Driver sues cyclist *she killed* for $1.35 million in damages

Toronto Sun

- Still in the throes of agony from losing their son in a vehicle crash, the parents of young Brandon Majewski are now reeling after they learned the woman who struck and killed him is suing their dead child.

...

Brandon was struck from behind by an SUV and killed while his friend Richard McLean, 16, was seriously injured with a broken pelvis and other bones. His other pal Jake Roberts, 16, was knocked off his bike but sustained only scratches.

...

In a statement of claim filed with the court, Simon is claiming $1.35 million in damages due to her psychological suffering, including depression, anxiety, irritability and post-traumatic stress. She blames the boys for negligence.

“They did not apply their brakes properly,” the claim states. “They were incompetent bicyclists.”

...

A South Simcoe Police report shows Simon admitted that she was driving at 90 km/h in an 80 km/h zone on the two-lane road. She claims she didn’t see the boys or any of the orange-red pedal reflectors. The impact of the collision cracked the windshield of her SUV, dented the bumper, a headlight was busted, the roof where Brandon hit was dented and scratched and a side mirror dangled by its wires.

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Permalink Reply by mike w. on April 27, 2014 at 1:03pm

A good judge will toss that right out of the couthouse. i hope they have one up there.

Permalink Reply by Reboot Oxnard on April 28, 2014 at 12:28am

Not just to be contrarian and ruffle some feathers on the board but also to point out that prejudice and the tendency to rush to judgment on limited information are just as much a problem amongst the cycling community as the rest of the world: what do we know about the accident? I did a little digging and found…

  • The accident occurred at 1:30am on a Sunday morning, a couple of days before Halloween in an area a couple of miles outside of a small community in rural Ontario.
  • The road where the accident occurred is a paved two-lane rural road with gravel shoulders, located pretty much in the middle of nowhere. The speed limit is 80kph (50mph) and it had been raining earlier, the road was damp. A street view of the accident site, looking east, and a street view of the accident site, looking west. 
  • There was little ambient light. It was a cloudy night and there are no street lights in the area. There is no human development in the area, either, so no porch lights or parking lot lights to brighten things up a bit.
  • The cyclists (a 17 year old and two 16 year olds) were riding bikes with no lights of any kind. Two of the bikes had “minimal” reflectors (on the pedals), one had no reflectors. They were wearing dark clothing and were riding three abreast in the road. They were not wearing helmets.
  • Reports are that the driver was traveling at approximately 90kph (55mph) at the time of the accident, which the driver has acknowledged.
  • Despite rumors to the contrary, the driver was administered a field Breathalyzer exam at the scene and had “zero” alcohol in her system.
  • The father of the victim has admitted that the boys made some mistakes but believes they were entitled to do so.
  • The police investigation report is 26 pages long and lays most of the blame on the cyclists and poor visibility. The police and the prosecutors both concluded that there were no grounds to charge the driver with any criminal complaints.
  • The family of the dead cyclist complained that the investigation was poorly handled, principally because the driver’s husband is a police officer. He is, but he works for a different department and had never met the cops who ran the investigation.
  • After the family complained, the accident and the subsequent investigation were reviewed and reiterated. It might be a ‘cop-wash’ but, if it was, it was a thorough one.

Not every cyclist is a blameless saint and the sword of justice cuts both ways. Sometimes it can make a hash of things. The victim’s father found out about the lawsuit during a meeting with the attorney who is representing him in a lawsuit he previously filed against the driver. Having decided to sue the officially exonerated driver on behalf of the officially blamed cyclist, it’s hard to imagine Dad being “gobsmacked” when the driver counter-sues unless he has an idiot for an attorney who didn't explain the possible outcomes to him.

I'm not sticking up for the driver - if you run something down in the middle of the road you bear at least a portion of the blame for the accident but, clearly, the cyclists were doing just about as much wrong as it was possible to do and the story we were given is incomplete and slanted and intended to inflame, not inform.

  1. http://toronto.ctvnews.ca/driver-sues-estate-of-ontario-teen-she-st...
  2. http://fullcomment.nationalpost.com/2014/04/24/christie-blatchford-...
  3. http://www.simcoe.com/news-story/4486025-woman-who-struck-and-kille...
  4. http://www.thebarrieexaminer.com/2014/04/26/woman-who-held-the-hand...
  5. http://www.ottawacitizen.com/news/national/Driver+fatal+collision+w...
  6. http://www.treehugger.com/bikes/woman-sues-parents-cyclist-she-kill...
  7. http://www.huffingtonpost.com/2014/04/27/sharlene-simon-brandon-maj...
  8. http://www.usatoday.com/story/news/nation/2014/04/26/newser-driver-...
  9. http://www.thebarrieexaminer.com/2014/04/25/driver-that-struck--alc...

Permalink Reply by Alex Z on April 28, 2014 at 2:56am

Reboot, thanks for the thoughtful post.

Permalink Reply by Gort 12-mile Pinklegneep on April 28, 2014 at 3:09am


Reboot Oxnard said:

Not just to be contrarian and ruffle some feathers on the board 

Oh whew good because otherwise you might have eructed a cloud of words that somehow balance out and present Two Sides to a woman suing the family of someone she killed because of the trauma of killing somebody. You might have even gone on to make some point about Not All Cyclists Are Saints as though this were a counterargument to anyone who was saying it, or that it would've mattered. 

Permalink Reply by Lisa Curcio on April 28, 2014 at 5:00am

Illinois State Police have a device that they use to administer a Preliminary Breath Test.  If it is positive, they then go on to other methods of determining Blood Alcohol Content (BAC).  The results of a PBT are not admissible in evidence here.
 
Jeff Schneider said:

The National Post article you reference says that a breathalyzer test was not requested.  It mentions a "roadside screening device" showing no blood alcohol.  Any idea what this device is?
 

Permalink Reply by Anne Alt on April 28, 2014 at 5:32am

FYI - There is a mix of physical tests commonly used by police to supplement breath tests, or to provide information about the driver's level of intoxication if they refuse a breath test. A CPD source tells me that one of the physical tests is extremely reliable even for someone who is a "career alcoholic" who can do the other tests even when very drunk.

Permalink Reply by Kevin C Dormant on April 28, 2014 at 6:51am

I usually don't comment on these types of threads because it is very difficult if not impossible to get a good sense of what happened from newspaper accounts. Just because something is "legal" or at least "not illegal," doesn't mean that it is always prudent or best practices. By the same token, just because something is illegal doesn't necessarily mean that the behavior was a contributing cause to the collision itself.

Dark clothes, no lights, minimal reflectors, dark, wooded road, no shoulder, and speed limit 50 mph? This is a really bad, really dangerous combination. 

Sarah D. said:

I'm interested particularly in this line:
"clearly, the cyclists were doing just about as much wrong as it was possible to do"

...Really? Riding without helmets (which is legal), wearing dark clothing (which is legal) and taking the lane when they had only a gravel shoulder to choose from instead (which is legal). 

Sounds to me like they simply didn't have lights - which I am not sure is legal or illegal there. That's ONE thing they did wrong. But if the SUV had headlights, then she could have seen them and stopped, had she been driving at a reasonable speed for the stated conditions. Also, in any jurisdiction, their braking ability should have no bearing here. 

Permalink Reply by Reboot Oxnard on April 28, 2014 at 7:25am

Breathalyzers aren't field units so it was imprecise of me to use that brand name. I was attempting to convey the idea that the driver *was* tested on the scene using a machine and was cleared.

There are several field devices available that provide vastly more accurate results than observation tests. I don't know which specific one was used, that information would be in the police report but that document is unavailable to the public. The accuracy of the field machines is not as good as the bigger units but is reasonably reliable. The point being that a mechanical field test was done and showed .00 alcohol - not .05 or .08 or .10, each break points that would have presumably precipitated further testing.

The folks (and cops) in Ontario have more experience with field units than in the US; in Ontario the police can (and do) set up road blocks and test every driver coming through with the things. Blow a .05 on the field unit and your license is suspended. You can ask for a test on another machine but if you don't or if you test above .05 a second time it's all over and there is no appeal. You won't be arrested between .05 and .08 but you will have your license suspended on the spot beginning immediately. If you don't have a sober passenger with you, they will park your car on the side of the road for you before calling a tow truck to impound it.

Here's a link to a discussion by an Ontario attorney about the tests and devices.

Another link.


Jeff Schneider said:

The National Post article you reference says that a breathalyzer test was not requested.  It mentions a "roadside screening device" showing no blood alcohol.  Any idea what this device is?

Permalink Reply by dan brown on April 28, 2014 at 7:58am

i am not a lawyer (nor a famous author) but I would guess this is good  bait for a counter-suit.

any lawyers in the house ???

Permalink Reply by Juan 2-3 or more mi. on April 28, 2014 at 8:31am

Even worse for the father getting sued is another one of his sons died from severe depression over his brother's death.

Permalink Reply by Sarah D. on April 28, 2014 at 8:40am

The point is that the driver did the killing and the not helping and the blaming and now the suing. This is crazy that we - anyone - would even be arguing her side. Is it cool for someone to kill a car driver if they are doing something wrong as they use the road? Then, get away with it -- then, get paid for it?

xo

P.S. to Dan, Kevin's an attorney and Lisa is a judge. 


Kevin C said:

I usually don't comment on these types of threads because it is very difficult if not impossible to get a good sense of what happened from newspaper accounts. Just because something is "legal" or at least "not illegal," doesn't mean that it is always prudent or best practices. By the same token, just because something is illegal doesn't necessarily mean that the behavior was a contributing cause to the collision itself.

Dark clothes, no lights, minimal reflectors, dark, wooded road, no shoulder, and speed limit 50 mph? This is a really bad, really dangerous combination. 

Sarah D. said:

I'm interested particularly in this line:
"clearly, the cyclists were doing just about as much wrong as it was possible to do"

...Really? Riding without helmets (which is legal), wearing dark clothing (which is legal) and taking the lane when they had only a gravel shoulder to choose from instead (which is legal). 

Sounds to me like they simply didn't have lights - which I am not sure is legal or illegal there. That's ONE thing they did wrong. But if the SUV had headlights, then she could have seen them and stopped, had she been driving at a reasonable speed for the stated conditions. Also, in any jurisdiction, their braking ability should have no bearing here. 

Permalink Reply by Kevin C Dormant on April 28, 2014 at 9:29am

Thank you for reminding me why I don't usually comment on these types of threads. The family of the dead boy is suing the driver. I assume (but don't know) that the driver's suit is a counterclaim. Illinois is a modified comparative negligence state; i.e. an injured party may recover damages only if he/she is less than 50% at fault for the injury or damages. I know nothing of Canadian law or if it differs by province. Whether defending the lawsuit brought against her by the parents, or prosecuting her own suit against the parents, many of the same elements will be at issue; i.e. what were the factors on both sides of the equation which resulted in this tragedy. The lawsuit is about dividing up insurance company money. The outcome of the lawsuits will not bring the 17 year old back from the dead.

Sarah D. said:

The point is that the driver did the killing and the not helping and the blaming and now the suing. This is crazy that we - anyone - would even be arguing her side. Is it cool for someone to kill a car driver if they are doing something wrong as they use the road? Then, get away with it -- then, get paid for it?

xo

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