Friday, May 2, 2014

Victimhood Chutzpah: SUV Driver Sues Family After Fatal Cycling Accident

by Nomad

A Canadian driver has opened a legal case in an Ontario Superior Court against the family of a teenage accident victim. Demanding compensation of over $1 million, she claims the tragic event has lessened her "enjoyment of life." 

In Hebrew, there's a good word for it. Chutzpah.  It means "extreme arrogance, brazen presumption." 
What other word can express the audacity of the motorist, who after hitting and killing a teenage bicyclist, has now decided to sue the estate of the boy's family for over $1 million? That takes a hell of a lot of nerve.

The Ottawa Citizen reports that lawyers for Sharlene Simon filed the claim last December in Ontario Superior Court, alleging that she “has sustained and will sustain great pain and suffering,” including “a severe shock to her system.” On top of that, according to the court documents, Simon's  "enjoyment of life has been and will be lessened.”

The lawsuit also names other parties, including two other boys, as well as the county of Simcoe, responsible for road maintenance where the incident happened. The tragedy occurred in the town of  Innisfil, about 80 kilometres north of Toronto.

In the early morning hours of  October 28 2012, 17 year old Brandon Majewski, along with two of his friends,  Richard McLean and Jake Roberts, decided to cycle to a nearby coffee shop. As they returned to their homes along a two-laned paved rural road, they were struck from behind by Simon's black SUV.

According to the news story:
Brandon took the brunt of the impact, and was thrown over the roof of the car; he was barely alive when paramedics arrived, and despite vigorous efforts at resuscitation, was pronounced dead about two hours later at the Royal Victoria Health Centre in Barrie.
Richard’s bike was struck simultaneously, and he was later transferred to St. Michael’s Hospital in downtown Toronto, where he spent weeks recovering from his injuries. The third boy, Jake, was knocked off his bike, but wasn’t seriously hurt.
Despite a lengthy investigation of the crash by the South Simcoe Police Service, their 26-page report concluded  that the “lack of visibility” of the cyclists “was the largest contributing factor,” and that on a dark overcast night, “the driver... did not see the cyclists on the roadway and was unable to make an evasive reaction.”

As a result of the findings, the local prosecutor decided that no charges against Simon would be pursued.

For the Majewski family, it was surely a tragedy that has shattered their world. And still worse was to follow.
About six months after Brandon’s death, his older brother Devon, who had taken Brandon’s death particularly hard, died in his sleep from a combination of pharmaceuticals and alcohol.
But imagine the father's reaction when his lawyer informed that the woman who killed his son would be demanding compensation.

Majewski noted that the police report  focused the blame for the accident nearly entirely on the teenagers, citing a lack of sufficient reflectors (only two of the three had them) or helmets. The report pointed out that the victims wore dark clothing which it said contributed to the accident. 
There were however lingering doubts about the quality of the investigation.

Venetta Mlynczyk, mother of the victim, later went to the Office of the Independent Police Review Director and alleged that, due to a conflict of interest, the investigation had been mishandled. 
She charged that one of the investigators from South Simcoe was friends with Simon’s husband, Jules Simon,
After a review, authorities decided in a September 2013 report that the original investigation was thorough and any "discreditable conduct by the officers" was not uncovered.

However, the report did confirm at least one rumor. Simon, according to the review of the investigation,  acknowledged driving at about 90 km/h, above the 80 km/h limit. Following the accident, police did not administer   a breathalyzer test because there were “no grounds to request” one.

According  to the law, an officer must have reasonable suspicion that there was alcohol/drugs in body. Yet, despite Simon, having admitted speeding on a Saturday night at 1 a.m., and despite not having control of her vehicle, the officer did not feel any need to administer a breath test. What exactly constitutes reasonable suspicion, I wonder? Running over three bicyclists would at the very least suggest "evidence of aberrant driving."
However, the report does say that:
A roadside screening device was administered “out of an abundance for caution,” the report said, and registered “zero alcohol content in her blood system.”
That leads to the next question: What constitutes a roadside screening? According to one source, an approved roadside screening devices are "commonly known as roadside testers or simply as an ASD. In the United States they are known as a PBT, which stands for preliminary breath test."
Not a blood test.
Testing for blood alcohol is normally done by a qualified technician at a police station. According to information found online about the Canadian protocols,
The proof of  intoxication "requires a procedure of taking a breath or blood sample and then extrapolating the estimated Blood Alcohol Content (BAC) at the time of the offence." 
That kind of analysis, one would assume simply for legal reasons, should be done by a medical professional. 

Because of these doubts about the circumstances, the families have launched their own $900,000 lawsuit, against the the Simons and Simcoe County police. In that legal case, it is charged that, contrary to the police report,  
Sharlene Simon was speeding, under the influence or texting at the time of the accident, and that (husband) Jules Simon allowed her to drive the SUV when “he knew or ought to have known” she was in no condition to do so.
Given  the fact tha  the original  police report and the subsequent review have supported the original conclusions- that the driver was not responsible- it is difficult to see how the case will go forward. After all, as the newspaper article observes, none of the claims in either suit has been tested or proved.

Still the idea of suing the grieving family of your crash victim for stealing away your "enjoyment of life" will probably not make Ms. Simon a very popular local figure in the Canadian town.
Perhaps she could be admired for having more than enough chutzpah.

However, in the end, when it comes down to enjoying life,  with a whole lifetime ahead of him,  Brandon Majewski had only seventeen years to enjoy his own.