Woman sues teen she hit and killed

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LinasK said:
I completely agree with this whole post!!! I've also been noticing a disturbing trend lately here on more than one thread of blaming the victim rather than the driver.
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But why should the driver be blamed if they are found to be not at fault? The accident reconstruction team determined that the major contributing factor in this accident was the poor visibility of the cyclists - not blaming the boys but that's what appears to have caused this tragedy.

The driver was not found to be at fault in this situation. And not only does the driver have to live with the fact they accidently killed a young man but that they are also being sued for it.
 
Wonder why they were going to that particular Tim Hortons
as there are 2 that are closer and on reasonably well lit roadway.
 
LinasK said:
It was proven- I think they either contacted her doctors, found her pill bottles, or got her medical records, but they know she was abusing prescription painkillers. I'd have to look up the case to tell you what drugs specifically. IIRC Vicodin was one of them.
From this article: Barreto insisted that she hadn't been drinking the day of the crash. But police said she admitted to taking at least 10 painkillers and muscle relaxants. http://www.sfgate.com/bayarea/artic...-tragedy-relying-on-future-2718103.php#page-3
And this:
Equally vexing to Pack was the matter of the health care system’s role in the accident. Through the police investigation, he came to find out that Barreto was stoned on prescription drugs chased by vodka. She told investigators she had fallen asleep at the wheel.
Police determined that she had been working the health care system for several years, scoring thousands of pills, all through Kaiser doctors. In the two weeks before the accident, she had “doctor shopped” half a dozen Kaiser physicians in the area to score 340 pain killers and half again as many muscle relaxers. She took them all before the accident. http://www.38istoolate.com/stories/troy-pack/
This one has more detail: After locating Barreto, investigators discovered she'd been downing vodka and had taken more than a dozen painkillers before the accident. She'd visited multiple doctors in the same Walnut Creek Hospital to get multiple prescriptions for Vicodin and Flexeril, a muscle relaxant.
Outraged by how freely doctors had prescribed the narcotics, Pack founded the Troy and Alana Pack Foundation to work with politicians, police and advocacy groups for tougher public safety legislation, began anti-drunk driving efforts in schools, and fought district attorneys to change the charges against Barreto from vehicular manslaughter to second-degree murder.
Jim Doliber, whose children Hunter and McKenna survived the accident, said he's constantly amazed by Pack's patience, selflessness and resolve.
"I would get angry, but Bob would never get angry," Doliber said. "He focused on what he could do ... He'd just say, 'Well that door is closed, I'll find another.'"
In 2005, a jury convicted Barreto of murder, and the former nanny was sentenced to 30 years to life.http://www.mercurynews.com/breaking...ter-death-his-children-danville-man-tenacious
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Im a litte confused. Are these two different cases? If so, how does the outcome of that other case prove fault in this one? Different facts, different people, etc. I don't see the logic of saying, "Well I know about a person who committed a crime that is similar to what this other person is being accused of (not by the police but via a lawsuit), so that means the other person must be guilty."
 
LadyL said:
really? who doesn't?

I can't imagine not filing a countersuit if someone is suing me for almost a million dollars and my future is on the line

I guess if it's a relatively minor civil suit but don't insurance co's always file countersuits?
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Countersuits are not obligatory. You have to have actual standing to sue, regardless. Many people simply defend against a suit and do not counter sue.

In this case, I understand why she did it and it does appear she may have legal grounds to sue, but it is in poor taste. The child died. It doesn't matter if they made a mistake, IMO, when it comes to who is at fault and thus whether she has a claim because she is alive and they are dead so they've already paid the ultimate price.

LinasK said:
I completely agree with this whole post!!! I've also been noticing a disturbing trend lately here on more than one thread of blaming the victim rather than the driver.
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If the victim of an accident is at fault due to their own behavior, then it is proper not to blame the driver. I don't understand the logic here. I disagree right his woman suing. What more can these kids give? But just because she was the driver and survived, does not mean she's at fault.

Sometimes, the driver is at fault. Sometimes it's the cyclist who is at fault. For example, do we blame the driver when a child shoots out into the street from between two cars, into the path of the driver?

Sometimes both driver and cyclist are at fault. Trying to determine what happened and/or determining ultimately that the person who does was at fault is not evidence of a disturbing trend. Just different opinions.
 
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It's been a long time since I had driver's ed, but we were taught that if you are driving a car and you hit the car in front of you, it's your fault. If you can see it, you shouldn't hit it. Why would that not be the case here?
 
Morag said:
It's been a long time since I had driver's ed, but we were taught that if you are driving a car and you hit the car in front of you, it's your fault. If you can see it, you shouldn't hit it. Why would that not be the case here?
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Because a car has tail lights. Apparently, the big issue here was that she couldn't see the kids until it was too late. If a person was driving without taillights in the dark and got rear ended, the person who hit them would not be liable:
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.” The report says police consulted with a local Crown prosecutor, who told them there was “absolutely no reasonable prospect of conviction and that no charges should be laid.” http://fullcomment.nationalpost.com...-sued-by-motorist-for-her-pain-and-suffering/
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tlcya said:
the suit is to decide if the driver is at fault, the counter to decide if the kids were also at fault. No one has been arrested charged or convicted of anything. In these civil suits, no one has been determined to be at fault as yet.

Thank you for the snips about the testing on scene per regulation guys. So still wishing there was no suits but seeing liability on both sides of the case here.

Even without texting or intoxication, the lady admitted speeding (slightly) which would give her even less reaction time, so the speeding must be considered a contributing factor because it further impeded her time to respond to the cyclists.



and then the boys, biking down the middle of the roadway without any reflective gear, and not being on the lookout for headlights of vehicles in order to move over to the side or make sure they saw the vehicle and the vehicle saw them?

:fence:
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still fence but wanted to add for clarity on my own reasoning behind why I am :fence:

Based on the re-construction, and depending on WHO paid for that analysis - state or driver - and when, Right now I feel like if I am operating under the correct assumptions as follows:

Driver was field tested and no need for further testing (ie. blood testing) was determined needed based on that and general behavior.

Cyclists were not wearing reflective gear and cycles not equipped with any reflective or illuminating gear, stickers, equipment etc.

Driver was admittedly driving slightly above the speed limit (not quite to the limit most of us would anticipate being pulled over alone for but admittedly above)

At 1:30 am in the morning, the darkest hours

Here is what troubles me. The HuffPost is reporting the following:

Majewski's family is countersuing the driver for $900,000. Derek Majewski claims Simon was speeding, under the influence or texting at the time of the accident.

None of the claims in either lawsuit have been proved.
http://www.huffingtonpost.com/2014/04/27/sharlene-simon-brandon-majewski_n_5224094.html

A great deal of how my thougths, feelings, and theories on this case DO depend on who filed suit, when and under what grounds.

AGAIN! I am trying very hard to stay un emotional about these CIVIL suits. but a great deal does depend on who filed what when.

From the girl who is NOT a lawyer or paralegal and who does not have experience one in the criminal field outside trial and case watching here and in MSM. That said, I have seen civil litigation in my real life experience via working in law offices. There is quite a bit of maneuvering and strategy involved. It is about money and damages and who can be assessed what percentage of contributing to the overall damages suffered by each party in civil matters.

It is a different animal.

In criminal litigation peoples lives and futures hang in the balance. Civil sometimes that is the case but more often than not money and insurance companies and available settlement policy limits risk is involved.
 
Valleyboy said:
Wonder why they were going to that particular Tim Hortons
as there are 2 that are closer and on reasonably well lit roadway.
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One story said they were going to Tim Hortons and another said they were going for hot dogs. I looked up Hortons and it's a donut/coffee place, does it also serve hot dogs?
 
SophieRose said:
One story said they were going to Tim Hortons and another said they were going for hot dogs. I looked up Hortons and it's a donut/coffee place, does it also serve hot dogs?
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Tims tried selling hotdogs and hamburgers back in the mid 70s but it was a losing proposition.

The only other establishment near there is a 24 hour Gas and convenience store but there are several of them closer to the victims home.

It was also raining that night
 
Being in the legal business I read a lot of cases like this. One case I will never forget is a guy burglarized a home got hurt sued and won. So very little shocks me anymore. I just hope the judge rules her case frivolous and she can not continue to put this already traumatized family through more than what they are already suffering through. She's going to compare her pain to theirs? I know she must be traumatized hitting a young boy on a bicycle, but IMO she suffered no where near the damages she is asking for. She needs to rethink her morals. This families boy is dead they will never see him again, but she can get treatment and with time handle this terrible accident.
 
I live in a rural town and I have ridden down many roads like this late at night. I turn on my high beams and have spotted everything from rabbits to deer getting ready to cross or crossing.I have even seen people walking in dark clothes. When I see something moving I slow down. She should have noticed three boys on bicycles imo. Wonder if she had her headlights on? I never take my eyes off the road when it's dark like that because I'm so afraid to hit an animal, I would die if I hit and killed someone.
 
In Austin, we call the young men and boys who ride their bikes at night wearing dark clothing and having little to no reflectors on their bikes, ninja riders. While it may or may not be illegal, it is certainly stupid.

Anyone riding a bicycle day or night should know cyclists are invisible or almost invisible to people driving cars, some of whom are texting, talking, eating, applying make-up or otherwise operating on automatic pilot--said facetiously. The smartest cyclists wear neon green or orange or other very bright colors, day or night, in an effort to make themselves more conspicuous because they know their lives may depend on it. Sadly, day or night, even that doesn't always make a difference.

There are plenty of car and truck drivers who resent cyclists being on the same roads despite signs being posted reading, Share the Road. A cyclist should never presume to be seen.

I couldn't begin to say who was at fault in this tragic accident or by how many degrees each was negligible. I'll leave that to the courts to decide.
 
I think there is a lot more to this story than the one sided reporting on the driver's countersuit.

Alcona is a small community. There is only one high school which all of the boys attended. In small communities, rumours and gossip abound. The family of the deceased young man is hurt, angry, shellshocked at what has happened to their family as a result of this tragedy. And their losses are great to be sure. Two sons lost. Just horrific to think about. They need someone to blame to make sense of all of this for themselves IMO. They want compensation for their huge loss. And in a no fault situation there just is no compensation.

So they, and likely others that support them, have been perpetuating rumours in that community that the woman was drunk, texting, speeding etc. That she was at fault. That because her husband is an LE officer, albeit in a totally different jurisdiction, the entire investigation and the LE who arrived at the scene are corrupt and that she was not held accountable because of some unwritten code between police officers. They want the investigation reviewed by a different LE agency and it appears as though they are going to get that wish. I don't think the outcome will be any different but I hope for their sake that at least that independent inquiry will help them to move on from this.

Meanwhile, the woman who had the terrible misfortune of coming upon the three young men riding in the middle of the road in the middle of the night also lives in that community. She was cleared of any wrong doing and has probably spent the last year and a half reliving that nightmare and trying to move past her horrific experience as well. Hard to do when the family of the person you killed is spreading malicious rumours about you and your husband. And she likely will never truly "get over it". She will relive it over and over again most likely for the rest of her life. She would definitely be suffering from PTSD from this and probably always will. People who support her have probably been trying to help her past this by reiterating to her that it wasn't her fault, there was nothing she could do. It was a horrific accident that she could not have prevented. But again, there are those rumours and finger pointing and eventually a lawsuit to keep telling her that it was her fault and that she should pay for what she did.

Just by looking at the picture of the accident scene you can see that slight hill and then dip in the road where the boys were likely riding, not against the traffic to be able to see oncoming traffic but most likely with it so that they were expecting any cars who came upon them to see them with their headlights from enough distance away to either go around them or to slow down so that they could move to the shoulder to let the car pass. But this is not possible on a hilly narrow road like that if you find yourself just on the other side of a hill when that car is approaching. So that as soon as the woman's vehicle drove over the crest of that small hill they were right there. In the middle of the road. With very little time to think or react to what it was she was seeing and what to do about it. And with the boys having very little time to react as well. Without reflectors or any other means of seeing those riders from a long distance back, especially on a dark and overcast night, no one would have known what they were going to encounter when they came over that small hill. And by the same token, the boys who were riding would not have seen the headlights of her vehicle, lighting them up from behind, until the very last minute as well. Time of night means nothing in this situation. It could have happened just as easily at 10pm. I'm assuming there may have been other drivers who encountered the boys either on their way to or returning from wherever it was they went that night. Drivers who had some distance to see that there was something in the road ahead of them and cars whose headlights may have prompted the boys to move off the road when seeing them approaching. And I have no doubt the same situation would have occurred in this instance if not for the terrible timing of where they were on the other side of that small hill.

If the LE who responded to the accident scene followed all the correct procedures, and it appears that they believe that they did, then there really is no one to blame. It was a tragic freak accident and at least two families in the community have been forever altered and traumatized by it. For one to be pointing the finger at the other to lay blame by filling up the community with slanderous rumours about drunk driving (a breathalizer given at the scene registered zero alcohol), phoning and texting while driving (against the law in this province and easy to dispute with phone records), speeding (the woman has admitted to possibly being within 10km over, not exactly high speed and something she would not have admitted to had she been drinking and felt at fault) , her police officer husband and the responding officers from a completely different jurisdiction than where he works, being corrupt and likely covering up something due to them being "friends". Rumours that are affecting not just the woman involved and her husband, but also likely the police officers who responded to the scene. So filing a lawsuit based on all these claims, with apparently little to no evidence to back them up, against the driver just seems wrong and mean spirited to me. Now if this new inquiry does turn up a completely corrupt investigation, that the woman was impaired, that she could barely see the road let alone anything that may have been in it, that the hill had no bearing on anything, then I may change my opinion on all of this. Right now I see a tragic accident with no one at fault and hopefully some big lessons learned by the other teenagers in the community about riding their bikes on these dangerous rural roads.

Obviously there is no love lost between these families now. Which is a shame. Because they should have been able to help each other in this tragedy. Instead we've got accusations and lawsuits and the woman who has to live with this scene replaying over and over in her mind is now being vilified once again in the press for filing a countersuit, probably out of anger and frustration more so than ever expecting or wanting any compensation for what she has and will continue to go through as long as she remains in that community.

MOO
 
legalmania said:
I live in a rural town and I have ridden down many roads like this late at night. I turn on my high beams and have spotted everything from rabbits to deer getting ready to cross or crossing.I have even seen people walking in dark clothes. When I see something moving I slow down. She should have noticed three boys on bicycles imo. Wonder if she had her headlights on? I never take my eyes off the road when it's dark like that because I'm so afraid to hit an animal, I would die if I hit and killed someone.
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I have driven to our family cottage at night, the roads are long, winding and go up and down..I always have my HIGH beams on unless another car is approaching and then I do what we are supposed to do, I lower them until the vehicle passes..I agree I can see a lot..the high beams illuminate so much

I question if she had her HIGH Beams on and if she was driving faster than 90km/h that she said she was doing.

She is the only one who can tell the Police if she had her high beams on, oh wait,,perhaps her husband as well....

The crime scene techs would be the ones who could determine the speed at which she was travelling by the skids marks Right?

Went to check the distance at which low and high beam illuminate the roadway ahead
Low Beam 100 to 150 feet
High Beam 350 to 400 feet
 
http://www.torontosun.com/2014/04/3...ing-teens-sued-to-protect-herself-lawyer-says

Simon and her husband, who followed in a separate vehicle, had just left Dave and Busters, a restaurant and games bar. Police said no alcohol was suspected and no charges were laid.

Ellis said his client suffers from post traumatic stress and is unable to work. Soon after the tragedy, the exhausting routine of insurance claims began. When Simon learned she was facing a $900,000 claim from Brandon’s family and a $1.4-million claim by the other victim, she hired a private lawyer and launched a separate action against all three boys, their families and the county.
 
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