“Driver who killed teen is suing dead boy’s family for $1 million”

by Walter Olson on April 28, 2014

Ontario: “The family of a teenage bicyclist who died after being hit from behind by an SUV is now being sued for more than $1 million by the woman who was behind the wheel.” The suit is in the nature of the counterclaim; the family has a suit going against the driver. [Fox News] According to the Ottawa Citizen:

A collision-reconstruction team from the South Simcoe Police Service investigated the crash; their 26-page report found that the “lack of visibility” of the cyclists “was the largest contributing factor,” and that on a dark overcast night, “the driver of the Kia did not see the cyclists on the roadway and was unable to make an evasive reaction.”

{ 8 comments }

1 Mannie 04.28.14 at 8:07 am

I hope she takes the stand. She’ll make a sympathetic witness. She will be lucky if the jury doesn’t vote for hanging. (Yes, I know it’s a civil trial.)

2 Boblipton 04.28.14 at 11:11 am

I just waiting for some lawyer here to say this is a perfectly ordinary tactic and the lawyer would be remiss if he failed to ciunter-sue and then wonder why anyone would be upset.

Bob

3 Ron Miller 04.28.14 at 2:39 pm

It is actually a very infrequently used tactic, at least in Maryland. My firm has tried a case like this once in the last 12 years. There was good reason for it too, there were facts that went both ways.

4 Jim Collins 04.28.14 at 4:17 pm

Isn’t the driver being sued by the boy’s family? The accident investigation stated that the lack of reflectors, dark clothing and bad weather were contributing factors. If they are sueing her, I have no problem with her sueing them.

5 wfjag 04.28.14 at 6:12 pm

@ Jim:
“The accident investigation stated that the lack of reflectors, dark clothing and bad weather were contributing factors. If they are sueing her, I have no problem with her sueing them.”

For what damages? One of the essential elements of a tort claim is damages caused by the negligence. All the things you list are perfectly fine as evidence of comparative negligence to reduce plaintiffs’ recovery. However, $1Million in damages on a theory of liability that I ran over and killed your son because I didn’t see him, is hard to imagine as a good faith theory of liability. Emotionally, it doesn’t sit well.

Maybe, as Ron Miller indicates, this is that exceptional case in which there are outliner facts which support liability on the part of the dead kid and/or his parents. Those are rare cases, but, if the facts justify the tort claim, are valid claims. However, the attorney who advises a client to rely on the “you sued me so I’ll sue you theory” borders on sanctionable conduct.

There are, also, tactical considerations. If the counter claim raises potential liability covered by liability insurance, then the insurer will have to fund the original plaintiffs/defendants in counter claim. A lot of the same facts, evidence and expert opinions both support defending the counter claim and prosecuting the original negligence claim. Appropriate experts may opine “Of course you should have seen him. You were diving distracted — cell phone, texting, eating, fiddling changing radio stations, etc.”; or, “You’re night blind.”; or “Your brakes weren’t up to standard.” To defend a $1Million claim, an insurer is likely to put more resources into a case than the plaintiffs’ lawyer acting alone could afford. And, when you go for depositions, there are 2 sets of lawyers who get a shot at your client — the original plaintiffs’ lawyer, and the defendant in counter-claim’s lawyer. While 1 lawyer might overlook something, 2 working together will not. Further, while the first lawyer is questioning your client, the second is watching, looking for those hints of body language that can indicate that your client is holding back or trying to cover some unfavorable facts. And, if you think that is tough in a deposition, wait till the 2 lawyers get to do a tag team in front of a jury.

This may be the exceptional case in which there are facts supporting a counter claim. However, the facts revealed by the news report don’t indicate that. Rather, the news report indicates that what plaintiffs’ counsel will be able to argue “Not only did she run over my clients’ kid, a good kid riding his bike home for dinner, but she’s increased their suffering by suing them for $1Million for that dead boy’s blood she’s smeared all over her car with her reckless driving.”

In every case, the lawyer should have a strategy — developed at the beginning. Every action, every motion, every argument should have as its object, pushing that strategy forward. Too often, however, lawyers assert claims or file motions merely because they are provided for in the Rules of Civil Procedure. Not only does this waste effort and run up costs, it also can result in trapping the client and prejudicing the client’s case. Filing this type of counter claim should have a lot more behind it than “The Rules of Civil Procedure provide for counter claims” and “I (the attorney) can meet the minimum standards to avoid being sanctioned.” Mom and Dad were grieving parents before. Now they want your client’s head on a pike. At a minimum, you’ve greatly increased the amount it will take to settle, and that’s never a good idea for someone who ran over and killed a kid on a bike.

6 MattS 04.28.14 at 11:33 pm

“For what damages?”

From what I gather, the guilt and emotional pain that comes from having killed someone.

7 Robert 04.30.14 at 2:01 am

Maybe not this case specifically, but I can certainly imagine a situation where a child, at night, without proper clothing, reflectors, lights, maybe on the wrong side of traffic and disobeying traffic laws, gets hit and killed, and the person who hit and killed him gets sued.

In such a case, if there were an aggressive lawsuit from the family of the deceased, it may not be too unreasonable to imagine a countersuit. Having killed someone is certainly psychologically damaging, and may require a lifetime of therapy, etc.

8 Ron Miller 05.02.14 at 12:19 pm

Robert, I don’t think many are arguing he is not entitled to bring the claim. It is a question of whether a person should or whether it is indecent to do so.

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