Woman Kills Boy in Car Accident Then Sues His Estate

Finebloom, Haenel & Higgins

In October 2012, three teenage boys were riding their bicycles on the side of a country road in Canada when they were struck by a Kia Sorrento being driven by 42-year-old Sharlene Simon.  One of the boys, Brandon Majewski, was killed and a second boy was seriously injured with broken bones.  The third escaped injury.  A police investigation found that while Simon was going 5 MPH over the speed limit, she had not been drinking or acting in any other way to be charged criminally for her role in the accident.  Police found that lack of visibility on the part of the three boys was the largest contributing factor.

The case has gotten recent headlines after what seems to be an outrageous move on the part of Sharlene Simon, the driver in the accident.  She recently filed a lawsuit against the family of the boy she killed and the boy she injured for the pain and suffering that she claims she was suffering as a result of the accident.  She claims that as a result of the accident, she had depression, anxiety and post-traumatic stress among other psychological problems.  She was suing the families of the boys for $1.6 million dollars.  The family of Majewski has counter sued for $900,000, claiming that Simon was either intoxicated of otherwise distracted and her negligence was the cause of the accident.

While making the move of suing the estate of someone you had a role in accidentally killing may be somewhat socially unacceptable, it is legal, at least in Florida.  However, that does not mean that a person who files a lawsuit will actually end up collecting anything and, in fact, it would most likely backfire when it comes to wrongful death suits going back against the driver.

In Florida, a person can sue for emotional suffering in the absence of injury in the case of there being an impact.  The impact does not have to be a serious one, such as being hit by a car, but could involve even a slight touch, such as a person putting a gun to another person’s head.  In a case such as that, a suit for emotional damages without damages for a physical injury would be allowed.  So, theoretically, a case such as Simon’s, where there was impact between her and the boys, a lawsuit could be filed in Florida.  Although since a suit like that is untested here, it can’t be guaranteed that it would actually survive the inevitable motion to dismiss or later appeals.

However, even if by some chance a jury found that the boys were negligent and caused emotional distress, they may not be particularly sympathetic to a defendant who is suing the victims of this accident and may award damages accordingly.  If the jury finds that a driver’s own negligence was also the cause of the accident, or that the emotional damages aren’t worth $1.6 million, they probably will adjust it to a number they feel more comfortable with.  While this may not be a huge drop in many personal injury cases, in a case such as this one where the cause of action is so emotionally objectionable to just about everyone, there is a real risk that a jury may find that the damages were only negligible and award only a token amount, i.e. $1 or $100, meaning that the driver collects pretty much nothing anyway.

There is one final reason why suing the family of an accident victim in a case like this, and that is that you run the risk of making the other side so angry that they will sue you themselves and then be completely unwilling to negotiate their case.  A wrongful death case against a driver who hits a minor on a bicycle is much more common and more likely to be successful in front of a jury than a case for emotional distress against that child’s family by the driver.  In Simon’s case, no claim had been filed against the driver until she filed her own claim.  At this point, the family of the teen is probably likely so hurt and offended by this suit, they will be unwilling to want to come to a resolution outside of court on their very valid wrongful death claim.