A child (or anyone) handling a gun improperly can kill themselves without anyone else being involved.
On the other hand, riding a bicycle, even without a helmet, is almost never fatal unless a motor vehicle hits you.
Unless the kid rode his bicycle out into traffic, such that any driver could have hit him, the death is one hundred percent the fault of the driver.
It might also be pointed out that had the kid survived, the killer driver and his insurance company would likely be on the hook for vastly higher sums. Death is cheap compared to major trauma.
Does that comment have any citations to any other sources? Because while that’s a perfectly valid interpretation of what may be happening, I’m rather reluctant to decide the story must be wrong because an anonymous commenter said so.
Especially when the story includes details such as the judge waiving $500 in filing fees. AFAIK, there are no fees for filing an answer to a suit against you, so where did the $500 figure come from? Did the writer just make it up?
ETA: Here’s another article that makes it clearer that this is a countersuit, not just an answer to the parents’ original suit. Including quotes from Weaver’s lawyer (who is apparently not representing him in this suit).
Would a helmet really have made much of a difference in this case? The article claims he struck the boy with his car going 80mph…that’s pretty damn fast.
Depending on the law of the state, there may be a presumption of contributory negligence for failure to wear a helmet. That means the parents would have to prove that a helmet wouldn’t have made any difference (which probably wouldn’t be that hard, but is still a hurdle).
No, the unsourced comment indicates it’s an answer, which is completely different.
A countersuit would be a retaliatory claim brought against the plaintiff by a defendant for an unrelated incident. A counterclaim is a retaliatory claim brought against the plaintiff by a defendant for the same incident. Unless he hit the same kid twice, it’s a counterclaim, not a countersuit.
Except the hot coffee claim had merit, and this, on the surface doesn’t. If you fancy a little wager on this, I’ll be willing to bet anything you want this doesn’t see a jury.
Ok, but Weaving’s still trying to sue the parents for $15k, claiming it’s their fault (or at least partially their fault) the kid was killed, not his, correct? Because that seems to be the main point of both articles, and the subject of the pitting. Whether that’s a “countersuit” or “counterclaim” doesn’t change the basic facts of the article, does it?
What, I’d like to know is grounds for the parents’ $15k suit. If his funeral cost them that amount, or they had to pay that for an ambulance and ER after the accident, that makes sense to me.
It seems to be fact, not speculation, that the driver was doing 80mph. Would a helmet really have made much difference? That’s fast.
Isn’t serving a 10 year sentence how the driver pays for his crime? I understand the difference legally between criminal and civil actions, but is it a way to punish someone twice for the same crime?
Well, sort of. If it’s a separate lawsuit, the outcome is independent of whatever happens in the parents’ original suit against him. That means Weaving might win a judgment he can actually collect, but the parents win one they can’t collect (since he has no money, and nothing to garnish).
If it’s a counterclaim, the same jury* will determine the merits of the original claim and Weaving’s claim and reach a monetary judgment accordingly.
So they might find in favor of the parents for $15k on the original claim, and in favor of Weaving for $2k, and the judge will almost certainly order that the latter amount simply be deducted from the judgment against him, rather than actually making the parties pay the full amount of each judgment. If Weaving’s lawsuit was separate, the judge couldn’t do that, since it would be tried separately.
Winning a lawsuit and collecting on that suit are two very different things. If you sue a large corporation and win, and there’s no appeal, they’ll probably just pay the judgment. However, if you sue Joe Blow and, you’ll probably have to go get a garnishment order to collect, which means months or years of additional litigation. So, if Weaving isn’t insured, it’s by no means a sure thing that the parents actually collect, even if he has the assets to pay.
*assuming it gets to a jury. As noted above, “contributory negligence” is not a claim that can be asserted in a complaint; it’s a defense to a claim of negligence. villa’s prediction that Weaving’s claim never makes it to a jury is almost certainly accurate, unless there’s more to it than that.
The 10 year sentence is how the driver repays society for his crime. The civil judgment is how he would repay the victim (or in this case, the parents) for his negligence.
Obviously, it’s another punishment, in a sense, but in legal terms it’s restitution. The parents can only collect up to the amount of their damages. Now, their damages can include pain and suffering, and that’s where the real money is in lawsuits, but from the point of view of the law that’s still restitution.
I’m no lawyer, and I hope someone can correct me if I’m wrong, but I seem to recall a law generally known as the “Eggshell Skull” rule. It states that no matter the vulnerability of the victim, even if his skull was as thin and brittle as an eggshell, the fault is of the person who harm that victim even if he would not have otherwise harmed a person with a normal skull. In other words, it doesn’t matter what the state of victim is, what matters only is that harm was caused to him. It would seem to apply in this case: that guy shouldn’t have hit the kid, whatever happens, it’s his fault, even if she was blindfolded and juggling fiery knives