Crash court cases still in early stages
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By MARK GUNDERMAN mgunderman@chippewa.com
Monday, October 16, 2006 10:07 AM CDT
The first days and weeks after the Chi-Hi band bus crash were a time of mourning and healing. The questions of what happened and why, and who was at fault, were dealt with later.
Inevitably, lawsuits were filed, and the semi-truck driver, Michael Kozlowski, faces serious criminal charges. But the process of determining who is legally responsible for the tragedy is still in its early stages.
Much can happen in the various cases, and what happens in one can affect another.
The criminal case
Kozlowski is charged with five counts of homicide by negligent use of a motor vehicle and 29 counts of reckless driving causing injury or great bodily harm.
In all there are 13 misdemeanor charges and 16 felonies, including the five homicide charges.
Eau Claire County District Attorney Rich White maintains that by driving the semi involved in the accident with insufficient sleep, Kozlowski was putting the public in danger, constituting criminal negligence.
According to Wisconsin jury instructions for criminal negligence in a motor vehicle case, the state must prove, beyond a reasonable doubt that:
- The defendant’s operation of the vehicle created a risk of death or bodily harm;
- The risk was unreasonable and substantial; and
- The defendant should have been aware that his operation of the vehicle created the unreasonable and substantial risk.
The defense will not only fight the charge that any negligence on Kozlowski’s part was criminal in nature, but will likely try to show that the negligence of others contributed to the accident. The issue of the faulty bus brakes is sure to come up.
The criminal trial is scheduled to start April 16 in St. Croix County.
The civil cases
Civil lawsuits do not seek criminal penalties, but monetary damages, and the standards of proof are different than in criminal cases.
Criminal and civil cases are quite different from one another and involve separate processes.
It should not be assumed that the civil cases will ever go to trial.
“Over 95 percent of the cases I handle are resolved without lawsuits even being filed.” said Charles Jordan, a prominent Eau Claire personal injury lawyer.
However the bus crash cases are complex and it may be difficult to settle them all without some trial at some point.
“Cases end up having to be tried because there are important matters that need to be resolved,” Jordan said.
There are five civil cases filed. The plaintiffs in the cases are the estate of Branden Atherton, who was killed in the crash; Jessica McIlquham; Andrea Smith; Cassie Gast; and Brian Collicott. The family members of these people are also listed as plaintiffs.
The defendants are Kozlowksi; his employer, Whole Foods Market Group; Chippewa Trails, which owned and operated the bus; and the insurance companies covering these defendants.
Ultimately, issues to be determined include:
To what degree is Kozlowski and his employer, Whole Foods, responsible, and to what degree is Chippewa Trails responsible? What amounts would fairly compensate the injured parties and the families of the deceased?
Case connections
To some extent, the criminal case will have an effect on the civil cases. Kozlowski’s criminal case is likely to be resolved before the civil cases move very far forward.
Frank Tuerkheimer, a professor of law at the University of Wisconsin Law School in Madison, said sometimes a civil case may be formally put on hold so as not to interfere with processes in the criminal case.
“But that doesn’t happen automatically. Normally a DA would have to make a motion to hold a civil case in abeyance,” Tuerkheimer said.
The parties in the civil cases are intensely interested in what the criminal jury has to say. But a jury finding Kozlowski criminally negligent would not settle all the civil arguments over who bore the most responsibility.
With a criminal negligence conviction, Kozlowski could not re-argue in civil court that he is not negligent, Tuerkheimer said. But a conviction against Kozlowski does not convict Whole Foods and the insurance companies that cover them.
Occasionally multiple civil cases are consolidated so that a single jury hears the matter.
“It becomes a little tricky,” said Tuerkheimer. “The damages are different. In that sense, you are going to have separate trials.“
Another scenario is one of the civil trials going first. Suppose a jury in that first case finds the truck driver and his employer as the most responsible party. That finding influences — but does not decide — the other cases.
“It would affect the settlement posture,” Tuerkheimer said. That is, negotiations on settlement before trial would be affected.
Likewise, if that first jury is generous in its damages award to the plaintiffs, the parties in other cases will take notice.
“If the defendant is really socked, they are less likely to settle,” Tuerkheimer said.
At some point, criminal and civil jury verdicts will put the handwriting on the wall, and it becomes more likely that the remaining untried cases will settle.
This will all affect a number of unfiled cases. Families with children on Bus #1 have retained attorneys, but not filed suit. They may anticipate a settlement, which will be affected by which way the jury verdicts are going.
It’s a long, complicated process, likely to take years.
Greg Moore, district court administrator, said the target time for resolution of a civil case is 18 months. However, court officials realize that some complicated matters take much longer to work out.
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