Fact from Fiction in California Wrongful Death Claim

A fatal apparatus accident last June in California has led to a civil claim being filed against the fire department. It has also led some to ask once again what is wrong with our justice system. The answer is: read the whole story, understand all the issues, and decide for yourself.

Evelyn Jean Courtney, 19, was killed on June 20, 2013 when the vehicle she was riding in collided with a Poway Fire Department engine responding on a medical run. The engine had a green light and collided a vehicle driven by Robbie Gillespie, 45, that ran the red light.

Gillespie, who had been released on bail hours earlier following an arrest on drug charges, was found be to impaired by methamphetamine at the time of the crash. He pled guilty to vehicular manslaughter charges and is awaiting sentencing.

Courtney’s estate has filed a civil claim against the city of Poway alleging that the driver of the apparatus, James Kleppel, was in part responsible for causing the crash. Attorney Michael Kinslow, who represents Courtney’s parents, acknowledges that Gillespie bears “some” responsibility for the accident but claims Kleppel was not properly certified to drive the apparatus and was not using a siren when he entered the intersection. Kinslow’s civil claim is a prerequisite to filing a suit in court.

So let’s review the facts. A person gets into a vehicle with a meth-impaired driver fresh out of jail on drug charges. The meth-impaired driver runs a red light and collides with a large emergency vehicle on its way to help someone in need. The passenger is killed. And now somehow the family of the deceased passenger believes that the folks who had the green light – the ones who were out trying to help save lives – should be required to pay damages.

Here is where the “tort reformers” usually start beating their chests proclaiming the end of the world is near when a suit could be filed on these facts.  I suppose I can see some of their frustration, but it is really not that bad. Making allegations is one thing. Proving liability is an entirely different matter all together… It will not require tort reform to allow justice to prevail in this case!!!

Let me explain.

The allegations are that the apparatus was being driven by someone who was not properly certified and that the truck was not using a siren when it entered the intersection.  Sounds bad.

We do not know for sure if the allegations are true or not. But even if we assume they are both true it does not mean the city is going to be liable for Ms. Courtney’s death. What’s more, when it comes to the fact the driver was not certified, what many don’t realize is that it is highly unlikely that the jury would even be allowed to consider that fact.

Why? Because unless Attorney Kinslow can show that the lack of certification actually played a role in causing Courtney’s injuries, it will likely be excluded from consideration by the jury at trial because it is irrelevant.

To get that issue before the jury Kinslow will have to prove that by being certified Kleppel would have somehow driven the vehicle differently than he did, and that that difference would have prevented the accident. Speculation in this regard is not enough. Without that proof – the fact that Kleppel was uncertified is IRRELEVANT… and irrelevant evidence is inadmissible.

Incidentally, Kinslow may be under the mistaken impression that the driver controls the siren, and that his failure to use the siren was attributable to the fact he was uncertified. The siren being operated by the officer takes the wind out of that argument. Furthermore, the non-use of the siren may itself prove to be irrelevant (and therefore inadmissible) since the engine had the right of way and did not need the siren to gain the right of way.

Don’t get me wrong – I am not suggesting that we don’t need to train and certify our drivers, nor that it is wise to respond without using a siren. The point is our liability system has tools in place to deal with what appears to be a patently frivolous claim.

Lastly, if a case like this were to ever get to a jury, the jury would have to “apportion” fault among all of the involved parties. In other words, the jury will assign a percentage of liability to each of the following:

  • Gillespie – for driving impaired and running the red light
  • Courtney – for getting in and staying in the vehicle with a meth-impaired driver
  • Kleppel – for whatever negligence he was guilty of (if any)
  • Poway  – for any negligence associated with allowing Kleppel to drive the vehicle

I’m thinking by the time they get done assigning percentages of fault to Gillespie and Courtney, there will not be much left in the way of percentages for Kleppel or the city. My prediction is that the case does not get anywhere near a jury.

Here is more on the story.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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