When I speak to the family of the victim of a fatal collision they often say to me, “I just can’t believe that a driver can kill someone and nothing happens to them.” Their complaint is valid. If a driver is undistracted, sober and they negligently kill someone with their car, they are unlikely to incur any criminal charges other than traffic violations. For the family, the tragic loss of a loved one is so huge that they can’t imagine someone could cause such a loss and not be punished.
First, let me be perfectly clear that although I have handled a number of fatal bicycle cases, I have never seen a fatality where the family actually cared about the money when they came to me. On the contrary, I have seen cases in which the family has refused to take legal action because they didn’t want to make financial gain from their loss. They almost never want it to be about the money.
Early on in my career we handled a case on behalf of the family of a young woman who was killed by a negligent driver. I was approached by a member of the family when I was scheduled to give a presentation to a group of cyclists. When I arrived I found a young man waiting outside to meet me. He introduced himself and listened to my presentation. Afterward he approached and explained he was the fiancé of a woman who was killed on her bicycle. He explained that the family did not initially want to pursue a civil lawsuit, pinning their hopes to achieve justice through the criminal process. They watched the criminal case flounder and fizzle. It was clear that no recourse would be dealt to the defendant through the criminal case, and he wanted to know if I thought I could help. This case came to us because the family was disappointed with the course of the criminal proceedings.
The facts of the case were shocking. Twin brothers were in a sedan approaching a light. As they approached the subject intersection the light turned yellow. Instead of stopping, the driver accelerated into the intersection attempting to beat the red. He failed. He also hit the intersection going well in excess of the posted speed limit.
As that car was speeding toward the intersection there was a young woman on her bicycle waiting at the red light. She was patiently waiting for the light to change. The light turned green. The woman rolled into the intersection to be struck by the speeding car. The driver was unable to stop his car. He swerved into oncoming lanes in an unsuccessful attempt to avoid the collision. He was going so fast that he was unable to slow down enough to get back into his lane before he reached a median in the road. The driver fled, driving the wrong way on the wrong side of the median. When the driver was safely away from the scene, the twin brother switched places. When police finally caught up with them they both claimed the other was driving, apparently knowing that an in-court identification would be required to convict in the criminal case.
I will never forget the disappointment of the family when the criminal trial concluded. The defendant was sentenced to community service. During the process the defendant showed a lack of respect. No one wants to see a killer smile or laugh during the criminal trial for the death of their loved one. The criminal trial was just a game to this defendant.
To her credit, the prosecuting attorney in that case tried to get a meaningful conviction. She took the case to trial arguing that the defendant’s action amounted to wanton recklessness and should be punished. The judge gave the defendant the benefit of the doubt as to his speed at the time of the collision and refused to convict the defendant on a reckless driving charge.
In a different case, I approached a prosecuting attorney to speak about my client’s wishes. I said, “The family would like to see the defendant charged with something more than a moving violation.” The prosecutor sighed and rolled his eyes. I was furious, but not shocked. That defendant was ultimately charged with a minor traffic violation.
More recently, we had a fatality we handled in rural Iowa in which a driver struck and killed a woman on a bicycle. In that case I set up a meeting with the county attorney. We discussed the wishes of the family and his plan to prosecute the defendant. I remember him saying to me, “Legislatively, I just don’t have the tools to do anything other than prosecute a traffic violation.” This was true. There simply are not laws which would allow criminal punishments for drivers who kill vulnerable roadway users in the absence of distracted or drunken driving.
We can offer some options for people searching for justice. Many times the family just wants an explanation. At the very least, we can sit a defendant down and get their statement on record. I can take their deposition and have them explain their actions. We can call them to testify and have them explain their actions to a jury of their peers. We have effectuated recoveries against a defendant’s personal assets. We can garnish wages. Sometimes we can even attach their house. Personally, I like the idea of taking a driver’s car. The point is, if the criminal justice system isn’t going to punish a defendant perhaps we can offer some recourse.
If you or someone you love is faced with a loss, and they are struggling with disappointment from the criminal suit please call us. We are glad to discuss what we might be able to accomplish through the civil process.