Winston-Salem Journal | Contributory = negligence - it's 'an insurance company's dream'

Your exuberant 7-year-old asks you if it=92s OK to ride his = bike before=20 supper. You live in a quiet, residential neighborhood that = doesn=92t have=20 much traffic, so why not?

=93OK=94, you say. =93But don=92t go too far. Stay where you = can hear me.=94

A little while later, a nightmare unfolds. A Chevy Suburban = with a=20 drunk behind the wheel hits your child in an intersection. The boy = dies=20 later that night.

The drunk, who beat three previous DWI charges, is arrested. = You wait=20 for nearly a year before the man is sentenced to 18 to 22 months = in=20 prison. That=92s far less time than what you feel is just, but you = accept=20 it.

You try to move on with your life. A civil lawsuit is filed = against the=20 driver, his insurance company and others you believe contributed = to your=20 son=92s death.

A few months pass before the lawyers file answers to the = lawsuit -=20 legal documents that outline their defenses. They smack you right = in the=20 gut.

Translated from the legalese, they read: =93It=92s the = child=92s fault for=20 riding his bike in the street and your fault for letting him. = We=92re not=20 paying one thin dime.=94

All on file

If that scenario sounds heartless, that=92s because it is. And = it=92s=20 true.

You can read it for yourself. Every word can be found in the = case file=20 for Hayluri Beckles-Palomares v. Michael Logan, City of = Winston-Salem,=20 Flow Companies Inc. and Norman L. Moore.

Luly to her friends, Beckles-Palomares is the mother of Joshua=20 Palomares-Beckles, the 7-year-old who died May 20, 2006, after = being hit=20 by Michael Andrew Logan Jr. Logan pleaded guilty on March 5, 2007, = to=20 involuntary manslaughter, felony death by motor vehicle and DWI. = He was=20 sent to prison for the aforementioned 18 to 22 months.

The reason Beckles-Palomares sued Logan (and his insurance = company,=20 Nationwide Mutual) is obvious. Joshua=92s death was mostly = Logan=92s fault.=20 Flow Motors was named because one of its dealerships used the = street when=20 Joshua died as an overflow parking lot, and that restricted sight=20 lines.

The city of Winston-Salem was named because it didn=92t make = sure that=20 the bushes and trees along the street were trimmed enough to allow = unobstructed vision. Moore was named because overgrown vegetation = in his=20 yard created the blind intersection where Joshua was hit.

None of the defense attorneys would talk about the lawsuit, = which asks=20 for =93in excess of $10,000.=92=92 Nor would they discuss their = answers, which=20 were filed between Nov. 16 and Jan. 16.

=93Perhaps it=92s best to do the commenting in court when = it=92s litigated,=94=20 said Ronnie Craig, an attorney from Charlotte who=92s defending = Moore.

Blame the victim

With or without additional comment, the responses to the = lawsuit say=20 plenty.

First, all of the defendants=92 attorneys vigorously deny that = their=20 clients were negligent. Next, they all point the finger at the=20 co-defendants, mostly Logan. The city, through hired counsel Jim = Morgan,=20 also claimed sovereign immunity, which basically means that you = can=92t sue=20 local government.

Standing out in the answers, though, is the fact that the = defendants=20 all try to blame Joshua and his mother. Joshua, they say, failed = to=20 maintain a proper lookout and rode into the intersection without = stopping.=20 His mother was to blame because she didn=92t teach her son about = traffic=20 laws.

Never mind that Joshua was 7 years old and was within 3 feet of = the=20 curb, or that Logan was drunk and driving on the wrong side of the = road.

=93By way of affirmative defense, Defendant Logan pleads the = contributory=20 negligence of the decedent Plaintiff Joshua Franklin = Palomares-Beckles,=94=20 wrote Rodney Guthrie, Logan=92s attorney.

Outrageous though it may be, the blame-the-victim defense might = work.=20 If a jury in North Carolina decides that you are even a tiny bit = at fault=20 in this sort of case, you are entitled to nothing under state = law,=20 under a concept called contributory negligence.

=93In general, I=92d say contributory negligence is an = insurance company=92s=20 dream,=94 said Walter Holton Jr., the attorney who filed the = lawsuit on=20 behalf of Beckles-Palomares.

That=92s pitiful. Instead of offering a reasonable settlement = (putting=20 money in a college fund for Joshua=92s siblings, perhaps?) the = defendants=20 attack a dead child and his grieving mother.

■ Scott Sexton can be reached at 727-7481 or at ssexton@wsjournal.com.

Posted on 02/24 at 12:33 PM

Downright evil! What it will take is for at = least=20 several state legislators to suffer such a lost, then some action = will=20 take place. Insurance companies are the slime of the earth and our = so-called judicial system allows it. This is the type of situation = that=20 drives some normally law-abiding citizens to becoming a = vigilante.

weh

Posted on 02/24 at 09:08 AM

The ONLY at fault here are Logan and mother = Palomares,=20 sue Logan and his insurance company, going for the lottery, = another story.=20 Did the mother not know of Flows overflow lot,the city hadn't = maintained=20 the bushes, Moores vegetation, before the accident? Streets/Roads = are for=20 insured automobiles, not bicycles, esp bicycles with 7 year old = kids!=20 Lately, I must take agressive action daily, to avoid having an = auto=20 accident, because of bicycles riding in right of ways on our = highways. RIP=20 Kid.

doggone

Posted on 02/24 at 09:05 AM

Parents do have to take responsibility for = their=20 children's actions.

Dwayne

Posted on 02/24 at 08:09 AM

Right out of the state of KOOKIFORNIA. That's = how we=20 ended up with tags on things that say weird stuff - like 'don't = use this=20 hairdryer while sleeping'. Forty years ago we didn't put label on = things=20 to save the stupid. It was called common sense. If you did = something=20 stupid and died, you removed a little more stupid from the gene = pool. Now,=20 we have labels. Now we are swimming in stupid. That's how a drunk = driving=20 on the wrong side of the road can get off scott-free. Welcome to = the=20 liberal world.

JHM

Posted on 02/24 at 06:43 AM

This is a shame, but I expect it from the = insurance=20 companies and I fault the representatives of NC that cater to the=20 insurance industry. The elected lawmakers do not do their job. = They are=20 too busy taking some silly actions such as apologizing for things = that=20 happened 100s of years ago or providing for their own benefits. = Shame on=20 the lawmakers for not making laws that are beneficial to the = public.

voter

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