Fatal accident spawns suit

[JamesVincent]

But not the one you would think.

http://www.washingtontimes.com/news/201 ... o.facebook

A Canadian woman who accidentally killed a teen and injured two others after running them over with her SUV is now suing the dead boy’s family for emotional distress.

Yes, that's right, the woman who killed the young man and injured two others is suing the parents of the deceased.

[Judge Roy Bean]

Wow ... I would have hoped the news reporter would have at least done a more thorough job of the background story and include the results of the police investigation into the accident and if any charges were brought.

Yes, a young person can be killed while doing something stupid and reckless and if that took place as a result of the parents' negligence ... well, that's just one of the things we don't know.

I don't know how Canadian law applies to parental negligence/culpability. It varies from state-to-state here.

[Arthur Rubin]

Yes, that's right, the woman who killed the young man and injured two others is suing the parents of the deceased.

It actually doesn't strike me as absurd, if, perhaps, the woman claims that the children intentionally or negligently rode in front of her. If it was through the children's incompetence, then the parents would be responsible. I admit, I have never heard of a person suing a dead child before, but suing a dead adult (or, to be precise, the adult's estate) is not completely absurd.

[Famspear]

It actually doesn't strike me as absurd, if, perhaps, the woman claims that the children intentionally or negligently rode in front of her. If it was through the children's incompetence, then the parents would be responsible.....

Originally, at common law, parents were not vicariously liable for the conduct of their children.

However, I understand that many states have passed statutes making parents so liable, but you would have to check the state statute. If I recall correctly, some states limit the parent's liability to situations where the child acted willfully or wantonly, so that ordinary negligence of the child might not be enough to impose vicarious liability on the parent.

I don't deal with personal injury law, so I haven't studied this since law school -- a long time ago.

[Famspear]

As an example, here is the Texas statute, Chapter 41 of the Texas Family Code:

CHAPTER 41. LIABILITY OF PARENTS FOR CONDUCT OF CHILD

Sec. 41.001. LIABILITY. A parent or other person who has the duty of control and reasonable discipline of a child is liable for any property damage proximately caused by:

(1) the negligent conduct of the child if the conduct is reasonably attributable to the negligent failure of the parent or other person to exercise that duty; or

(2) the wilful and malicious conduct of a child who is at least 10 years of age but under 18 years of age.

Sec. 41.002. LIMIT OF DAMAGES. Recovery for damage caused by wilful and malicious conduct is limited to actual damages, not to exceed $25,000 per occurrence, plus court costs and reasonable attorney's fees.

Sec. 41.0025. LIABILITY FOR PROPERTY DAMAGE TO AN INN OR HOTEL. (a) Notwithstanding Section 41.002, recovery of damages by an inn or hotel for wilful and malicious conduct is limited to actual damages, not to exceed $25,000 per occurrence, plus court costs and reasonable attorney's fees.

(b) In this section "occurrence" means one incident on a single day in one hotel room. The term does not include incidents in separate rooms or incidents that occur on different days.

Sec. 41.003. VENUE. A suit as provided by this chapter may be filed in the county in which the conduct of the child occurred or in the county in which the defendant resides.

(emphasis added).

This statute says nothing about personal injury in general or emotional distress in particular. Even if the child's conduct is wilful and malicious, the statute appears to cover only property damage -- not personal injury.

So, I wonder whether the common law rule would apply in the case of a child's intentional tort causing personal injury (e.g., punching some other kid in the nose). I wonder whether there is any Texas case law that imposes vicarious liability in the case of intentional tort (e.g., completely apart from this statute).

[fortinbras]

The lawyer bringing this lawsuit against the dead boy's family is Michael Ellis, who may eventually have a fun afternoon with a committee of the local Law Society.

I would expect that by now the Majewski family has heard from a LOT of lawyers offering their services for free.

[Judge Roy Bean]

The lawyer bringing this lawsuit against the dead boy's family is Michael Ellis, who may eventually have a fun afternoon with a committee of the local Law Society.

I would expect that by now the Majewski family has heard from a LOT of lawyers offering their services for free.

Again, not knowing the facts behind the incident (and especially not knowing the Canadian view of such things), I think it's premature to make any assumptions about the attorney who represents the plaintiff - mostly because the article is so lacking in insight.

This is the frustrating thing with crime "reporting" in today's media environment. Immediacy and sensation trumps the investment in background research.

We, and the parties involved are left to make some kind of judgement based on the writing of the allegedly-qualified "reporter."

For all we know the victim on the bike was racing his friends in the wrong direction in the middle of a winding road.

[Pottapaug1938]

I still say that it takes a special breed of chutzpah to sue the mother of a boy that you killed with your car.

[JamesVincent]

I still say that it takes a special breed of chutzpah to sue the mother of a boy that you killed with your car.

About the same as suing someone who saved your life..... but took too long doing so.

[rogfulton]

I still say that it takes a special breed of chutzpah to sue the mother of a boy that you killed with your car.

About the same as suing someone who saved your life..... but took too long doing so.

IDK James, I think suing the lifesaver for any reason merits a special circle in the Inferno.

[notorial dissent]

On Oct. 28, 2012 at about 1:30am Brandon Majewski and two friends Richard McLean and Jake Roberts, were struck by a black Kia Sorento driven by Sharlene Simon. They had decided to ride to the local Starbucks late that Sat night and were on their way home when they were struck from behind. At the time they were riding abreast on a two lane paved rural road outside Innisfil - South Simcoe, Ontario. Brandon died at the scene, one of the other boys was taken to a local hospital, and the other was for the most part unharmed.

From the accident report it appears the boys were wearing dark clothing, and had what were referred to as minimal reflectors on their bikes. It was also reported that Sharlene Simon was going over the speed limit at the time.

The police and prosecutor declined to file charges at the time of the accident, but there has been ongoing and mounting complaint about the quality and alleged bias of the accident investigation and subsequent review, and at this point an outside review has been called for of the matter.

National Post
Barie Examiner

Without knowing the exact road conditions of the area in question, it is hard to second guess what might or might not have happened. My question is are Canadian right of way laws similar to the US in that pedestrians and bicyclists pretty much have the right of way?

To me it doesn't sound like the driver has anything resembling a valid course of action, and a lot of it comes out sounding "like it was everyone's fault but mine". I do feel sorry for her that she will have to carry that memory of what was most likely a really unfortunate accident all the rest of her days, but her actions are quite frankly reprehensible, as are those of her attorney. Although, a new and unbiased review of the accident could change that for her, and right now the sympathy is not on her side.

[Burnaby49]

Since this is a potential Canadian lawsuit I asked a Canadian lawyer I know for his opinion based on the little information currently available. His response was;

It's a really weak basis for a case. Not impossible, mind you, just very, very weak. You'ld have to establish that the parents were negligent in teaching their children road safety - that in itself a tough prospect - then go further to say that it was the failure to teach that caused the accident - so no child wildness was a basis - and last you would have to successfully argue that it was foreseeable that the parents' failure to teach road safety would foreseeably lead to this scenario - again, a long shot.


It's possible to argue parental negligence for a child's action, but I think that's limited really to where the parent controls the child in an effective sense. Let's say that a very young child was taught by their parent to act in a dangerous or offensive manner - and the child's actions were literally controlled in that sense. Ok - parental negligence then is possible. But really, here we have a 'new intervening act' (or more properly, 'actor') - the bike-riding kids. So I'd say it would be tossed, no issues at all.

[JamesVincent]

Unless Canadian law is very different bicycles on the road are required to operate on the same basis as a vehicle. If they were indeed in the proper lane and left traveling correctly then they had a right to be there. I know, at least in Md., if you struck someone from behind you are assumed at fault unless you can prove otherwise. Which is pretty close to impossible.

[JamesVincent]

I still say that it takes a special breed of chutzpah to sue the mother of a boy that you killed with your car.

About the same as suing someone who saved your life..... but took too long doing so.

IDK James, I think suing the lifesaver for any reason merits a special circle in the Inferno.

No real argument there.

[Judge Roy Bean]

...
You'ld have to establish that the parents were negligent in teaching their children road safety - that in itself a tough prospect - then go further to say that it was the failure to teach that caused the accident - so no child wildness was a basis - and last you would have to successfully argue that it was foreseeable that the parents' failure to teach road safety would foreseeably lead to this scenario - again, a long shot.

Actually, no. It's not the teaching of "road safety" that will probably be presented to a jury. One ultimately has to address the question - what was a 16 year-old doing out riding around with friends on a two-lane highway at 1:30am?

[Arthur Rubin]

From the accident report it appears the boys were wearing dark clothing, and had what were referred to as minimal reflectors on their bikes. It was also reported that Sharlene Simon was going over the speed limit at the time.

One could make a good case that, if the driver couldn't have seen the children even if she had been driving the speed limit, there should be no potential case against her.

And that the children riding without reflectors might actually rise to the level of criminal negligence.

But I'm not a lawyer.

If she were only claiming damage to the car, one might speculate that she was required to bring the case to collect on her auto insurance collision coverage. For that matter, I don't know how auto insurance interacts with health care in Canada; it seems possible she has real monetary damages associated with her emotional distress.

[notorial dissent]

A couple of points, was a rural road, was narrow and windy, (although that is a definition issue in my mind)bad conditions at best of times, late at night, weather was bad, more bad conditions and visibility, driver was going TOO FAST for road and then conditions and was over the speed limit on top of it, which constitutes careless driving. Roads like that also happen to have large cranky animals crossing them at the least convenient moment so not paying attention to what is going on around you is also careless driving. The driver was driving carelessly, she was not paying attention to the then existing conditions, and was going too fast for both conditions and the road or she would not have been driving the way she was. The fact that her husband was a local policeman and was there shortly after the accident most likely prevented her from getting the ticket she deserved, and this latest action will most likely result in her being charged, probably with more severe charges, and him losing his job, once the outside investigation is over in order for the local department to save some face in light of the local uproar over this. Having lived around rural environments most of my life, I am quite familiar with this sort of local LEO bs'ery, and that is exactly what it looks and smells like.

[ashlynne39]

...
You'ld have to establish that the parents were negligent in teaching their children road safety - that in itself a tough prospect - then go further to say that it was the failure to teach that caused the accident - so no child wildness was a basis - and last you would have to successfully argue that it was foreseeable that the parents' failure to teach road safety would foreseeably lead to this scenario - again, a long shot.

Actually, no. It's not the teaching of "road safety" that will probably be presented to a jury. One ultimately has to address the question - what was a 16 year-old doing out riding around with friends on a two-lane highway at 1:30am?

I agree and think that is part of the parental negligence issue. Another example of parental negligence could be failing to adequately outfit the bikes with bright reflectors and lights and knowing that the boys were going out riding on a dark road at 1:30 a.m., not making sure that they were wearing appropriate clothing - ie: not wearing black but wearing bright colors or clothing and shoes with reflective stripes.

I remember reading several articles about this story when it first came out and there was some indication in the comments I read that there was more to this story than meets the eye and that it actually might have been the boys' fault - maybe not 100% but at least partially. Too, I wonder if the woman filed suit or if her insurance company filed suit on her behalf. Often insurance companies file lawsuits after accidents even if the individual isn't interested in doing so. I don't remember from what I've read if this is the case or if any of the articles even discussed it.

[Jeffrey]

http://www.opposingviews.com/i/society/ ... nal-trauma
http://www.torontosun.com/2015/01/10/te ... ng-him-too

She is asking for about $1.35 million in damages. Her husband has also filed a suit.

He said he was informed that Simon reported to police that she thought she had struck a deer.

“Well, I’ve never seen a deer riding a bicycle with reflectors and a bright yellow jacket on,” Terry said. “There is no reason she didn’t see them – you can see a mouse run across that straight stretch of road at night ... I would like to know why she wasn’t charged and why she and her husband were allowed to leave the scene.”

[Burnaby49]

Already a discussion on this topic;

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