Driver Who Killed Teen Suing Him For Emotional Distress
Today’s odd legal story comes out of Canada, where an Ontario woman has filed what seems like one of the most outrageous counterclaims ever:
A woman driving a car that struck and killed a teenager and seriously injured another is now suing the dead 17-year-old in a twist the boy’s family lawyer calls “distasteful.”
A statement of claim filed last December alleges the driver, Sharlene Simon, “sustained serious and permanent injuries to important physical, mental and psychological functions” following the October 2012 accident in Innisfil, Ont.
It says her “enjoyment of life has been irretrievably lessened.”
Brandon Majewski, 17, Richard McLean, 16, and Jake Roberts, 16, were riding their bikes along Innisfil Beach Rd. around 1:30 a.m. on Oct. 28 when the accident occurred.
Majewski was killed and McLean seriously injured after being struck riding in one lane of the two-lane stretch which was dimly lit on a drizzly, damp night.
Roberts escaped unharmed. All three teens are named in Simon’s lawsuit.
A 26-page reconstruction report by the South Simcoe Police Service said visibility of the cyclists was the main contributing factor and that police were advised against laying charges by the Crown because “there is absolutely no reasonable prospect of a conviction.”
“The family feels like the wound has been opened up again,” said Brian Cameron, the Majewskis’ lawyer. “The legal theory I sort of understand, but never against a child. Not against a child.”
(…)
The statement of claim alleges the boys were negligent, biking without the appropriate lights and reflectors, without helmets and they didn’t keep an eye on the road or their bikes under control.
It also claims negligence on the part of the County of Simcoe for failing to keep the road and lighting in good repair.
None of the claims have been proven in court.
Simon’s husband, mother and three children are also named as plaintiffs in the case and, combined, are seeking more than $1 million.
Simon has been heavily criticized since news of the lawsuit broke. “The whole situation is tragic,” her lawyer, Michael Ellis, said in response.
“It’s a tragedy what happened to the boys but it’s also a tragedy that’s happened to (Simon),” he said, adding she has been diagnosed with post-traumatic stress disorder and is unable to work.
“I understand their grief and I understand what they must be going through is awful but my client is also living with this nightmare every day.”
Majewski’s stepmother, Lisa Tessier, called the lawsuit “cruel.”
“My dead son and the other boys are being sued by the woman that killed him because she is distraught,” Tessier wrote in an email.
“Normally, I would not react like this. But I think it’s very cruel to me that my life is basically ruined. I lost both my children and now they (the three teens) are being sued because she is upset.”
Majewski’s older brother, Devon, was found dead at home six months after the accident.
Majewski’s family is also suing Simon for what essentially amounts to wrongful death in the case, and has brought the county in under essentially the same legal theory that Simon is making in her claim.
Since I’m not at all familiar with Canadian law, I’m not going to comment on the legal and procedural reasons why this claim against a dead 17 year old may have been brought (indeed, if anyone who is familiar with the law here can explain this in the comments, please do so). However, at least here in the United States a claim of this type against the estate of the child would certainly not be considered mandatory and in most circles would be seen as the definition of legal chutzpah.
a new low, and in canada no less! must be some insurance money that needs claiming- i doubt if this broad thought it all up by herself.
Wait, who died in this accident again?
Without taking a position on this, I do have to wonder how much Simon’s suit was motivated by the Majewski’s suit. Especially considering that the report seemed to indicate no demonstrable fault on the part of Simon.
It’s an awful situation. And while I totally get the Majewski’s grief, at this point I think it’s also fair to realize that going through life knowing you accidentally killed someone isn’t particularly easy either. Or getting brought into civil court over the accidental death.
On the other hand, Simon’s statements are particularly tacky.
@Matt Bernius:
I can see Simon raising the issue of the boys negligence as a defense in the parents suit against her. I can also see her bringing in the county on the theory that they didn’t properly maintain the road (a suit that would go almost nowhere here in the U.S. thanks to sovereign immunity). The part I don’t get is the independent suit/counterclaim for emotional distress, something that might not even be covered by whatever insurance the Majewski’s might have.
Perhaps this has something to do with the nature of the Canadian legal system and the procedures in civil cases there. I’m not sure.
That makes sense Doug.
On the topic of emotional distress, I knew someone who accidently hit and killed a child through no fault of his own (large piles of snow and a hidden child that ran into the road on a snowy day), I can attest to the fact that the accident was something that haunted him for the rest of his life (and other folks said he was “never the same” after the accident).
This occurred during a different time, when these sorts of civil suits were not as common. I don’t know how he would have reacted to being sued for wrongful death.
I guess my broader point is that it seemed possible that Simon is countersuing out of sheer anger/frustration.
@Doug Mataconis:
I’m not at all familiar with Canadian tort law, but my guess here is that the counterclaim serves one or both of two purposes: to try to goad the Majewski’s into dropping their suit, or to try to recover money from the Majewski’s homeowner’s insurance to pay off the judgment if they lose in the Majewski suit. This certainly doesn’t address how insensitive it looks, though.
It’s a terrible situation all around, and although I cannot imagine their grief, I think the Majewski’s maybe should have thought twice before filing suit in the first place, especially since the police investigation showed that it was an accident and not Simon’s fault.
@Doug Mataconis: Some attorneys don’t feel right if they don’t counterclaim, because they don’t want the thing to go away if the plaintiff bails, because the personalities involved aren’t able to conceive of a defense that doesn’t involve an affirmative claim, etc. We don’t need to be in Canada to experience this 🙁
In other reports on this, there have been unsubstantiated claims that Simon was intoxicated and that her husband, a policeman, was driving behind her and ensured that no DUI test was administered. I have no way of knowing if these are true or not but it may explain why the Majewski’s felt the need to sue in civil court.
I don’t know if Canada has “looser pays” rules, but otherwise a counter suit seems the only way to recover lawyer fees even if you win.
“legal chutzpah”? More like just plain old b.s. The judge should laugh this out of court and fine this person.
How much of this is due to the “kitchen sink” method? I was taught that one of the claims in civil suits we should always be looking at in negligence suits was NIED (Negligent Infliction of Emotional Distress), even though the chances of it succeeding was very low.
This sounds like a totally ass-backward application of it, however. You run three kids down and kill them and YOU’RE the person whose feelings have to be worried about? I think not!