October 16, 2019


Consider this scenario.  You own a home in a new development, with well-kept homes and tidy lawns.  You chose this neighborhood because there was no crime, it had good schools and pleasant neighbors. You and your spouse work hard, and do all you can for your family, community and your neighbors. Life is good.

Then one day, you come home, park your car in your own driveway, go in your house and go about your business. A while later you look out your door and the police are in front of your house. When you go outside to find out what happened, you learn that two young kids on a bicycle with bad brakes - one 5 years old on the handlebars, and one 9 years old pedaling the bike - crashed into your jeep in your driveway after riding down the hill. You learn neither had helmets on and that they both suffered serious injuries with skull fractures. You find out that they were visiting their aunt and uncle who live on the other side of your development. You pray for the children and hope they recover quickly.

Then you get sued.

The summons and complaint claim you were negligent in parking your own car in your own driveway. You learn from your attorney about a case called  Boehm V. Telfer, 250 A.D.2d 975 (NYAD 3 Dept. 1998), where the Court stated, "It is well settled that the owners of improperly parked vehicles may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the Trier of Fact of the issues of foreseeability and proximate cause unique to the particular case."

You keep repeating that you parked in your own driveway, "How can I be at fault?" Then you learn the Plaintiff's lawyer suing you is claiming the two young kids were the victims of "Target Fixation" and they claim it's your fault because of how you parked your car.

Charles Mailloux of our office faced this scenario in September in Orange County in Letitia Beckles, as parent of D.A.W and D.W. v. Erik and Sarah Fred (Index No. 1460/14). In a case tried before Hon. Craig Brown, plaintiff's counsel called Gregory Witte, the owner of Forensic Crash Consultants who propounded his theory of Target Fixation to the jury:

"It's very common with children only because they lack life lessons. So, you see it a lot.

Examples of it are seen on TV or reality TV shows like America's Funniest Video. It's simply a person sees something, and they identify that it as a hazard or overly obsessed with whatever that may be. It's more susceptible to people riding two-wheel vehicles, such as bikes or motorcycles because they can lean and change your direction on a motorcycle or bicycle wherein a car it's actually putting your hands to the steering wheel. We see it more often there. For example, you can watch a little boy going down the road and he sees a tree or something and there is nothing else out there and he crashes right into that tree. My own son did it, crashed right into a mailbox. He had a whole thirty-foot-wide open road, found the mailbox. Laws have been enacted now because of this phenomenon. “You may have seen it recently, the move over law. That law is simply -- all it is people are so obsessed with what they are seeing that when they are looking, they don't realize that their eyes are steering to they are looking at which is a natural human response. We are not picking up that this is what we are doing. The next thing you know they go off the road and crash right into the police car. Across the country, hundreds of these accidents have occurred resulting in the death of many officers. That law has been expanded now because of what it is to protect the fire department, tow operators, police vehicles, anybody who is operating on the side of the road to make you think you should move over and give them space."

In a masterful cross-examination, Charles Mailloux won the case on his pointed questioning of Mr. Witte. The jury deliberated for an hour before dismissing the case. The transcript is worth a quick read.  

Read the transcript here.

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