the semi truck driver or the passenger get out of his vehicle? What happened next? A. We pulled up there, and we wasn't there but just a very few minutes, and he was on -- I could see where he was on the phone trying to find out how his company wanted to pay this bill -Q. Okay. A. -- and the accident happened. Q. Now, you assumed that he was -- I mean, you probably -- could you see him on the phone? A. Yes. Q. In your rear-view, or you were out of your vehicle? A. My rear-view mirror.

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Q. Okay. And so he was on the phone to somebody, but do you happen -- how do you know that what -- who he was talking to? A. Because when we left down there where the accident -- where he was off the side

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of the road, he said he would call his company and find out how they wanted to pay the bill -Q. Okay. A. -- so I figured that's probably who he was talking to. Q. Okay. So you're making -- what I'm looking for is, At any point did the driver of the semi truck say to you, "Yeah, I just got off the phone with my company, and they said to do it this way"? A. It never got that far. Q. Okay. And -A. We wasn't there that long. Q. Okay. And so you were in your vehicle, presumably with the heat running, right? A. Yeah, 'cause it was cold. Q. I would imagine. And then the Angel Express, the semi truck driver and passenger were in their vehicle?

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A. Yes. Q. Could you also see the passenger sitting there? A. I didn't look that close. Q. Okay. But did you realize there was

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a passenger? I know some of them have these cabs, and I'm just wondering, did you know there was a passenger there? A. Yes. Q. And how did you know there was a passenger there? From earlier down the road? A. Yes. Q. Was the passenger -- were the Angel Express driver or passenger ever out of their vehicle? A. Yeah. Q. Either down the road or at this location? A. Down the road, they were. Q. Both of them out? A. Yes. Q. Okay. And what were they doing out? Just standing around, or what? A. I couldn't answer that. Q. Okay. I mean, what did it look to

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you like they were doing? A. They just looked, waiting for us to hurry up and get it off -- get it out of the ditch. Q. Oh, okay. Were they -- when you

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pulled -- sorry. I'm going back to when you pulled them out of the ditch, but were they in their vehicles as you pulled them out of the ditch, or somebody standing outside the vehicle? A. No, they were in their vehicle. Somebody's got to steer it. Q. Okay. Do you know if the passenger was also in the vehicle? A. I would say he probably was. Q. Okay. 'Cause it was cold? A. Yeah. Q. Now, I'm going back up the road by the exit. So you can see in the rear-view mirror -- I'm just recapping a little bit. You can see in the rear-view mirror the driver on the phone. You can't remember if you saw the passenger in there at the same time. And then what happened? Is this when the accident occurred, just right then and there? A. Yes.

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Q. Okay. And tell me what you recall about that. A. There was a great big bang. Q. Do you recall seeing -- before the bang --

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A. No. Q. -- do you recall seeing any sort of indication that something was coming? A. No. Q. Was there any fog there at the time? A. No. Q. And you said you'd seen the photographs by the trooper. In the photographs, there seems to be fog that you can see. Am I mistaken? A. I think you're mistaken. Q. So you're saying -- your testimony is there was no fog that day? A. Right. Q. What were the conditions? Was it just clear blue sky, or -A. I would say it was just cloudy. Q. Could you see any blue sky, do you know? A. I don't believe so. It's been quite

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a while ago. Q. Okay. Right. Do you know why you wouldn't have seen the -- let's call it the Budget truck, is what struck the semi truck -why you wouldn't have seen the Budget truck

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coming before it struck the semi truck? A. Well, it's kind of like this. I was setting in the wrecker, and I'd looked back, and he was on the phone, and I looked back forward again, and, bang, it happened. Q. It just -- I mean, just that quick like you described it -A. Yes. Q. -- or were there gaps between that? A. Huh? Q. What I'm trying to get at is the timing of it, 'cause you say you looked in your rear view, you can see the gentleman in the semi truck on his phone, you look forward, and then, bam? A. Right. Q. All right. So no elapse of time between, you know, you looking forward and then, you know, like 20 seconds forward, then the bang?

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A. Well, I would say I couldn't tell you. It happened right away. Q. Okay. And the reason I ask is because, if you were looking back in your rear view and you see the guy on the phone, I'm

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wondering, you know, why you wouldn't have seen the Budget truck coming from way back towards the semi truck. A. I wasn't looking right at that second. Q. Okay. And then so you -- so you described this as a bang. Obviously, it was -as we can see in the photographs, it was a big impact. Did it move the semi truck? A. Yes. 6 foot forward. Q. Did the semi truck touch your vehicle? A. No. Q. Okay. 'Cause you said it was -your vehicle was like 10 feet in front -A. Yes. Q. -- okay? Okay. So then what happened? Did you get out of your vehicle? A. No. I called 911. Q. Okay. And then what happened? Then

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you got out of your vehicle? A. Then I got out of my vehicle so they could get the state patrol and the ambulance and everything else out there. Q. And then go ahead and tell me what

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happened next, kind of in your -- in your own words. A. We walked to the back of the truck, and the drivers got out and walked back out there. Q. When you say we, you and who got out? A. My son was with me. Q. Okay. How old's your son? A. He's 22. Q. And how old are you, Mr. Rosler? A. About 50. Q. Okay. And so your son, when you were -- let me take you back down the road when you were pulling the semi out of the ditch. Was your son helping you hook up the semi? A. Yes. Q. Is that pretty normal, you guys go out there together and -A. In a snowstorm, we do.

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Q. Okay. And when -- you keep saying -- you always refer to in a snowstorm. You don't mean a snowstorm was happening that day. You mean a snowstorm had just happened? A. When we go out to pull a semi out

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after a snowstorm or during a snowstorm, we usually take two people with us on the wrecker. Q. Okay. Got it. So, going back now to the accident, you and your son -- after you called 911, you and your son get out of the vehicle. Did your son get out of the vehicle while you were on the phone to 911, or he just waited for you? A. I believe he got out as I was calling 911. Q. And did he walk back there by himself or did he kind of wait for you? A. I believe he walked back there by himself. Q. Okay. And so, after you called 911, you go back there, and so you and your son are back there now. You're -- you said the Angel Express driver, passenger then got out of their vehicle? A. I would say yes.

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Q. Did you see them get out, or were they already out at that point? A. I believe they were already out. You know, we was kind of moving, because we was kind of interested on what happened.

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Q. Right. And do you recall either the driver or the passenger of the Angel Express vehicle ever complaining about being injured or anything like that? A. The passenger was praying. Q. Okay. A. You could hear it. Q. Praying outside the vehicle? He was standing there praying? A. No. He couldn't get out. Q. Why not? A. 'Cause the driver -- the passenger of the Budget. Q. Oh, I'm sorry. I -- you're jumping ahead. I'm still on the Angel Express guy. A. Oh. They, I believe, were already out. Q. Okay. They were out. Did -- and I meant injury of the Angel Express guys. A. I don't believe they were hurt.

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Q. Okay. At least they never said anything to you? A. No. Q. Is that right? A. No, they didn't.

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Q. Okay. So I'm envisioning, and correct me if I'm wrong, that everybody now goes to the back of the semi truck and sees this horrific scene? A. Right. Q. And I think you were describing the passenger of the Budget vehicle, you could hear him praying; is that right? A. Right. Q. Was he praying in English, do you know? A. Well, you couldn't really understand that much at the time. Q. Why not? A. Well, all the metal that was around, and he was back inside of that van. Q. Okay. But you could -- you heard what sounded like praying? A. Right. Q. And there was just one voice coming

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from there? A. Right. Q. Was -- what did you do next, or what did anybody do next? A. We waited for the state patrol and

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the ambulance to get there. Q. About how long did that take? A. I could not tell you for sure. Everybody was kind of shook up over it. Q. Yeah, I would imagine. And then so do you remember anything between the time you go back there and you see this horrific scene and the time when the first unit, whether it's a trooper or aid unit or the first help arrived? Anything happen between that time that you can remember? A. No, I would say it's a trooper, 'cause I would say he got there within just a very few minutes, 'cause he was right close when all this happened. Q. And do you know whether that was Trooper Bandy? A. I believe it was. Q. Okay. And does that help you refresh your recollection as to whether it was

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Trooper Bandy who was there when you pulled the semi truck out of the ditch earlier? A. No. Q. Okay. It could have -- but could it have been Trooper Bandy?

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A. It could have been. Q. Okay. So Trooper Bandy -- let's assume it's Trooper Bandy arrives at the scene of this accident that -- then what happens next? A. Then the ambulance crew and the rescue truck gets there. Q. Does Trooper Bandy do anything before the ambulance or the rescue crew gets there? A. No, I don't believe so. Just sit there with his lights on. Q. Was there any attempt to -- at this point to pull the -- or to get at the gentleman that was -- seemed to be praying? A. No. Q. Why not? A. Because we have to wait for the ambulance crew. We've got nothing to do with that on taking people out anymore. Q. And why not?

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A. Because we're not -- how do you put it? We're not a rescue truck or rescue people. Q. Okay. A. They take care of that themselves. Q. Has somebody told you not to do

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that, or is this just your -- the way you do business, or -A. I don't know how to answer this question. Q. Let me -- let me try and rephrase it. You -A. Can we stop a minute -Q. Sure. A. -- before I answer this question? Q. Well, I have to get an answer from you first -A. Okay. Q. -- but you -- let me try and rephrase it and see if this helps at all. You indicated to me that you don't do that. I'm not sure if you stated you don't do it anymore or you don't do it because you're not a rescue crew. And I'm wondering why you don't do it, if it's somebody's told you not to do it, or whether it's just something you don't

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do as a -- as a business practice, maybe for liability reasons, you don't want to move an injured person, or whether you think it's -you're not allowed to under the law, or I'm just looking for -- I'm just shooting out examples,

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but I'm looking for a reason why you don't do that. A. We used to, until I got rescue crews to come out and take the people out. We had to help the rescue -- the wrecker drivers and that helped getting people out and all at that time. Then they got the rescue crews and everything there, so then we all quit doing it, because everybody's sue-happy. Q. Yeah. Okay. Now, let me -- let me jump to -A. Whoa, we answered the question. Can we take a break? Q. Yes, you can. MR. CARAFELLI: You want to call back in a couple minutes? I think what we need is a bathroom break, too. MR. ALLAHYARI: Sure. (A break was taken.) MR. ALLAHYARI: I'm back on the

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record. Q. (BY MR. ALLAHYARI) Let me ask you about the -- any sort of warning devices or warning triangles at the accident scene. Were any placed prior to that accident by either you

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or the Angel Express driver or passenger? A. No. Q. And why not? A. Because we was only going to be there just a very few minutes. Q. And when you were sitting in your vehicle and you saw that the Angel Express driver was on the phone, did you know how long he would be on the phone? A. How could I tell? I wasn't there. Q. Right, but my -- I guess my question then is, How did you know how long you would be there? A. I had another accident to go to, so I wasn't going to be there very long. Q. What's the -- is it possible you could have, depending on how long this truck -this Angel Express driver was on the phone, is it possible you would have been sitting there for 10 minutes?

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A. I was hope not. Q. How long were you sitting there before the accident happened? A. Probably about two minutes. Q. Okay. And do you believe or do you

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have any understanding of what your duties are as a tow truck operator in regard to placing warnings devices or warning triangles? A. I -MR. CARAFELLI: Well, first let me object, calls for a legal conclusion. You can answer it. A. I know what mine are for my wrecker, yes. Q. (BY MR. ALLAHYARI) Okay. Tell me what your understanding is. A. My understanding is, when you pull off to the side of the road, as soon as possible, you put reflectors out. Q. Okay. And did you do that in this case? A. We wasn't there but just a very few minutes. We didn't have time. Q. When you say you didn't have time, I want to talk about that a minute. You say you

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were sitting there in your vehicle, you and your son, right? A. Right. Q. Is it -- would it have been possible for you, while the Angel Express driver was on

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the phone -- would it have been possible for you to get out of your vehicle and place warning devices around the Angel Express semi truck? A. That should have been up to the Angel Express truck, 'cause he was right behind me. Q. Okay. And is that your understanding, then, in this particular situation, that you were not required to place warning devices behind the Angel Express semi truck? A. Right, because he drove his truck up there. I didn't drive it. Q. Okay. So I just want to clarify. So it's your position that you had no duty to place warning triangles behind the Angel Express truck at the scene right before the accident happened? A. You have to have time to get out to do that, and we didn't have that much time

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before the accident. Q. Okay. But I want to separate the didn't have enough time from whether if you had enough time, whether you would have a duty to place it behind -- these warning devices behind

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the Angel Express truck? A. The Angel -MR. CARAFELLI: Hold it. Let me object, again, as calling for a legal conclusion. Go ahead. Q. (BY MR. ALLAHYARI) And, again, I'm asking for your understanding of your duties in this regard. MR. CARAFELLI: Same objection. You can answer. THE DEPONENT: Now I can answer? MR. CARAFELLI: Yeah. A. I would say the Angel Express drivers should have got out if they -- to get their warning devices out. Q. (BY MR. ALLAHYARI) All right. And I'm asking you about your duty. Is it your understanding that you had a duty at that particular scene -- assuming you had the time to do it, that you did you have a duty, and is it

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your understanding you had a duty, to place the -- an independent duty -- Angel Express may have had a duty, but did you have an independent duty to place warning triangles -- warning devices behind the Angel Express truck at that

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location? A. No. I would say no. Q. And why not? A. Because that is the truck driver's responsibility to do, not the wrecker's driver's responsibility to do. I didn't pull the truck up there. Q. Okay. And so would it have been different had you pulled the truck up there? A. Then it would have been different. Q. And how would it have been different? A. Then I would have been responsible for it all. Q. Now, isn't it true -- or is it true that you required the Angel Express truck to stop behind you? A. No. Q. How is that not true? A. I just said let's go to the exit.

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Q. Okay. A. I didn't tell him where to park it or anything else. Q. Do you believe that the Angel Express truck driver had the discretion to carry

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on past you? MR. CARAFELLI: Objection, speculation, form and foundation. Go ahead and you can answer, if you understand the question. A. I would say he could have pulled in front of me. He could have parked wherever he wanted to. I wasn't driving the truck. Q. (BY MR. ALLAHYARI) What was your expectation when you stopped there at the exit? Was your expectation he was going to pull up behind you? A. I didn't have no idea what he was going to do. Q. Well, did you think that he would just carry on down the road and not stop? A. If he would have done that, I would have called the state patrol. Q. Was there room for him to pull in front of you? A. Yes.

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Q. So he could have pulled in front of you and stopped? A. Yes. Q. Would he not have been going down the exit ramp at that point?

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A. That would have been his choice. Q. Okay. And to do so, would a -- he probably would have got stuck, according to your testimony, right? A. Well -MR. CARAFELLI: Objection, speculation. A. I could have pulled him out again. Wouldn't have bothered me a bit. Q. (BY MR. ALLAHYARI) When you stopped, and then the Angel Express driver pulled up behind you, did you indicate in any way to the Angel Express driver that that is not where he was supposed to stop? A. No. Q. Did you think it was -- it was acceptable for him to stop right behind you? A. I believed both of us was where we ought have been. Q. Did you notice that the Angel

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Express driver and passenger did not get out of their vehicle to place any sort of warning devices? A. No, 'cause I wasn't paying attention to what the passenger was doing.

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Q. Did you get out of your vehicle at any time or your son at any time before the impact? A. We didn't have that much time. It happened right away. Q. Well, you said it was two -according to your testimony, you said it was about two minutes? A. Yeah. Q. And could it have been longer than two minutes? A. I don't believe so. Q. And how do you fix the time? Are you just guessing, or -A. We have a clock in the wrecker, so we know about how much to charge on some of the things that we have, and I'd already had a phone call that I had another accident to go to, so I was pretty well watching the time on the clock. Q. And when did you get that call about

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the other accident? A. When we was down there pulling the semi out. Q. And who took that call, you or your son?

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A. Me. I did. Q. Okay. And where was the next accident located, about how far? A. Just down over the hill. Q. A couple miles, or -A. Yeah. Q. Did you eventually go to that accident scene? A. No. Q. Why not? A. Because I had to take care of this one here when this Budget truck run into the back of the truck. Q. And did you -- after the impact, did you -- you said you called 911, right? A. Yes. Q. And then did you call somebody to tell them, "I won't be coming to the next accident"? A. No.

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Q. At any point, you never called? You just assumed that they hired someone else to go? A. I would say probably. Q. Okay. After the impact happened, did you ever ask -- first of all, after the

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impact happened and then you got out of the tow truck and you went back to the semi truck and you saw the scene, did you happen to notice there were no warning triangles out there -A. No. Q. -- or warning devices of any kind? A. I didn't pay that much attention, because right then the patrolman got there. Q. Okay. Did -- so at any point after that, did you think to yourself or did you notice there were no warning devices out here? A. The warning device we had then was a state patrol car. Q. Sure, but, I mean, before -- you know, in terms of trying to think how did this accident happen, why did this Budget truck run into the -A. I didn't think about that. Q. You didn't think why or how did this happen?

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A. That's not up to me to decide how this happened and all. I'm not an officer. Q. Yeah. No, no. I -- but, just as a basic -- you didn't have just a basic human reaction to try and figure out how could this

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Budget truck run into the back of this stationary semi truck? A. That -- no, I didn't. It just happened. Q. The thought never crossed your mind? A. Nope. Everybody was too shook up. Q. Do you know whether there were any warning devices that were placed back there? A. No, I don't. You mean -Q. And, of course, I'm talking about prior to the officer coming. A. I don't believe there was. I don't know. Q. Did you notice any skidding marks or anything that might indicate how this Budget truck came to run into the back of the semi truck? A. I'm not an officer. I don't do that. Q. So you didn't do that, you mean?

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A. No. I'm not an officer. That's officer's job. Q. Okay. And I'm not asking whose job it is. I'm just asking if you did that, just -A. It's an officer's job.

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Q. I understand that. I think what you may be trying to tell me is that you didn't do it, but that's my question, is did you do that? I'm not saying whether it was your job. A. No, I didn't. Q. Did you catch the question? MR. CARAFELLI: I'm sorry. He answered, no, he didn't. MR. ALLAHYARI: Oh, I'm sorry. It didn't come through. Q. (BY MR. ALLAHYARI) Similar question would be, Did you notice skid marks of any kind -- without trying to evaluate how the accident happened, but did you see any sort of -- I guess maybe it wouldn't be skidding, but skidding on the snow? A. It's kind of hard to see them when it's snow and ice. Q. Okay. And so you didn't see them, right? Is that what you're saying?

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A. I didn't. Q. Did you look for them? A. No. Q. Okay. When -- in your normal practice, when you go to, let's say, tow

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somebody, do you place warning devices behind their vehicles? A. If it's going to take me a few minutes to get the vehicle hooked up and all, I do. Q. Is it your understanding that you're not required to place warning devices behind vehicles you're about to tow if it's only going to take you a few minutes? A. If it only takes me a very short time to get it done, we don't, but if it takes very long, we put them there. Q. Okay. And so -- and so that's your regular practice? A. Yes. Q. Do you have any way of knowing how fast the Budget truck was moving prior to impact? A. No. I wasn't driving it. Q. Do you know whether anyone was cited

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for anything related to this incident? A. I think the accident part will tell you that. Q. But you -- but do you know? A. I believe the officer said to me

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that if he -- the driver had lived, he would have got a ticket. Q. The driver of the Budget truck? A. Yes. Q. And did -- do you know what that was based on, or he just made that statement? A. He just made that statement. Q. Okay. How many -- at that location there where the accident happened, this is Interstate 70, right? A. Yes. Q. And the -- and it's at Exit 348; is that correct? A. Yes. Q. Okay. And how many lanes does I-70 have right there? A. Four. Q. Two in each direction? A. Yes. Q. Okay.

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A. With a median in between them. Q. And on your side of the road there, what direction were you and the semi truck driver facing? A. East.

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Q. Okay. And so the lanes traveling east, there's two lanes, and is there a third lane, which would essentially be the lane to exit, at that Exit 348? A. Yes. Q. Now, where you stopped, isn't there -- I mean, where you physically stopped that tow truck with a semi truck behind you, there was three lanes there, right? A. Yes. Q. Because that third lane was an exit lane; is that correct? A. Yes. Q. And where -- if you recall, where were you located -- you and the semi truck located? Were you within that third lane, or were you outside of the third lane, more on the shoulder? A. I would say we were in the third lane towards the shoulder.

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Q. Okay. And so -- and you indicated that the semi truck was parked behind you. Was it directly behind you? A. Yeah, I believe so. Q. Now, when you say you were in the

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third lane, how much -- like completely in the third lane, or do you think you were -- any part of your vehicles were out of the third lane onto the shoulder? A. I would say mine was in the third lane more over toward the shoulder, my wrecker. Q. Okay. Yours. A. Tow truck. Q. Tow truck. Now, was your -- now, if I -- without snow on the road -- I'm going to try and draw a picture in my mind of this road. You've got the three lanes, and then you've got this shoulder, and then, beyond that, you've got dirt; is that right? A. Grass. Q. Grass, you say? A. Yes. Q. Was your intention, when you stopped at that location -- was your intention to get out of the third lane and on -- completely onto

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the shoulder? A. No. Q. Your intention was -A. Because if you dropped -- if you drop off the shoulder, you'd be stuck. If you

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got out of the -- out of the edge of the road into the shoulder, you'd have been stuck. Q. The shoulder is paved, though, right? A. No. Q. So, if you went into the shoulder, you'd be stuck; is that what you're saying? A. Yep. Q. I'm sorry. Did you say yes? A. Yes. Q. Okay. So, going back to this picture in my mind, you've got the two main lanes, you've got this third lane, which is the exit lane, and then immediately after the exit lane, you have dirt? A. I would say maybe six inches or so from where -- past the edge of the third lane is dirt. Q. Okay. Not enough to -- not wide enough to park a car?

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A. No. Q. What color was the semi truck? A. Black, I believe. Q. And how about the back of the semi truck, the one that was impacted by the Budget

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truck? A. That was the trailer. Q. Oh, the trailer, yeah. I'm sorry. What color was the trailer? A. I believe it was silver -Q. Okay. A. -- I think. Q. The trailer itself or the very back of it? A. Well, the back where the doors are, I believe, was. Q. Okay. And the doors are on the very back of it, which was impacted by the Budget truck? A. Yes. Q. Okay. And do you know whether the trailer itself is white? A. Not at this time. I can't remember that. Q. Do you believe it was dangerous for

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you to stop there in the third lane, the exit lane of I-70, to stop -- essentially stop on the freeway to settle a tow bill? MR. CARAFELLI: Objection, form and foundation.

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A. I would say that we was safer there than down there where I pulled him out, where we had one lane of the interstate blocked. Q. (BY MR. ALLAHYARI) That was a more dangerous location? A. Right. When you're setting out in a lane of traffic, it's more dangerous than being on an off-ramp where the traffic's got both lanes to go through. Q. Wouldn't it have been reasonable for you to assume, when you were there -- stopped there with the Angel Express truck behind you, wouldn't it have been reasonable to assume that an oncoming vehicle could come into contact with that semi truck? MR. CARAFELLI: Objection, form and foundation. A. If we would have stopped out there where the man was stuck, part of the truck would probably been out in the lane of traffic, and

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that would have been a whole lot more dangerous than up there where we had the whole truck off the side to where we had the two inner lanes open. Q. (BY MR. ALLAHYARI) Okay. And I'm

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not trying to compare the two. I'm just saying, in regard to the location where the accident happened, couldn't you have assumed or shouldn't you have assumed that that -- that that was a possibility, that oncoming traffic could come and hit the semi truck at that location? MR. CARAFELLI: Objection, form and foundation. A. I didn't believe that somebody would come along and hit it, or I would not have stopped there. Q. (BY MR. ALLAHYARI) And why didn't you believe that somebody would come along and hit it? A. I believe we was off the highway far enough where nobody would have got to us. Q. Would warning devices -- do you believe that they would have assisted -- they would have helped prevent this accident? MR. CARAFELLI: Objection,

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speculation, form and foundation. A. I don't believe so. Q. (BY MR. ALLAHYARI) Why not? A. Because the Angel Express driver had all four lights blinking and all when he pulled

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off there to stop, and mine were blinking, too. I don't think nothing else would have helped. Q. What's your understanding as to how far you're required to place warning triangles at a location like you were where the accident happened? A. If we was alongside the highway, they would have to be behind the vehicle going to the edge of the road 50 feet, a hundred feet, and 200 feet behind the vehicle on a four-lane highway with . . . Q. Okay. And you mentioned a bunch of different feet, 50, a hundred, 200. Which one of those would it have been? A. It's all three. Q. Oh, I see. So the first warning triangle that the Budget truck driver, assuming he was looking, would have seen, would have been 200 feet from the Angel Express semi truck? A. If the Angel Express drivers would

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have put them out, yes. Q. Do you believe the accident would have happened had there been these orange triangles out for 200 feet? MR. CARAFELLI: Object.

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A. I don't know. Q. (BY MR. ALLAHYARI) Well, what is the purpose of these warning devices? A. To keep people from hitting the vehicle. Q. Because it gives -- does it give people advance notice of people that are stopped on the road? A. I would say probably. Q. Would you agree that Angel Express, the driver and/or the passenger, should have put warning devices out behind their vehicle prior to this accident happening? A. I would say no, because we wasn't there that long. Q. Okay. A. We hadn't been there but just very short few minutes. Q. Well, I got a question about that. Wouldn't you -- wouldn't it be reasonable to

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assume, if that -- that a -- another driver, an oncoming driver, might be coming along the road within the next few minutes? A. I would say we have a few minutes sitting alongside the road before you have to

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put the warning devices out. You don't just pull the truck up and jump out and run back there and put them out. It takes you just a very few minutes to get it done, and we was only there just a very few minutes before all this happened. We didn't have time. Q. But, if you're there to settle a tow bill, and the Angel Express driver's on the phone, presumably calling his company to ask them how they want to take care of it, wouldn't it be reasonable to assume that a -- or possible that an -- a car or a truck or somebody might be coming, oncoming? MR. CARAFELLI: Objection, form, foundation, speculation. A. He called to his company to find out how they were going to pay the bill, and I figured that we'd end up probably having to go to Rip Griffin's to get a comp check or so to pay it, because 90 percent of the drivers don't

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have enough cash to pay it, so I didn't figure we would be there but only probably three or four minutes, and we'd be on the way to Rip Griffin's. Q. (BY MR. ALLAHYARI) How far was

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that? A. 10 miles. Q. Is that the direction -- I guess it is the direction that the semi truck was going; is that right? A. And myself. Q. So it could have been just as easy for you to just keep going for 10 miles to Rip Griffin's? A. But then I had another call to go on. Q. Which was about two miles away, right? A. Right. So if he was going to go to Rip Griffin's, I could pull the semi truck out and go up and meet him out there. Q. Why'd you have to do that? A. I had to find out how his company was going to pay this first. If I don't find out how the company's going to pay it, the guy

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goes on, and I don't get paid. Q. Did the driver of the Angel Express vehicle or the passenger ever indicate they had enough money to pay you, or they didn't have enough, or they needed to call the company,

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or -A. The driver said he had to call the company. I didn't know if he had enough to pay it or how they -- he was going to do it. Q. I'm not familiar with that stretch of highway, of course, but you say that you had a -- another accident to attend to a couple miles down the road. If you keep going east, is -- did you call it Rip Griffin's, the first place you come to that you could pull off the road and there wouldn't be snow to get stuck? A. That's a truck stop. They clean the parking lot. Q. Who maintains that parking lot? A. Rip Griffin's. Q. Is that a name of a business? A. That is a truck stop, yes. Q. Okay. And by a truck stop, that's a privately owned business?

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A. I believe so. Q. Okay. And so is that the first place that you would come to where they kind of clean the snow off? A. I would say, yeah.

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Q. Okay. Everything before that -- so the -- for the next ten miles, they get to Rip Griffin's, other than pulling off kind of where you did, or going off an exit, there's no other place to pull over? A. Right. Q. Were there any other exits beyond this exit that you were at, this -- what is it, 348? A. Two. Q. There's two exits -A. There's two. Q. -- beyond that, beyond Rip Griffin's? A. Right. Q. And were those in any condition that you could have pulled off those exits? A. I didn't look to see. Q. Just based upon your knowledge of those exits, are they kind of a steep off-ramp

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or, I mean, what's your sense as to -A. You -Q. -- how easy it would be to pull off and then back on? A. You probably could. I need a break.

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Q. Say that one more time. A. You probably could. I need a break. MR. CARAFELLI: He needs another break. Q. (BY MR. ALLAHYARI) Okay. You want to make it five minutes? A. Yeah. MR. CARAFELLI: Yeah. Okay. MR. ALLAHYARI: I'll call you back in five minutes. MR. CARAFELLI: All right. MR. ALLAHYARI: Okay. Good-bye. (A break was taken.) MR. ALLAHYARI: Okay. Back on the -- back on the record. Q. (BY MR. ALLAHYARI) Mr. Rosler, did your tow vehicle have the required warning devices at the time of this accident? A. Yes. Q. And what were those?

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A. Reflectors, a fire extinguisher, and a broom and a shovel. Q. And those -- you keep those on your vehicle at all times; is that right? A. Yes.

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Q. Do you happen to know whether the Angel Express semi truck had that equipment? A. I could not answer that. I don't drive that truck. Q. Is it your understanding that it's unlawful for any person to stop, stand, or pa