Suing the Victim: Motorist Goes After Parents of the Boy He Struck and Killed

November 15, 2010 - 6:35 AM

Suing the victim

This undated photo released by Joanne Kenney shows her late son Matthew Kenney, who was struck and killed while riding a bicycle in 2007. The driver who struck the boy, who was not wearing a helmet, is suing the boy’s parents for negligence. (AP Photo/Courtesy Joanne Kenney)

Hartford, Conn. (AP) - A driver who's serving a manslaughter sentence for striking and killing a 14-year-old boy is suing the victim's parents, blaming them for their son's death because they allowed him to ride his bike in the street without a helmet.

Matthew Kenney's parents, Stephen and Joanne, sued 48-year-old driver David Weaving shortly after he was sentenced last year to 10 years in prison, accusing him in Waterbury Superior Court of negligence and seeking more than $15,000 in damages.

Weaving, who has a history of drunken driving convictions, responded months later with a handwritten countersuit accusing the Kenneys of "contributory negligence." He's also seeking more than $15,000 in damages, saying he's endured "great mental and emotional pain and suffering," wrongful conviction and imprisonment, and the loss of his "capacity to carry on in life's activities."

"It drags the pain on," said Joanne Kenney, a stay-at-home mom with two other children, ages 2 and 13. "It's a constant reminder. Enough is enough. Can you just leave us alone and serve your time?"

Prisoners nationwide file tens of thousands of court actions a year on allegations ranging from wrongful convictions to poor jail conditions to civil rights violations, according to federal judiciary data. But lawyers and victim advocates say it's not often that convicted criminals sue victims and their families.

Prosecutors say Weaving was recklessly passing another car at about 83 mph in a 45-mph zone when his car hit Matthew Kenney on Route 69 in the Waterbury suburb of Prospect on April 27, 2007. A jury convicted him in December 2008 of manslaughter and other crimes.

Weaving has five drunken driving arrests since the late 1990s on his record, four of which resulted in convictions. He was not charged with drunken driving in the Kenney case.

The Kenneys say Weaving's license should have been permanently revoked in 1999 under state law because of the multiple convictions. They're seeking permission from the state claims commissioner to sue the Department of Motor Vehicles and its commissioner, Robert Ward.

The department has acknowledged it made a mistake in not revoking Weaving's license and said it has taken steps to prevent similar problems.

Matthew, a well-liked seventh-grader who played several sports, suffered severe head and internal injuries, broken bones and lacerations. He was declared brain dead the next day.

Weaving insists he was driving the speed limit and wasn't acting recklessly when he passed another car in a legal passing zone and Matthew suddenly appeared in the road around dusk in wet, foggy conditions. He alleges Matthew and some friends were jumping their bikes off a ramp at the end of a friend's driveway and landing in the middle of the two-lane road.

In his lawsuit, Weaving wrote that had the Kenneys "complied with the responsibilities of a parent and guardian and the laws of this state and not allowed their son to ride his bicycle without a helmet and to play out in the middle of Rt. 69 ... this incident and Matthew's death would not have happened."

Joanne Kenney, 42, calls Weaving's claims "unbelievable." While she and her husband are paying an undisclosed amount of attorney's fees, Weaving is filing his claims for free because he's considered indigent; a judge has waived $500 in fees so far.

"I just think it's crazy that they have the ability to do this behind bars," she said. "I think inmates have too many rights. They're the ones who committed the crimes, not us. And we're the ones who suffer more."

The federal government and several states, not including Connecticut, have laws and regulations requiring inmates to pay lawsuit fees as part of efforts to deter frivolous and malicious lawsuits.

Perpetrators don't often sue victims, said Jeff Dion, director of the nonprofit National Crime Victim Bar Association. Its database shows about 485 cases of perpetrators suing victims out of more than 12,000 civil cases dating to the 1980s, he said.

Perpetrators who sue often do so in an attempt to get victims and their families to give up on their lawsuits, Dion said. They generally lose their cases.

"It can be very distressing to victims' families and make them say, 'I can't deal with this,'" Dion said. "Justice can bring a sense of accountability and healing, but sometimes it's not a very pleasant experience."

He noted the case of "America's Most Wanted" host John Walsh, whose 6-year-old son, Adam, was kidnapped from a department store at a Florida mall and killed in 1981. Walsh wrote in his book "Tears of Rage" that he and his family dropped a lawsuit against the store and the mall after being put through difficult depositions and facing questions about their own actions by the defendants' lawyers.

"So, in the end, they broke us. We folded," Walsh wrote.

Attorney Andrew Cates calls Weaving's countersuit a part of the legal process. Cates is representing Weaving in appeals aimed at overturning his convictions -- which were recently upheld by the state Appellate Court -- but is not involved with the lawsuit involving the Kenneys.

"I can see their side of it. I'm a parent," Cates said. "But I can also see the other side of it. If you're driving down the street and your car makes contact with a pedestrian and you think it's the pedestrian's fault, you have to raise the issue."

State Attorney General Richard Blumenthal -- just elected as the state's next U.S. senator -- and State Victim Advocate Michelle Cruz say they're appalled at Weaving's countersuit.

"Blaming the victim is just offensive," Cruz said. "It takes obviously a very unique individual to go after the family of a deceased child. I would say it's an unsound lawsuit."

Matthew was a popular student at Long River Middle School, a few miles from the accident site. A memorial Facebook page in his honor has more than 600 members.

"He was a loving kid," Joanne Kenney told the AP. "He was a caring kid. He was a helping kid. He was an honors student. He played sports. He was full of life. He had so much to give."