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6-year-old boy on bicycle struck, killed by dump truck; Driver allegedly had 2 beers during lunch – $1.7 million settlement

A 6-year-old riding his bicycle was killed when he was struck by a truck.

The defendant was a company doing road work in a residential area. The child and his friend had stopped at an intersection. They intended to proceed across the northbound side.

While they were stopped, a dump truck pulled up to the eastbound side of the intersection and stopped. As the child proceeded to cross, the truck moved out into the intersection and took a wide right turn, striking the bicycle. The boy was dragged for a short distance before the truck came to a stop.

A reconstruction showed that the truck operator should have been able to see the two children at all times during the turn.

A forensic pathologist confirmed that the boy was conscious for a few moments as the truck passed over him before being killed by the driver’s side rear tire.

The operator of the truck was alleged to have consumed two beers between 12 and 1 p.m. during his lunch break, in violation of Department of Transportation rules and the corporate rules of the defendant. The accident occurred at approximately 3:15 p.m.

Plaintiffs’ counsel retained a toxicology expert who opined that while the operator would not have been showing visible signs of intoxication, he still would have been affected by the consumption of alcohol. The effect would have included confusion in situations requiring multi-task decision-making.

In this particular application, the truck driver simultaneously would have been trying to make a right-hand turn, view approaching traffic and keep a watch on the boys.

Separate counsel was retained by the parents as they were unmarried. An agreement was reached before litigation in terms of fee splitting and expense sharing.

An unsuccessful attempt was made to resolve the case through formal mediation, as the primary liability policyholder was unwilling to tender an amount that approached policy limits. The case was then litigated with defense counsel tendered by the primary carrier.

The primary carrier’s policy limits ultimately were offered through the excess carrier.

Type of action: Motor vehicle negligence

Injuries alleged: Death

Amount of settlement: $1.7 million

Date: May 2009

Attorneys: Brian C. Dever, Keches Law Group, Taunton; Brian Dias, Dassault & Zatir, Taunton (for the plaintiffs)

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