Elizabeth Shelton, the 21-year old daughter of a state district juvenile judge, was convicted last year of intoxication manslaughter for the death of her boyfriend. Shelton caused his death when she crashed a Lexus SUV into the back of a truck he was passenger to.
Her blood alcohol concentration was more than three times the legal limit at the time, two tests showed.
Shelton was sentenced to four months in jail and eight years probation.
Now, Shelton, her family and the family of the boyfriend who was killed are suing for $20,000 for the destruction of the Lexus SUV she was driving and an undetermined amount for mental anguish, pain and suffering.
Shelton has named 16 defendants, including insurance companies and banks. According to the defence, “They’re just throwing everything against the wall to see if anything sticks.”
During Shelton’s trial, it was disputed by experts brought in by the defence and prosecution whether or not the other driver had swerved into Shelton’s lane.Â
Testimony also showed that the company the driver was working for let the insurance on the truck lapse.
Writing in the lawsuit, Shelton’s attorney claims that “The injuries and property damage sustained by (Shelton and her family) were not the result of intentional acts, but were accidental and caused by the negligence of the uninsured/underinsured driver.”
It stands to wonder how a sober Shelton would have reacted to the disputed swerve. It seems that Shelton is responsible for at least the bulk of the damage to the car and her own mental anguish, pain and suffering.Â
Also, a truck is not made more likely to swerve by being uninsured. Presumably, the company had to pay either way for liable damages, whether directly or through an insurance company, as well as any state fines that resulted for having the truck on the road uninsured.
This lawsuit is akin to a negligent shooter suing the friend of the victim for the cost of the bullet and its tragic, avoidable consequences.
My mother was sued by the passenger in a car that hit her car. It did not go very far but the interesting thing was the passenger sued the driver of the car she was in and my mother.
In the suit against my mother she claimed she was at fault because she was the last person that could have acted to avoid the accident.
In the suit against the driver of the other car she claimed she was at fault because she was the last person that could have acted to avoid the accident.
The suits were filed together and thus both claims were provided in the documents given to my mother. It seems strange to a layperson that someone could make two contradictory claims in one lawsuit.
Your blog is très kewl.
It would be interesting to read your take on this current class action civil litigation happening in Ottawa.
http://www.radio-canada.ca/regions/ottawa/2008/12/19/004-hopital-ottawa-recours_n.shtml
As law students we’re unable to provide legal advice on any issues.
As a strictly academic discussion, I would say the tricky part here will be demonstrating that the lower radiation treatment actually caused some harm.
The calibration issue seems similar to Stockford v. Johnston Estate, [2008] N.B.J. No. 122, where an action was successful for malpractice when a tubal ligation did not work due to a Filshie Clip that was not calibrated properly.
In this case the hospital was held liable, but the action against the physician was dismissed because the calibration was done exclusively by the nursing staff.
Again, there is really very little that you can say without a more detailed fact scenario though, but it does look like an interesting case.
I have a background in medical radiation as well, and the effects of dosage rates are enormously complicated.
Dear RWW:
What you are describing sounds like “pleading in the alternative.” It is a very common practice.
It is also expressly authorized by the Rules of Civil Procedure. For instance, Rule 25.06 of the Ontario Rules provides that:
In the pleadings, and later in argument, the lawyer may put forward completely inconsistent scenarios as to what happened. That is usually done when the lawyer doesn’t actually know for certain who caused the injury.
The safest bet is to sue everyone who could have possibly caused the injury.
When the evidence comes out on discovery it might become obvious that a particular defendant or set of defendants caused the loss. At that point, the claims against the other parties might be dropped.
If, after discovery, it is still unclear who caused the loss (quite common), then the judge/jury will ultimately decide at trial which of the lawyer’s scenarios (or none of them) is most likely to be true and assess damages accordingly.
The risk that the lawyer takes in “throwing everything against the wall to see if anything sticks” is that costs will be awarded against his client. The client will have to pay the legal fees of the successful defendants (the ones who are found not to be responsible).
Law and justice are not equal.
Rule of thumb is : if you have money, you can have more.
Admittedly I havent reviewed all of the facts of the case but it may not be as ridiculous as it appears on its face.
Hypothetically, if I were to drive home with a BAC of .24 (three times the limit), perfectly between the lines, and I got hit by a negligently operated vehicle, and it is found that I couldnt have avoided the accident even if I were sober my own intoxication should in theory be irrelevant to a negligence suit.
Given that she was convicted of manslaughter, its clear that a court found she was negligent in the criminal law context so this is somewhat different. But in car accidents there are often multiple negligent parties, and contributory negligence is not a complete bar to an action (in Canada at least). It once was, and that is why the provinces and territories have contributory negligence statutes.
So even if a court found the woman was partially negligent because she was drunk and thus didnt prevent the accident (lets say 40% liable) she still has an action for 60% of the damages–including busted vehicles–flowing from the negligent act. Similarly the driver of the car she hit would have an action for 40% of its damages against her.
Unless Im missing something here…
KC: Sounds exactly right. :)