Missing safety measures reason woman was killed in 2016 MSD truck collision, attorneys say

ASHEVILLE - A trial to determine whether the Metropolitan Sewerage District of Buncombe County was at fault in the death of a 20-year-old in 2016 is underway and weighing details of a crash in which the plaintiff’s attorneys claim the absence of safety measures played a significant role.

On the trial’s first day, Aug. 24, attorneys for the plaintiff called several witnesses including three people who were there the day of the Oct. 14, 2016, accident, the deputy chief toxicologist of North Carolina’s Office of the Chief Medical Examiner and the person in charge of safety at MSD when the accident happened, a man who claimed regulations were being followed.

Plaintiff’s attorneys — Katie Clary and Amanda Mingo of Charlotte-based Rawls, Scheer, Clary, & Mingo — built a large portion of their case around exactly why they believed he was wrong.

Mingo told the jury the case would stand on the “big difference between seeing something and understanding what’s going on.” The legal team would later interrogate MSD leaderships’ knowledge and management of safety regulations.

Previous coverage: Buncombe County sewage district sued over death of woman killed on Smokey Park Highway

From 2016: Woman dies in accident on Smokey Park Highway

Tina Nowak is the sole plaintiff and the mother of Christina Michaela Nowak, who died Oct. 14, 2016, when her car hit the back of an MSD flushing truck that wasn’t moving and, according to testimony, didn’t have safety cones at its rear. Tina Nowak filed her complaint in 2017, originally naming two men who were on the flushing truck crew that day. Those names are now removed from the complaint, according to Mingo, making MSD the sole defendant.

Witnesses describe accident

After attorneys’ opening statements, Nowak’s family and a 13-person jury — 10 men and three women — heard testimony from the witnesses who were there on the day of the accident.

They confirmed some of the main accusations that there were no safety cones up at all, much less out hundreds of feet behind the flushing truck, as attorneys claimed should have been the case.

Christina Nowak — referred to by her middle name during the trial — struck the MSD truck, which was parked in the right-hand eastbound lane of the five-lane U.S. 19/23, also known as Smokey Park Highway, just east of its intersection with Montgomery Street. The truck was “flushing” out sewer systems by removing manhole covers in the road, according to testimony, something MSD crews do on a regular basis.

Immediately after the accident, several people took action, including the three who testified Aug. 24.

One of them was Dewayne Stephens, owner of Wheel City Motors. On the day of the accident he was close enough to hear a loud “bang” and rush to the scene of the accident.

But Stephens wasn’t just a bystander. He knew the Nowak family and had in fact sold the car Michaela Nowak was driving to her mother, he testified.

Stephens said he immediately recognized the vehicle and tried to call Tina Nowak, who was in the hospital at the time, receiving chemotherapy treatment.

When Tina Nowak didn’t pick up, Stephens testified he called Brittany Gordon, Michaela Nowak’s older sister. Stephens said soon after the accident he knew the 20-year-old woman had died.

He drove Gordon to Mission Hospital where she met with Tina Nowak and learned Michaela Nowak died in the accident. Tina Nowak fainted in her arms, Gordon said.

Other people in the area during the accident also testified, including Asheville Chevrolet Manager Bobby Roussel.

Roussel testified he heard something like an explosion, rushed out and tried to help. He and his son were able to break the window of Michaela Nowak’s vehicle, a 2013 Toyota SUV. Roussel tried to find Michaela’s pulse, he said, but was unable. First responders arrived soon afterward, he said.

Another man, Brian Hudgins, testified he was driving in front of Nowak that day, and had to swerve to miss the parked truck.

Hudgins testified he heard a loud noise after he drove around the truck. He then parked in a restaurant’s parking lot nearby, called 911 and later tried to tell police what he had seen.

Hudgins, Roussel and Stephens each testified they did not see cones set up behind the parked truck. Hudgins also said he tried repeatedly to contact Asheville Police Department officers to describe his experience. He was not able to speak to anyone on the scene and later called APD. He was able to speak to an officer briefly, Hudgins testified, but said no one took down his story after that.

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MSD safety under scrutiny

Clary with witness Sandra Bishop-Freeman, deputy chief toxicologist of the N.C. Office of the Chief Medical Examiner, dissected a toxicology report for the incident, which did not find drugs or alcohol in Nowak’s system at the time of the accident, ostensibly proving she was not impaired when she hit the MSD truck.

But Clary also questioned former MSD Environmental, Health & Safety Manager Dan Waugh, who retired effective in March.

Clary tried to establish that Waugh was in charge of all safety management at MSD during his time in that position, from 2012-2022.

Waugh noted the men who had parked the flushing truck that day did not report directly to him, and Waugh avoided taking direct responsibility for safety measures that were or were not taken Oct. 14 on Smokey Park Highway.

Clary pressed Waugh on his own traffic safety training and whether he had passed along knowledge about traffic safety standards to his subordinates. He said his job was mainly to discover and correct deficiencies in work zones large and small.

On the day of the accident, Waugh said he showed up to the site and took pictures. He also said he talked to the two-man crew, but when pushed by Clary, was not sure if those conversations took place.

He said he relied on regulations from the The Manual on Uniform Traffic Control Devices for Streets and Highways — a federal guidebook on traffic control standards — to ascertain whether the crew was following proper procedures.

Following the accident, he concluded the crew had not deviated from safety standards, according to the MUTCD regulations for short-term work.

Clary challenged that, arguing the MUTCD and a guidebook the MSD uses for traffic safety procedures required much more to close a lane than the crew did Oct. 14.

Before the first day of the trial ended, the plaintiff’s attorneys pressed toward a notion that not only should there have been cones, there should have been up to several of them extended hundreds of feet behind the parked truck in what Waugh referred as a “taper.”

Without these measures, Nowak’s counsel argues in the complaint, MSD is culpable in Michaela Nowak’s fate: They are alleging negligence on MSD’s part, including negligent retention, training and supervision of employees, and willful and wanton conduct in the 20-year-old’s death.

Moreover, they are alleging MSD has not changed for the better since 2016.

The trial is set to continue Aug. 26.

Andrew Jones is an investigative reporter for the Asheville Citizen Times, part of the USA TODAY Network. Reach him at @arjonesreports on Facebook and Twitter, 828-226-6203 or arjones@citizentimes.com. Please help support this type of journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: MSD truck collision death: Lack of safety cones key, attorneys say