Posted by Snowie on August 23, 2000, at 5:10:08
In reply to U.S. legal questions, posted by Cam W. on August 22, 2000, at 23:13:23
Cam,
I am merely a lowly legal assistant in the State of Florida, although I did receive my B.A. degree in legal studies from the University of Central Florida. You obviously need to seek the advice of a Florida lawyer, but I'll give you my initial reaction about the case from what you've written.
Usually when an accident occurs that involves death or property damage, all possible witnesses are interviewed at the scene. A statement by each witness, addresses and telephone numbers are obtained in case they should be needed as witnesses at some point in the future. Any witness to an accident that involves death or property damage is required to wait until the authories arrive. The person who was with her should make an excellent witnesss, since he was obviously there when the accident occurred. However, if he was injured to the point where he doesn't remember much about the accident itself, he would obviously be of little use as a witness.
As for whether or not the driver can be criminally charged in the accident depends on many factors, such as was he driving while impaired (such as by alcohol or drugs); was he speeding; was he driving in a wreckless manner; did he ignore a stop or caution light; was his driver's license suspended, etc. Some pedestrian accidents are clearly the fault of the driver, others are the fault of the pedestrian, and some involve just being in the wrong place at the wrong time. If he was driving in a lighted area and plowed into two pedestrians already in a crosswalk, then he clearly was at fault. Res ipsa loquitur is a Latin legal term which means "the thing speaks for itself." On the other hand, if he was driving prudently and two pedestrians stepped out in front of his path, then probably not.
Regardless of who was at fault, I doubt you will get rich unless the driver of the vehicle was on the job at the time of the accident. Attorneys love accidents of this type since it involves "deep pockets" if at the time of the accident he was acting within the scope of his employment. If that is case, you could bring a civil suit against the driver's employer as well as the driver individually. If that is not the case, you could still bring a civil suit against the driver and his insurance company, but like you mentioned, you can't get blood out of a turnip. If the guy's driving history looks like a rap sheet, it's possible you could sue his insurance carrier for more than the term limits. His driving record is easily obtainable from the Florida Department of Motor Vehicles.
I doubt you could sue the karaoke resort who invited her unless she was a minor and they served her alcohol (a criminal offense), which might have impaired her otherwise normal reasoning that night. The resort would not have been allowed to serve alcohol to any person under the age of 21 in the State of Florida. If that is not the case, the resort would have no responsibility for her safe transportation to and from the resort. They could just as easily turn around and say that you, as her parent, had that responsibility.
If the crosswalk had no lights, it's possible that you have an action against whoever has jurisdiction over the crosswalk. I don't know where the accident occurred, so I don't know who has jurisdiction, but it would likely involve a transportation authority.
Just my thoughts from what you wrote ... I have felt very badly about this since I heard about the accident. Definitely do consult with a Florida lawyer about this. The Florida State Attorney's Office is usually reluctant to bring criminal charges against a person unless it feels it has a good case. If a driver has a clean driving record, was not driving impaired, and disputes the only witness (who may have difficulty remembering the details of the accident), then it comes down to a he said-she said type situation. However, whether or not criminal charges are filed doesn't preclude you from bringing a civil suit against the driver and his insurance company.
Snowie
> Sorry, to bother everyone with this. I know it's not really a medical question, but it is affecting my mental health.
>
> I just found out today that the gentleman who killed my daughter, Suzanne, probably will not be charged either criminally or with a traffic offence because there are no reliable witnesses (although many people saw it happen and saw him driving "aggressively). Wouldn't one think that the guy who was crossing in the lit crosswalk with her and was clipped be a reliable witness? I think that driver hit and killed her is fairly self evident. I don't want to get rich, I just would like some justice. Perhaps a proper crosswalk with stop lights or maybe an pedestrian overpass at the site.
>
> I don't know laws in Florida, but this seems a little strange. Do I have to persue civil litigation ala O.J.? This guy is 23 years old and was driving a $30,000 truck with $10,000 insurance. He works in a restaurant, so I doubt you can squeeze blood from a stone (although, sometimes I would like to squeeze his head - but I am really not a violent person). Do I sue the resort who invited her to the karaoke night and didn't guarantee her safe return? Do I sue the guy who blocked her view of the truck and stepped out of the way before he was hit, leaving her to face the truck? Do I sue the city for not providing a safe passageway across a busy street, where 2 other people have been killed? Do I sue the police force for doing a drug and alcohol test on my daughter, but not on the driver? I mean for cripe sakes, she was already more than halfway across the street when hit.
>
> Our lawyer up here has been ineffectual in procuring a U.S. lawyer for us (after all, it's only been two and a half months since the accident). I shouldn't really complain, though. She is doing this as a gratis favor for us and her contact in the states hasn't returned her calls.
>
> The $10,000 insurance, which I haven't yet collected, doesn't cover returning her body to Canada and the funeral, let alone a lost vacation that we saved 2 years for. We still have six days on our non-refundable Disney passes, which cost us $1700 CDN with discount (although Disney did refund Suz's ticket - that was nice of them). We will be going back in another couple of years, so I guess this is a moot point. Besides, we owe CarolAnn and her husband a very nice dinner for the help that they gave us.
>
> Sorry for the anger. Thanks for letting me vent - a sad Cam :´^(
poster:Snowie
thread:170
URL: http://www.dr-bob.org/babble/social/20000813/msgs/176.html