STATE OF INDIANA ) IN THE MARION COUNTY SUPERIOR COURT ) SS: COUNTY OF MARION ) CAUSE NO.:

Transcription

1 STATE OF INDIANA ) IN THE MARION COUNTY SUPERIOR COURT ) SS: COUNTY OF MARION ) CAUSE NO.: KURT WEEKLY ) and MARY MILLS ) ) Plaintiffs, ) ) vs. ) ) DAVID M. BISARD, the CITY OF ) INDIANAPOLIS, and the ) INDIANAPOLIS METROPOLITAN ) POLICE DEPARTMENT ) ) Defendants. ) COMPLAINT FOR DAMAGES Comes now the Plaintiffs, Kurt Weekly and Mary Mills, by counsel, and for their cause of action against the Defendants, David M. Bisard, the City of Indianapolis, and the Indianapolis Metropolitan Police Department (IMPD), hereby states as follows: GENERAL ALLEGATIONS 1. Plaintiffs Kurt Weekly and Mary Mills were severely injured in a motor vehicle collision which is the subject matter of this case, on August 6, 2010, in the city of Indianapolis and in Marion County in Indiana. 2. Plaintiffs Kurt Weekly and Mary Mills were residents of the city of Indianapolis and of Marion County in Indiana at the time of the motor vehicle collision. 3. Plaintiffs Kurt Weekly and Mary Mills were companions and significant others on August 6, 2010, and are now legally married. 4. At all times relevant herein, the IMPD and the City of Indianapolis are governmental entities performing their governmental functions in the city of Indianapolis, 1

2 Indiana. 5. IMPD Officer David Bisard was prior to, and on the date of the collision, August 6, 2010, an agent of IMPD and the City of Indianapolis, and at all relevant times herein, acting in his capacity as a police officer. 6. At approximately 11:21 a.m. on Friday, August 6, 2010, Plaintiff Kurt Weekly was driving his motorcycle on E. 56 th Street, in Indianapolis, Indiana. Plaintiff Mary Mills was a passenger on Plaintiff Kurt Weekly s motorcycle, and two other motorcyclists, George Burt and Eric Wells, accompanied the Plaintiffs. All were employees of the nearby Department of Defense and were on their lunch break at the time of the collision. 7. Plaintiff Kurt Weekly, with Plaintiff Mary Mills as his passenger, was traveling westbound in the left hand straight through lane, and was properly stopped at the traffic light and near the intersection of Brendon Way S. Drive, Indianapolis, Indiana, when he was struck by a police vehicle driven by IMPD Officer David Bisard. 8. IMPD Officer David Bisard was en route to a non-emergency situation for which he had not been dispatched nor asked to assist in, when he struck the Plaintiff Kurt Weekly, the Plaintiff Mary Mills, and Eric Wells. 9. IMPD Officer David Bisard was drunk when he struck the Plaintiff Kurt Weekly, the Plaintiff Mary Mills, and Eric Wells. 10. IMPD Officer David Bisard was traveling with his with police vehicle sirens and lights activated when he struck Plaintiffs Kurt Weekly and Mary Mills, and Eric Wells. 11. IMPD Officer David Bisard was driving while distracted and while using his police vehicle computer for non-police business when he struck the Plaintiff Kurt Weekly, the Plaintiff Mary Mills, and Eric Wells. 2

3 12. IMPD Officer David Bisard swerved to get into the left turn lane at the intersection of E. 56th Street and Brendon Way S. Drive to pass the stopped vehicles, when he struck Plaintiff Kurt Weekly, Plaintiff Mary Mills, and Eric Wells, at approximately 11:21 a.m. 13. Eric Wells died and Plaintiffs were severely injured as a result of the collision. 14. The City of Indianapolis and IMPD committed unequivocal breaches in protocol regarding the collision investigation and the handling of the collision evidence, and in particular, failed to properly test the blood alcohol content of IMPD Officer David Bisard. 15. The breaches in evidence handling and investigation protocol have led to the inadmissibility of crucial evidence and to the dismissal of several criminal charges against IMPD Officer David Bisard. 16. The widespread media attention and public dissemination of information concerning the collision and its aftermath continues to date. COUNT I DEFENDANTS NEGLIGENCE CAUSING PERSONAL INJURIES TO PLAINTIFF KURT WEEKLY 17. Plaintiff Kurt Weekly reasserts, realleges and incorporates numerical paragraphs one (1) through sixteen (16) herein by reference. 18. On August 30, 2010, Plaintiff Kurt Weekly provided the Office of the Mayor and Defendants with his timely Tort Claim Notice of Kurt Weekly against the City of Indianapolis and IMPD for negligence causing personal injuries, pursuant to Ind. Code The Office of the Mayor and Defendants have not favored Plaintiff Kurt Weekly with the courtesy of a response to the Tort Claim Notice of Kurt Weekly dated August 30, 2010, and therefore have required Plaintiff Kurt Weekly to file this complaint. 20. As described in Plaintiff Kurt Weekly s Tort Claim Notice of Kurt Weekly dated August 30, 2010, the collision on August 6, 2010 was directly and proximately caused by 3

4 Defendant David Bisard s carelessness, negligence, and/or negligence as a matter of law, including, but not limited to, the following acts and/or omissions: a. When he drove his police vehicle with a blood alcohol content of.19, well over the Indiana legal limit of.08. b. When he responded to the non-emergency situation on his own volition and without the IMPD Dispatch s authorization or request. c. When he activated his police vehicle sirens and lights without good cause or reason. d. When he drove his police vehicle at high rates of speed without good cause or reason. e. When he weaved his police vehicle in and out of lanes of traffic without good cause or reason. f. When he drove his police vehicle while distracted and while using his police vehicle computer for non-police business. g. When he failed to react in a timely manner and stop his vehicle in order to avoid the collision with Plaintiff Mary Mills, Plaintiff Kurt Weekly, and Eric Wells. 21. It was foreseeable and substantially certain to Defendant David Bisard, given his prior nine years of experience with IMPD and with the City of Indianapolis, that his conduct on August 6, 2010 would cause a collision resulting in serious injuries and/or death or would expose the public including Kurt Weekly to such risk. 22. The above mentioned collision was directly and proximately caused by the carelessness, negligence, and/or negligence as a matter of law of the Defendants the City of 4

5 Indianapolis and IMPD, including, but not limited to, the following acts and/or omissions: a. Failure to properly train IMPD Officer David Bisard. b. Failure to properly supervise and monitor IMPD Officer David Bisard. 23. It was foreseeable and substantially certain to the Defendants the City of Indianapolis and IMPD that its failure to properly train, supervise and monitor IMPD Officer David Bisard would cause a collision resulting in serious injuries and/or death or would expose the public including Kurt Weekly to such risk. 24. As a direct and proximate result of the carelessness and negligence of the Defendants, the Plaintiff Kurt Weekly sustained severe and permanent physical injuries, including injury to his brain. 25. As a direct and proximate result of the carelessness and negligence of the Defendants, the Plaintiff Kurt Weekly has endured extreme physical pain and suffering, and will continue to suffer such damages in the future. 26. As a direct and proximate result of the carelessness and negligence of the Defendants, the Plaintiff Kurt Weekly has incurred medical expenses exceeding $500,000, and lost wages, and will continue to suffer such damages in the future. WHEREFORE, Plaintiff Kurt Weekly prays for judgment against the Defendants in amounts which will fully and fairly compensate Plaintiff Kurt Weekly for his injuries and damages, for costs of this action, for interest as allowed by law, and for all other relief just and proper in the premises. COUNT II DEFENDANTS NEGLIGENCE CAUSING PERSONAL INJURIES TO PLAINTIFF MARY MILLS 27. Plaintiff Mary Mills reasserts, realleges and incorporates numerical paragraphs one (1) through sixteen (16) herein by reference. 5

6 28. On August 12, 2010, Plaintiff Mary Mills provided the Office of the Mayor and Defendants with her timely Tort Claim Notice against the City of Indianapolis and IMPD for negligence causing personal injuries, pursuant to Ind. Code The Office of the Mayor and Defendants have not favored Plaintiff Mary Mills with the courtesy of a response to her Tort Claim Notice of August 12, 2010, and therefore have required Plaintiff Mary Mills to file this complaint. 30. As described in Plaintiff Mary Mills Tort Claim Notice dated August 12, 2010, the collision on August 6, 2010 was directly and proximately caused by Defendant David Bisard s carelessness, negligence, and/or negligence as a matter of law, including, but not limited to, the following acts and/or omissions: a. When he drove his police vehicle with a blood alcohol content of.19, well over the Indiana legal limit of.08. b. When he responded to the non-emergency situation on his own volition and without IMPD Dispatch s authorization or request. c. When he activated his police vehicle sirens and lights without good cause or reason. d. When he drove his police vehicle at high rates of speed without good cause or reason. e. When he weaved his police vehicle in and out of lanes of traffic without good cause or reason. f. When he drove his police vehicle while distracted and while using his police vehicle computer for non-police business. 6

7 g. When he failed to react in a timely manner and stop his vehicle in order to avoid the collision with Plaintiff Mary Mills, Plaintiff Kurt Weekly, and Eric Wells. 31. It was foreseeable and substantially certain to Defendant David Bisard, given his prior nine years of experience with IMPD and with the City of Indianapolis, that his conduct on August 6, 2010 would cause a collision resulting in serious injuries and/or death or would expose the public including Mary Mills to such risk. 32. The above mentioned collision was directly and proximately caused by the carelessness, negligence, and/or negligence as a matter of law of the Defendants the City of Indianapolis and IMPD, including, but not limited to, the following acts and/or omissions: a. Failure to properly train IMPD Officer David Bisard. b. Failure to properly supervise and monitor IMPD Officer David Bisard. 33. It was foreseeable and substantially certain to the Defendants the City of Indianapolis and IMPD that its failure to properly train, supervise and monitor IMPD Officer David Bisard would cause a collision resulting in serious injuries and/or death or would expose the public including Mary Mills to such risk. 34. As a direct and proximate result of the carelessness and negligence of the Defendants, the Plaintiff Mary Mills sustained severe and permanent physical injuries. 35. As a direct and proximate result of the carelessness and negligence of the Defendants, the Plaintiff Mary Mills has endured extreme physical pain and suffering, and will continue to suffer such damages in the future. 36. As a direct and proximate result of the carelessness and negligence of the Defendants, the Plaintiff Mary Mills has incurred medical expenses and lost wages, and will 7

8 continue to suffer such damages in the future. WHEREFORE, Plaintiff Mary Mills prays for judgment against the Defendants in amounts which will fully and fairly compensate Plaintiff Mary Mills for her injuries and damages, for costs of this action, for interest as allowed by law, and for all other relief just and proper in the premises. COUNT III DEFENDANTS NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS TO PLAINTIFF KURT WEEKLY 37. Plaintiff Kurt Weekly reasserts, realleges and incorporates numerical paragraphs one (1) through twenty six (26) herein by reference. 38. On October 8, 2010, Plaintiff Kurt Weekly provided the Office of the Mayor and Defendants with his timely Tort Claim Notice of Kurt Weekly, Gary Weekly, and Karen Weekly against the City of Indianapolis and IMPD for negligent and intentional infliction of emotional distress, pursuant to Ind. Code The Office of the Mayor and Defendants have not favored Plaintiff Kurt Weekly with the courtesy of a response to his Tort Claim Notice of Kurt Weekly, Gary Weekly, and Karen Weekly dated October 8, 2010, and therefore have required Plaintiff Kurt Weekly to file this complaint. 40. As described in Plaintiff Kurt Weekly s Tort Claim Notice of Kurt Weekly, Gary Weekly, and Karen Weekly dated October 8, 2010, the Plaintiff Kurt Weekly has endured extreme emotional pain and suffering, because he was forced to witness the gruesome death of his close friend and co-worker Eric Wells, and because he was forced to witness the extreme pain and suffering of Mary Mills, now the Plaintiff Kurt Weekly s wife, and Plaintiff Kurt Weekly will continue to suffer such damages in the future, as a direct and proximate result of the Defendants carelessness and negligence. 8

9 41. As described in Plaintiff Kurt Weekly s Tort Claim Notice of Kurt Weekly, Gary Weekly, and Karen Weekly dated October 8, 2010, Defendants the City of Indianapolis and IMPD have negligently and intentionally inflicted unreasonable anguish and emotional distress upon Plaintiff Kurt Weekly, including, but not limited to, the following specific acts and/or omissions: a. Mishandling of collision evidence, and in particular, mishandling of Defendant David Bisard s blood alcohol content test. b. Failure to conduct a proper investigation of the collision. c. Public dissemination of information concerning the crash and its aftermath. 42. It was obvious and certain to the Defendants the City of Indianapolis and IMPD that their conduct of mishandling evidence, of failing to conduct a proper investigation, and of the public dissemination of information concerning the crash and its aftermath, would result in a swarm of media attention that continues to date, in a hiatus of the criminal justice system, in the dismissal of several criminal charges against Defendant David Bisard, and consequently in the Plaintiff Kurt Weekly s extreme and continuing emotional distress. WHEREFORE, Plaintiff Kurt Weekly prays for judgment against the Defendants, David M. Bisard, the City of Indianapolis, and IMPD, in amounts which fully and fairly compensate him for his individual injuries and damages, for his intentionally inflicted emotional distress, for costs of this action, for interest as allowed by law, and for all other relief just and proper in the premises. COUNT IV DEFENDANTS NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS TO PLAINTIFF MARY MILLS 43. Plaintiff Mary Mills reasserts, realleges and incorporates numerical paragraphs 9

10 one (1) through sixteen (16) and twenty eight (28) through thirty six (36) herein by reference. 44. On November 2, 2010, Plaintiff Mary Mills provided the Office of the Mayor and Defendants with her timely Tort Claim Notice against the City of Indianapolis and IMPD for negligent and intentional infliction of emotional distress, pursuant to Ind. Code The Office of the Mayor and Defendants have not favored Plaintiff Mary Mills with the courtesy of a response to her Tort Claim Notice of November 2, 2010, and therefore have required Plaintiff Mary Mills to file this complaint. 46. As described in Plaintiff Mary Mills Tort Claim Notice dated November 2, 2010, the Plaintiff Mary Mills has endured extreme emotional pain and suffering, because she was forced to witness the gruesome death of her close friend and co-worker Eric Wells, and because she was forced to witness the extreme pain and suffering of Plaintiff Kurt Weekly, now the Plaintiff Mary Mills husband, and Plaintiff Mary Mills will continue to suffer such damages in the future, as a direct and proximate result of the carelessness and negligence of the Defendants. 47. As described in Plaintiff Mary Mills notice of tort claim dated November 2, 2010, the Defendants the City of Indianapolis and IMPD have negligently and intentionally inflicted unreasonable anguish and emotional distress upon Plaintiff Mary Mills, including, but not limited to, the following specific acts and/or omissions: a. Mishandling of collision evidence, and in particular, mishandling of Defendant David Bisard s blood alcohol content test. b. Failure to conduct a proper investigation of the collision. c. Public dissemination of information concerning the crash and its aftermath. 10

11 48. It was obvious and certain to the Defendants the City of Indianapolis and IMPD that their conduct of mishandling evidence, of failing to conduct a proper investigation, and of the public dissemination of information concerning the crash and its aftermath, would result in a swarm of media attention that continues to date, in a hiatus of the criminal justice system, in the dismissal of several criminal charges against Defendant David Bisard, and consequently in the Plaintiff Mary Mills extreme and continuing emotional distress. WHEREFORE, Plaintiff Mary Mills prays for judgment against the Defendants, David M. Bisard, the City of Indianapolis, and IMPD, in amounts which fully and fairly compensate her for her individual injuries and damages, for her intentionally inflicted emotional distress, for costs of this action, for interest as allowed by law, and for all other relief just and proper in the premises. Respectfully submitted, WILSON KEHOE & WININGHAM D. Bruce Kehoe Attorney # WILSON KEHOE & WININGHAM P.O. Box North Meridian Street Indianapolis, IN Tel (317) Fax (317) Attorney for Plaintiff Kurt Weekly LADENDORF & LADENDORF 11

12 12 Mark Ladendorf Attorney # N. Shadeland Ave. Indianapolis, IN Tel Fax Attorney for Plaintiff Mary Mills