Tuesday, November 16, 2010

Just What Is So Offensive About David Weavering's Counterclaim?




Today's story could easily be slanted to take the popular course of condemning the filing of a lawsuit against a deceased minor. We all know how much anti lawyer sentiment was generated when Attorney Pfahler sued an eight year old boy for a skiing accident. LINK. (Incidentally, Pfahler did get a settlement.) While thoughts of the David J. Pfahler case initially clouded my thinking, a more balanced look at the David Weavering story seemed appropriate. By way of background, 48 year old David Weaving is being slammed in the media for "suing Stephen and Joanne Kenney because when he hit their 14 year old son, he was not wearing a helmet. A disgusting legal action considering Weaver is serving a 10-year sentence for manslaughter.

But is the suit frivolous? Stephen and Hianne Kenney actually sued David Weaving first. His claim is a counter suit for $15,000. Weaving claims that the boys parents should have insisted that the 14-year-old cyclist wear a helmet. If a helmet would have saved Matthew Kenney's life, is it a bad thing to bring the issue of parental safety into the public eye? Doesn't the defense typically plead "contributory negligence" if there is any evidence of fault on the plaintiffs?

Much is being made that David Weaving filed the counter claim while serving his time in jail. Does a person lose all legal rights to represent himself once imprisoned? The counter suit for $15,000 for failure to protect Matthew seems within the realm of reason if Weaving is somehow correct. Yet by being found guilty in December 2008 of manslaughter and other charges, the public sentiment is clearly against Weaving. Weaving can not possibly have a valid excuse for driving at 83mph in a 45mph zone at the time of this fatal Connecticut accident. While not relevant to any finding of guilt, Weaving's driving record reveals five previous occasions where he was caught allegedly driving under the influence of alcohol. (Not a sympathetic defendant by any means.)

Joanne Kenney told the press that the counter suit was compounding the original hurt. "It's a constant reminder. Enough is enough. Can you just leave us alone and serve your time?" Yet, the Kenneys are the one's who initially initiated the civil suit. While the media reports that the Kenneys are incurring legal fees, don't plaintiff's attorneys usually take such suits on a contingency basis? As for Weaving, without free legal services would he have anyone to help defend the civil suit? Connecticut allows free legal representation because he has little or no income. In his handwritten counter claim, Weaving says that had the Kenneys "complied with the responsibilities of a parent and guardian and the laws of this state and not allowed their son to ride his bicycle without a helmet ... this incident and Matthew's death would not have happened".

Clearly my sympathies and sentiments are with the Kenney family. I too would be offended that a convict was trying to deflect the blame for the death of my child. But if it is statistically proven to increase the risk of death or injury, than perhaps it is a valid counter claim. If it is not, let the court strike the counter claim. But in the mean time, the media needs to let the courts try this case and not the court of public opinion.

7 comments:

Anonymous said...

Nope! Still offended by the defendant's claim.

Anonymous said...

If it is all over $15,000 seems like such a waste. Dismiss the lawsuits and let the family grieve in peace.

Anonymous said...

Legal Pub, in order to illustrate just how absurd the notion is that a bike helmet can save anyone's life in the event of an 80 m.p.h. impact, perform an experiment at home.

You will need:
1 current model bicycle helmet,
1 aluminum baseball bat,
1 neighbor who hates your guts.

Strap on helmet, hand bat to neighbor.

When you wake up, take a physics course and pay particular attention to the relationship between dense objects in motion and relatively soft objects at rest.

. . . jackass.

Video Guy said...

I think this has to be looked at in the perspective of if a helmet would have mattered at the speeds documented combined with the weight of the car. At 80mph he could have killed an entire family seat belted in their vehicle and airbags applied.

Hopefully this lawsuit will be thrown out because of this FACT, and the family should sue him for twice the amount.

Pathologist said...

Appreciate the comments. What is unknown is the point of impact between the bike and the car. If the bike hit the handle bars at 80 mph but only the handle bars, the bike would accellerate in the vector directed by the car. This may cause the rider to fall from the bike but would not necessarily kill the rider unless he struck his head.

A forensic pathologist would be needed to examine the body and determine the cause of death and the more importantly the cause of the trauma to the head.

It is not a given that a human struck by an object at 80 mph dies. For example, if an 80 mph car strikes only a mans little finger, it will take off the finger but the man will otherwise not be harmed.

More facts are needed before any one dismiss the counterclaim as without merrit.

Video Guy said...

Legal,
I replied to you last message and the demon sent it back again…so I just re-sent it.

Corey Harris said...

Appreciate the comments. What is unknown is the point of impact between the bike and the car. If the bike hit the handle bars at 80 mph but only the handle bars, the bike would accellerate in the vector directed by the car. This may cause the rider to fall from the bike but would not necessarily kill the rider unless he struck his head. A forensic pathologist would be needed to examine the body and determine the cause of death and the more importantly the cause of the trauma to the head. It is not a given that a human struck by an object at 80 mph dies. For example, if an 80 mph car strikes only a mans little finger, it will take off the finger but the man will otherwise not be harmed. More facts are needed before any one dismiss the counterclaim as without merrit.