The Verdict - The Lombardi Law Firm Blog
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The Sioux City Journal reported about the crash in Spencer, Iowa where two people were seriously injured Monday in a hit-and-run crash in Clay County. Injured were two people on a motorcycle. The alleged offender was driving and SUV on Highway 18 at around 7:16 p.m.
A person later was found that fit the description and he was charged with operating under the influence and improper passing. Additional charges are, according to the police department pending.
Not knowing more about the circumstances it's difficult to discern the motivation of the driver for leaving the scene. One is immediately lead to the conclusion this suspect must be the one and was driving drunk. But as a lawyer we are not able to jump to such conclusions. Is this the correct driver? Or is he just a suspect. The police will be required to produce witnesses and other evidence to place this suspect in the driver's seat of the appropriate vehicle, which undoubtedly has some damage to it and perhaps paint chips from the motorcycle or clothing or blood from the injured persons. Also witnesses that can place the driver in a bar or other drinking establishment will be helpful to corroborate his drinking and the amount to which he drank. Remember the suspect was not found at the scene and could have consumed alcohol at some other location following the collision; which isn’t relevant to his impairment while driving at the time of the crash.
A detailed technical investigation of the scene is critical. Speeds may be determined from crash impact, witness testimony and from ski marks, if any. All this is evidence of a crime and must be performed in such a way as to be later admissible in court.
A tough job but one in which the police departments are fully equipped to do.
This is why young men and women go to law school or join the police academy. This is the work of forensics that excites many young people.
Motorcyclist’s “loss of control” may not be the cause of this wreck.
Doctors refer to general diagnoses as "a waste-basket diagnosis", meaning the diagnosis is so general that it's meaningless. So when the Harrison County, Iowa officials list a loss of control as the cause of what killed a 49-year-old Omaha man after his motorcycle crashed it’s pretty worthless.
KCAUTV reports that David Jeulfs of Omaha was driving his motorcycle two-miles south of Missouri Valley when “he lost control of it” and crashed into a concrete railroad embankment. Of course the reporting is what it is because of the cause listed by the Harrison County officials who investigated the accident. I’m not picking on their reporting. But what I am trying to do is to explain why lawyers don’t find “loss of control” a sufficient explanation of the true cause of what caused Jeulfs to lose control. The passenger, Deborah Godek may be able to shed light on what actually caused Jeulfs’ to initially lose control.
When lawyers, judges and juries evaluated fault and negligence they seek to know more about what caused the driver to initially lose control. It could be speed, drinking alcohol and the effects, a deer crossing, a gaggle of geese in the roadway, a dog chasing the bike, a pot-hole in the roadway, a grease spot or some other debris on the road’s surface or a distraction caused by the passenger can all be “causes” of what caused the driver to “lose control”.
Loss of control is an initial description or preliminary description that leads to further investigation to establish the true cause of the collision and resulting death.
Take for instance a second motorcycle collision-wreck in Henderson County, Iowa where a 52-year old Christopher Coates of Corydon, Iowa was killed. In this collision there is another vehicle, a pickup truck driven by an 85-year old gentleman from Galesburg. In this wreck it’s reported the driver of the pickup truck turned left of center intending to make a left turn, but did so right in front of the motorcycle. The motorcycle driver lost control of the cycle as it slid into the pickup truck, causing his severe injuries and death and serious injury to the passenger of the motorcycle. It’s correct to say the motorcycle driver lost control, but that’s not the cause of the collision. The cause of the collision is the pickup truck turning left in front of the motorcycle, which causes him to lose control, and then leads to the crash. Going back one more step the pickup truck driver failing to see the motorcycle, a failure to use due care while driving, is the true cause. Speed could also be a factor along with other causes that influence vision and reaction times.
When a motorcyclist loses control it’s easy to initially blame the driver, but that’s unfair and wrong. You first have to examine all potential causes of what made the driver lose control in the first instance. We’ll examine one more crash. KOLNKGIN.com reports of a Dixon County, Nebraska crash where a 49-year old woman died after crashing into a car. She obviously lost control but that is not the cause of the crash or negligent act that caused her to lose control. What happened on that Sunday afternoon on Highway 12 near Ponca is that a car on the left shoulder of the highway came out and attempted to turn right, causing the motorcycle to crash into it. The negligent act is not the motorcyclist losing control, but the attempt by the car driver to cross lines of traffic from the left to make a right turn.
So when you are analyzing fault or negligence don’t stop short of the true cause. If there can’t be a determination of the true cause, in cases where the driver is killed and there is not a witness and no other vehicle involved, the waste-basket cause may have to be the only determination. But when there is more, ask questions and analyze the other potential causes. Good luck with your case.
Yesterday our news items included a motorcycle-deer crash near Le Mars. Today I'm taking that a bit further and discussing whether child-neglect laws require parents to protect children by requiring them to wear a helmet while riding.
I’ve been following motorcycle crashes now for well over a year to determine causes and how they might be prevented. One way to prevent serious injury, including brain damage is to wear a helmet. Preventing the accident or wreck can include educating car and truck drivers to be more aware and to look harder during the summer months for motorcycles, but more than half of all accidents involving motorcycles aren’t with another vehicle. As we’ve reported before animals, including deer, are a considerable safety factor.
Here was yesterday’s news report.
Another motorcycle-deer collision caused injury to a Remsen father and so. The Sioux City Journal reports Michael and John Naser were taken to Mercy Medical Center – Sioux City for injuries received on Iowa Highway 3 near Polk Avenue in Plymouth County. No report on whether or not a helmet was worn by the 12 year old passenger and the extent of injuries each received. I’ve wondered if a parent has a common law duty to protect a child with a helmet, even though state law does not require one. State law doesn’t require a parent to hold a child’s hand while crossing a busy street, but the common sense tells us otherwise. While children in most instances can not sue a parent in civil court for negligence county officials might charge a parent with neglect under Iowa State Law. Many states have such laws which are collected at the Child Welfare Information Gateway site. I say this because neglect can include a failure to supervise.
Neglect - Neglect is frequently defined in terms of deprivation of adequate food, clothing, shelter, medical care, or supervision. Approximately 21 States and American Samoa, Puerto Rico, and the Virgin Islands include failure to educate the child as required by law in their definition of neglect.5 Seven States further define medical neglect as failing to provide any special medical treatment or mental health care needed by the child.6 In addition, four States define as medical neglect the withholding of medical treatment or nutrition from disabled infants with life-threatening conditions.7
As a lawyer who represents people I’ve been conditioned to look ahead. Any parent whose child was killed while on a motorcycle riding without a helmet might find themselves charged with a crime by an over-enthusiastic prosecutor. It’s something to consider.
Neglect that results in a child’s death often times draws serious consideration to the degree of risk the child was exposed.
Fatal Neglect - Certainly the most severe, irrecoverable consequence of neglect is death. In 1996, a review of the States' child maltreatment fatalities revealed that 45 percent of the deaths were attributed to neglect and an additional 3 percent to neglect and abuse (Wang & Daro, 1997). Although not all States reported the data, it is estimated that these percentages translate into approximately 502 child deaths associated with neglect in 1996. Another study conducted in Iowa (which only had a sample size of 34) found that two-thirds of the children who died from neglect were under the age of 2, more than two-thirds were male, and families had an average of 3.3 children (Margolin, 1990). This study also found that the large majority of children who died due to neglect died as a result of a single life-threatening incident rather than from chronic neglect. These fatalities included drowning and scalding in bathtubs, fires, unsafe cribs, gun accidents, choking, and drug/alcohol overdoses. "In the vast majority of fatalities from neglect, a caregiver was simply not there when needed at a critical moment" (Margolin, 1990, p. 314).
See Acts of Omission : An Overview of Child Neglect, Bulletin for Professionals, 2001.
While I offer no opinion on whether this is even possible it something to consider. As our government resources to pay for medical care become tighter these are the areas where legal concerns abound. Where your helmet or at least require your child to wear one. Be safe not sorry.
While wearing a helmet remains a personal choice in Iowa you should do so knowing the risks and how motorcycle accidents are occurring. The cause of motorcycle accidents is more than just two vehicle collisions caused by a driver not paying attention or looking for motorcycles. Animals, like deer are a leading cause of wrecks that cause a loss of control by the motorcycle driver. Be aware and protect yourself by wearing a helmet.
Brian Hetrick, 29, Stronghurst, Ill – Killed. No helmet. Swerved to miss a raccoon and had been drinking although not over the limit.
Nicolas Bitner, 20, Central City, Iowa. Killed. No helmet. Lost control at Jordans Grove Road and landed in the ditch. Suffered serious injuries and was airlifted to the University Hospitals in Iowa City. [We are told Mr. Bitner is alive and is recovering. Thank you for the correction Cindy!]
Polk County Accident – driver not yet known was seriously injured when his motorcyclist struck a guardrail in Polk County, Iowa. Speed is believed to be a factor.
Jerry Alan Andresen, 41, of Maquoketa. Killed. Wearing a helmet. Intersection collision with motorcyclist turning left. At 4:06 Am Saturday August 16th 2008, the black Kawasaki Motorcycle was travelling South on Welcome Way (U.S. 61 South) in the center lane approaching intersection with 53rd St. The involved light blue Mercury Grand Marquis, operated by Robert Hartz, was travelling west bound on 53rd St in the center lane approaching this same intersection. The vehicles both entered the intersection near the same time and the motorcycle impacted the side of the westbound vehicle. The motorcyclist was ejected from the motorcycle at impact. Both vehicles sustained heavy damage as a result of the crash. It is believed that alcohol may have been involved in the crash, which remains under investigation by members of the Davenport Police Departments Crash Investigation Unit. No indication in the reported story who was at fault or had the right of way. The Quad-City Times reports police investigation concludes or suspects that someone ran a red light.
St. Paul Accident - Killed. Traffic on I-94 came to an abrupt halt causing the motorcycle driver to swerve into the break down lane. Another driver of a Jeep Grand Cherokee also swerved onto the shoulder and struck the motorcyclist, which resulted in the motorcycle driver’s death.
Miguel Cervantes, 38, hospitalized and in serious condition. Mason City, Iowa. Time was 1:15 PM at the intersection of State Highway 18 and B-20. Intersection collision where the driver of the car appears to have not seen the motorcyclist, then did, stopped before entering the intersection, but causing the motorcyclist to attempt avoiding an anticipated collision, losing control and flying off the motorcycle.
Donald Wilhite, 64, Waterloo, Iowa. Serious injury including a head injury. No helmet. Report is that Wilhite was driving north on Washington Street in the 1100 block when he lost control of his motorcycle and crashed.
Frank Snyder, 48, Stanton, Iowa. Killed. No helmet. Attempting to pass a vehicle and crashed into a 1995 Dodge Intrepid on U.S. Highway 34 two miles east of Red Oak.
Ottumwa, Iowa, driver unknown. Motorcycle with a side car and a white sedan. Serious injuries being investigated by the Iowa State Patrol.
James C. Rich, 61, Newhall, Iowa. Killed. Lost control of the bike while negotiating a curve causing the bike to roll. Accident occurred on 27th Avenue around 11:30 A.M. near 70th Street, Newell.
Penny Hurlburt, 46, Camanche, Iowa. Serious injuries. Around 6:00 P.M. a deer darted out into her path causing her to brake. A motorcyclist behind her driven by Dale Hardison, 59 or Delmar, hit her motorcycle and was thrown to the pavement. Both were transported the Jackson County Regional Hospital.
James Miller, 46, Des Moines, Iowa. Killed. Unknown if a helmet were worn. It’s reported that while driving a scooter Miller was struck by a Chevy Caprice that was attempting to get away after colliding with a van. Driver of Caprice is charged with vehicular homicide.
Brian Beck, 30, Spencer, Iowa. Killed. Rear ended by a black SUV on Highway 18 at 7:16 P.M. The black SUV left the scene. The driver was later located and arrested for driving while under the influence, improper passing along with vehicular homicide. A passenger on the motorcycle, Krystal Plagman, 19, of Marathon, Iowa was also transported to the hospital, both in serious condition. Reportedly a spokeswoman at Avera McKennan Hospital in Sioux Falls reported Beck was in critical condition. No report on helmet use.
Kenny G. Deboer, 23, Little Rock, Iowa. “Nonincapacitating injuries” and taken to Sanford Sheldon Hospital after crashing his motorcycle. The Argus Leader reports, “Deboer was driving west on a 2007 motorcycle on County Road B-14 after turning off County Road L-40 seven miles northwest of Sanborn when he lost control at 12:20 a.m. Sunday. The motorcycle slid on its side, across the center line and entered the south ditch. Deboer was thrown from the motorcycle and landed on the road. He told a trooper he thought a deer was on the road.”
Addison motorcyclist, identity unknown, killed, died at the scene of a collision after an alleged altercation ensued following a crash with another vehicle. An SUV was reported to be seen fleeing the location. Reported in the Daily Herald.
William Koenig, reported by the Austin Post-Bulletin, lost control of motorcycle, critical condition. Story details no longer online.
Brian Foreman, 37, Coralville, Iowa. Killed. Intersection collision at Mormon Trek and Rohret Road at 9:15 P.M. GazetteOnline.com reports the following, “The investigation, to date, has determined that a passenger vehicle attempted to make a left turn onto Rohret Road and collided with Foreman's motorcycle. Both driver has a green light, police said.”
David Junkins, 70, Cedar Falls, Iowa. Injured.
Motorcyclist from Sioux Falls near Mitchell went out of control after encountering a load of gravel that fell from a truck on Interstate 90 near Mitchell.
James Charles Rich, 61, Newhall, Iowa killed. 2006 Kawk motorcycle rolled after losing control on a curve while driving north on 27th Avenue near the 70th Street curve.