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STATEMENT OF FACTS We state the facts in the light most favorable to plaintiff Clark, the non-moving party, relying as well on undisputed facts relevant to this appeal.

A.

The Underlying Accident

On Saturday, June 3, 1995, just before 2 a.m., Clayton Clark lost control of a

1991 Honda Accord he was driving on Interstate 65 in Simpson County, Kentucky. NR 1:2(¶7), NR 47:Tab 8 at 25. The car hit the guardrail and rolled over several times as it tumbled down an embankment (NR 47:Tab 5 at 13), ejecting both the front seat passenger, Derrick Borders, and the back seat passenger, Rod Brogdon. NR 47:Tab 3 at 5. Unlike Borders, who was protected only by the automatic shoulder belt (id. at 6), Clark was also wearing his manual lap belt, which Clark had engaged prior to the accident. NR 47:Tab 4 at 128.1/ Clark could not remember whether his lap belt was in place after the accident (NR 46:3), but he was in a relatively normal driving position

when the car came to rest. NR 47:Tab 5 at 17, Tab 8 at 25.

The accident was caused by Jessie Froggett, whose pickup truck hit the Honda from behind and knocked it off the highway. NR 1; NR 47:Tab 5 at 12. After ensuring that the police were notified and obtaining a flashlight from a passerby, Froggett climbed down the embankment to assist Clark. NR 47:Tab 5 at 15-17. Although he testified that “it was pitch black that night,” Froggett was able, with the flashlight, to make his way to the Honda, where he was the first to arrive. Id. at 16-17. Illuminating Clark with the

1/

For front seat occupants, the 1991 Honda Accord has a motorized shoulder beltand a manual lap

belt.

3

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