Driver that struck teen suing dead boy’s family

BY TRACY MCLAUGHLIN
FIRST POSTED: FRIDAY, APRIL 25, 2014 09:50 AM EDT | UPDATED: FRIDAY, APRIL 25, 2014 08:00 PM EDT

Source: TorontoSun

Brandon Majewski died after being hit by a car while riding his bike on Oct. 28, 2012.

Brandon Majewski died after being hit by a car while riding his bike on Oct. 28, 2012.

ALCONA, ONT. – Still in the throes of agony from losing their son in a vehicle crash, the parents of young Brandon Majewski are now reeling after they learned the woman who struck and killed him is suing their dead child.

“I feel like someone kicked me in the stomach — I’m over the edge,” the dead boy’s father, Derek Majewski, said. “Sometimes, it makes my blood boil.”

As he sits in his immaculate Alcona home, near the shores of Lake Simcoe and roughly 90 km north of Toronto, sifting through piles of photographs of his son, the heartache shows on his face and he can hardly contain his tears as he speaks.

Just down the road, on the side of a quiet country stretch of Innisfil Beach Rd., is a memorial complete with a bicycle, flowers and photographs of his son, Brandon.

The spunky, handsome, 17-year-old bike enthusiast was out with his two buddies on Oct. 28, 2012 when they hopped on their bicycles to go for hot dogs on a drizzly, dark night around 1:30 a.m.

“I know they should not have been out there that late,” his father said. “But they are good kids.”

Brandon was struck from behind by an SUV and killed while his friend Richard McLean, 16, was seriously injured with a broken pelvis and other bones. His other pal Jake Roberts, 16, was knocked off his bike but sustained only scratches.

Now the driver of the SUV, Sharlene Simon, 42, a mother of three, formerly from Innisfil, is suing the dead boy for the emotional trauma she says she has suffered. She’s also suing the two other boys, as well as the dead boy’s parents, and even his brother, who has since died. She’s also suing the County of Simcoe for failing to maintain the road.

Even the family’s lawyer is in shock.

“In all of my years as a lawyer, I have never seen anyone ever sue a child that they killed,” Barrie lawyer Brian Cameron said. “It’s beyond the pale. I just couldn’t bring myself to tell them on the phone.”

After a face-to-face meeting Tuesday, the parents and step-parents left his office almost staggering in disbelief.

“I’m devastated, I’m in shock,” said Brandon’s mother, Venetta Mylnczyk, a dental assistant who is drowning in sorrow. “She killed my child and now she wants to profit from it? She says she’s in pain? Tell her to look inside my head and she will see pain, she will see panic, she will see nightmares.”

Her voice shaking with emotion, the mother recalls her last words with her son.

“I said I love you … he said, ‘I love you, too, mom,’ and off he went with his friends,” Mylnczyk said. “At least I have that … but for this woman to be so selfish, to claim she is the one suffering but we are the ones living the nightmare … her children are still living.”

“It blows my mind,” Brandon’s step-mom, Lisa Tessier, said. “We are all devastated. This is so cruel.”

In a statement of claim filed with the court, Simon is claiming $1.35 million in damages due to her psychological suffering, including depression, anxiety, irritability and post-traumatic stress. She blames the boys for negligence.

“They did not apply their brakes properly,” the claim states. “They were incompetent bicyclists.”

Simon’s lawyer did not respond to a request for comment from the Toronto Sun Friday.

Brandon’s father shakes his head.

“They’re kids!” he gasps. “And they have a right to make mistakes … it was a wet, dark road — what about slowing down?”

He insists the reflectors on the bikes would have been visible.

A South Simcoe Police report shows Simon admitted that she was driving at 90 km/h in an 80 km/h zone on the two-lane road. She claims she didn’t see the boys or any of the orange-red pedal reflectors. The impact of the collision cracked the windshield of her SUV, dented the bumper, a headlight was busted, the roof where Brandon hit was dented and scratched and a side mirror dangled by its wires.

The report also states: “No breathalyzer was performed. Although police say no alcohol was suspected and no charges were laid.

Simon’s husband, Jules Simon, a York Regional Police officer, was driving behind his wife that night, but little is mentioned about him as a witness in the police report. He pulled over when Brandon was struck and shortly after drove his wife home in his vehicle.

Two hours later, after Brandon lay dead in hospital from multiple traumatic injuries, police knocked on the door of the Majewski’s home.

The dogs began to bark. It was late.

“I knew,” says his father, and his voice breaks again. “I had a gut feeling.”

Therapy, medication, even booze, doesn’t dull the pain.

And then, six months after the funeral, he awoke to find his second son Devon, 23, who had just graduated as a paralegal, laying in his bed, blue and dead, after popping too many pills and drinking too many shots. Not an intended suicide, they are certain — he was just trying to stifle his grief.

“This has ripped our family apart,” says Majewski. “And now this woman has the gall to try to profit from our dead child she killed? Profit from another boy who was almost crippled?”

He flips again through the family photographs. Happy times of fishing, dirt biking, swimming, eating birthday cake, laughing. He chuckles for a moment when he remembers all the bikes his son rebuilt — sometimes he would sneak the parts right into his bedroom, and shine them till they gleamed. All another world away.

“This thing haunts us,” he says. “It will never stop haunting us.”

Cameron has launched a routine lawsuit against the driver, mainly for medical and funeral costs on behalf of the boys and their families. He alleges Simon was speeding and may have been intoxicated and talking on her cellphone.

“Sharlene Simon failed to take reasonable care to avoid a collision which she saw or should have seen was likely to occur,” his claim states. “She operated the motor vehicle while she was intoxicated.”

None of the allegations have been tested in court.


TakeAways

The notion of an “incompetent bicyclist” is interesting. It calls into question whether the rider of the bicycle not only perform his bicycle maneuvers correctly, but there might just be a question in future cases regarding whether the cyclists had bicycles equipped with whatever required reflectors or lights were required by law. Is there ever a situation in which both the motorist and the cyclist are tested for either drug or alcohol impairment?

Inside the cycling community there has been a bit of imperfect wisdom regarding the notion of BUI. This might become a test case (at least in Canada) for the notion that yours is the only safety in jeopardy when you are riding a bicycle. This driver is seeking to establish that she too is a victim when the behavior of a cyclist (perhaps dressed in non-reflective clothing, with an improperly equipped bike, suddenly shows up on a roadway at a time of night when those elements would be essential in warning the driver (especially when approaching a curve, where the headlights lag behind the cars movement) of an obstacle in the roadway.

This would certainly have an impact on Urban Cyclists who ride ninja-style (i.e. sans reflectors, lights and possibly BUI). In a society where we are aiming to have bicycles treated as legitimate forms of transportation it could be foreseen that someone would ask that all vehicles in a collision be operated in as safe a manner as the law requires. If these kids were out drinking beers and riding on the side of a high speed roadway it would certainly impact this case.

One of the things that irritates motorists most is that they are usually unaware of the presence of a bicyclist until it is too late. The closing rate alone of cars to bicycles requires expert reflexed and a very well equipped automobile to avoid a collision. Bicycles being ridden at night are especially vulnerable and this problem of avoiding them while driving could easily mean that a driver in attempting to avoid a cyclist noticed at the last moment in the dark swerves into oncoming traffic on the other side of the yellow line and hits another car head on.

So much for the cyclist being “the only one with skin in the game“.

Background Reading

Here is some additional information (taken from the Chicago ChainLink Forum):

Reply by Reboot Oxnard 3 hours ago

Not just to be contrarian and ruffle some feathers on the board but also to point out that prejudice and the tendency to rush to judgment on limited information are just as much a problem amongst the cycling community as the rest of the world: what do we know about the accident? I did a little digging and found…

  • The accident occurred at 1:30am on a Sunday morning, a couple of days before Halloween in an area a couple of miles outside of a small community in rural Ontario.
  • The road where the accident occurred is a paved two-lane rural road with gravel shoulders, located pretty much in the middle of nowhere. The speed limit is 80kph (50mph) and it had been raining earlier, the road was damp. A street view of the accident site, looking east, and a street view of the accident site, looking west.
  • There was little ambient light. It was a cloudy night and there are no street lights in the area. There is no human development in the area, either, so no porch lights or parking lot lights to brighten things up a bit.
  • The cyclists (a 17 year old and two 16 year olds) were riding bikes with no lights of any kind. Two of the bikes had “minimal” reflectors (on the pedals), one had no reflectors. They were wearing dark clothing and were riding three abreast in the road. They were not wearing helmets.
  • Reports are that the driver was traveling at approximately 90kph (55mph) at the time of the accident, which the driver has acknowledged.
  • Despite rumors to the contrary, the driver was administered a field Breathalyzer exam at the scene and had “zero” alcohol in her system.
  • The father of the victim has admitted that the boys made some mistakes but believes they were entitled to do so.
  • The police investigation report is 26 pages long and lays most of the blame on the cyclists and poor visibility. The police and the prosecutors both concluded that there were no grounds to charge the driver with any criminal complaints.
  • The family of the dead cyclist complained that the investigation was poorly handled, principally because the driver’s husband is a police officer. He is, but he works for a different department and had never met the cops who ran the investigation.
  • After the family complained, the accident and the subsequent investigation were reviewed and reiterated. It might be a ‘cop-wash’ but, if it was, it was a thorough one.

Not every cyclist is a blameless saint and the sword of justice cuts both ways. Sometimes it can make a hash of things. The victim’s father found out about the lawsuit during a meeting with the attorney who is representing him in a lawsuit he previously filed against the driver. Having decided to sue the officially exonerated driver on behalf of the officially blamed cyclist, it’s hard to imagine Dad being “gobsmacked” when the driver counter-sues unless he has an idiot for an attorney who didn’t explain the possible outcomes to him.

I’m not sticking up for the driver – if you run something down in the middle of the road you bear at least a portion of the blame for the accident but, clearly, the cyclists were doing just about as much wrong as it was possible to do and the story we were given is incomplete and slanted and intended to inflame, not inform.

  1. http://toronto.ctvnews.ca/driver-sues-estate-of-ontario-teen-she-st…
  2. http://fullcomment.nationalpost.com/2014/04/24/christie-blatchford-…
  3. http://www.simcoe.com/news-story/4486025-woman-who-struck-and-kille…
  4. http://www.thebarrieexaminer.com/2014/04/26/woman-who-held-the-hand…
  5. http://www.ottawacitizen.com/news/national/Driver+fatal+collision+w…
  6. http://www.treehugger.com/bikes/woman-sues-parents-cyclist-she-kill…
  7. http://www.huffingtonpost.com/2014/04/27/sharlene-simon-brandon-maj…
  8. http://www.usatoday.com/story/news/nation/2014/04/26/newser-driver-…
  9. http://www.thebarrieexaminer.com/2014/04/25/driver-that-struck–alc…

At least one respondent to the ChainLink Forum thread on this topic had this to say:

Reply by Sarah D.1 hour ago

I’m interested particularly in this line:
“clearly, the cyclists were doing just about as much wrong as it was possible to do”

…Really? Riding without helmets (which is legal), wearing dark clothing (which is legal) and taking the lane when they had only a gravel shoulder to choose from instead (which is legal).

Sounds to me like they simply didn’t have lights – which I am not sure is legal or illegal there. That’s ONE thing they did wrong. But if the SUV had headlights, then she could have seen them and stopped, had she been driving at a reasonable speed for the stated conditions. Also, in any jurisdiction, their braking ability should have no bearing here. 

The other thing that has not been mentioned is that neither the driver, NOR HER POLICE HUSBAND, were the ones who called 911 to help the victims. They left the scene while another witness helped the injured and dying children.

Wow, Reboot. Just wow. With friends like these…

Actually, Sarah is probably incorrect in a few of the claims she makes. Brakes and what makes them suitable is clearly defined in law:

http://www.mto.gov.on.ca/english/pubs/cycling-guide/section5.0.shtml

HTA 62(17) – Lights

a bike must have a white front light and a red rear light or reflector if you ride between 1/2 hour before sunset and 1/2 hour after sunrise and white reflective tape on the front forks and red reflective tape on rear forks. Set fine: $20.00

HTA 75 (5) – Bell

a bike must have a bell or horn in good working order. Set fine: $85.00

HTA 64(3) – Brakes

a bike must have at least one brake system on the rear wheel. When you put on the brakes, you should be able to skid on dry, level pavement. Set fine: $85.00

HTA 104 – Helmets

Every cyclist under the age of eighteen must wear an approved bicycle helmet. Parents or guardians shall not knowingly permit cyclists under sixteen to ride without a helmet. Set fine: $60.00

HTA Reg. 630 – Expressways

Bicycles are prohibited on expressway / freeway highways such as the 400 series, the QEW, Ottawa Queensway and on roads where “No Bicycle” signs are posted. Set fine: $85.00

Visibility

Visibility can be reduced in bad weather. Wear bright outer clothing so that drivers can see you better.

Travelling in groups

There are a few safety tips to keep in mind when travelling in groups.

Ride in single file on two-lane roads or when traffic is heavy on multi-lane roads.

Keep at least one metre apart from other cyclists in the group and keep several lengths apart when going downhill at high speed.
If you are travelling in a large group, break up into smaller groups of about four to six. Keep about one kilometre between groups to allow traffic to pass.

http://www.newyouth.ca/daily-life/buses-cars-bikes/what-are-bike-laws-ontario

These laws are part of the Highway Traffic Act (HTA). As a cyclist, you need to know:

  • Your bike is a vehicle. If you are riding it, you have rights and responsibilities on the road.
  • You have to stop at red lights.
  • You have to stop at stop signs.
  • You have to stop for pedestrians.
  • You have to ride in the same direction as traffic.
  • You can ride in any part of a lane. You do not have to move if you do not feel safe.
  • Stop for school busses when they indicate.
  • Stop 2 metres behind streetcar doors
  • You can’t ride on the highway
  • You need to ride on the road and avoid sidewalks. There are bike lanes on some streets, but they may be unsafe, so try to be aware while you are riding. If you feel unsafe, ride on the sidewalk.

All bikes must have..

You also need to make sure you have all of these things on your bike (or on you).
In Ontario, all bikes, by law, must have:

  • A bell or horn.
  • A front light and back light (or front and back reflector strips)
  • Proper brakes.
  • If you are under 18 years old, you have to wear a helmet.

http://www.cycle-helmets.com/canada_helmets.html

Mandatory bicycle helmet laws in Canada

Four Canadian provinces – British Columbia, Ontario, New Brunswick and Nova Scotia – passed legislation mandating either all-age or under-18 helmet use in the period 1995 to 1997. Alberta made helmets mandatory for cyclists under 18 years old from May 2002 (see below), an all-age mandatory helmet law was introduced on Prince Edward Island in 2003, and Manitoba introduced legislation for <18 mandatory helmets in May 2013 (see below).

In 2013, different bike helmet laws applied in each Canadian province and territory:

  • Alberta: Minors
  • British Columbia: All ages
  • Manitoba: Minors
  • New Brunswick: All ages
  • Newfoundland and Labrador: No law
  • Northwest Territories: No law
  • Nova Scotia: All ages
  • Nunavut: No law
  • Ontario: Minors
  • Prince Edward Island: All ages
  • Quebec: No law but education programs available
  • Saskatchewan: No law but education programs available
  • Yukon: No law

In May 2013, the British Medical Journal published Helmet legislation and admissions to hospital for cycling related head injuries in Canadian provinces and territories: interrupted time series by researcher Jessica Dennis et al from the University of Toronto, finding minimal injury benefit from the enforcement of mandatory bicycle helmets in affected Canadian provinces.