Judge says he finds no evidence of reckless driving in case where concrete truck tipped over onto a car, killing 2

Judge says he finds no evidence of reckless driving in case where concrete truck tipped over onto a car, killing 2
Austin M. Holloway

A judge said Thursday he could find no evidence of reckless driving on the part of the driver of a loaded concrete truck that tipped over last year in Sarpy County, killing two people in a car.

Austin M. Holloway, 21, of Fremont, had been charged with two counts of felony motor vehicle homicide due to reckless driving. The crash occurred just after noon Oct. 25.

The Sarpy County Attorney’s Office now must decide whether to file other charges.

Police said Holloway, who was driving east on Giles Road, made a sharp right turn to head onto 120th Street. The truck tipped and landed on a northbound car that was stopped at a traffic light.

Killed were Michael Dearden, who was driving a 2000 Chrysler Sebring, and passenger Phillip Hertel, both 23. They had been working on a painting job and were headed to lunch. Both graduated from Plattsmouth High School.

Sarpy County Judge Todd J. Hutton said Thursday that GPS from the cement truck showed that earlier on the day of the crash, Holloway had negotiated the same turn without any problems. The question, he said, is whether Holloway was driving recklessly by going too fast before the crash.

The findings of investigators for the prosecution and the defense were “broadly inconsistent,” the judge said. “Earlier in the day, it appears the defendant had navigated the same turn at 120th and Giles Road without incident, and there is no evidence the truck had at any point been traveling at or in excess of the posted speed limit.”

There is evidence, the judge said, that the truck had a full load of cement and was overweight when the crash occurred. The truck belonged to Consolidated Concrete.

“The mixture of cement and water, moving within the rotating drum, will alter its center of gravity, making it more susceptible to lean during turns,” the judge said. “Thus demanding the highest degree of skills in order to operate safely.

“Whether the particular speed the defendant was driving the cement truck when negotiating the right-hand turn was a conscious, unreasonably dangerous decision, in which he was intentionally indifferent and showed wanton disregard for the safety of others, remains unanswered.”

Martin Dearden, Michael Dearden’s father, said he was disappointed with the judge’s decision. Dearden glowered in Holloway’s direction as the young man walked down a courthouse hall with his family.

“That skinny little guy killed my son and another kid, and for now, he gets away with it,” Dearden said. “I don’t like that. I go to Mike’s grave pretty much every day. That’s also where I spend every holiday.”

Defense attorney Sean Conway said even with Thursday’s favorable ruling, “there are no winners,” because two men lost there lives.

“We’ve been saying since the beginning that we don’t think our client should have been charged with this felony,” Conway said. “The judge today confirmed what we believe to be true.”

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