The widow of a man killed by a Milwaukee County Transit System bus as he crossed the street deserves a new trial in her civil case "in the interest of justice," the Court of Appeals has ruled.
The unanimous, unsigned opinion by a three-member panel of the District I Court of Appeals upheld an earlier decision by Milwaukee County Circuit Judge Christopher Foley (now retired).
Angel Castillo-Rivera had the green light when he was crossing North 35th Street at the intersection of West Wisconsin Avenue and 35th. Bus driver Brian Brown was making a right turn from Wisconsin on to 35th when his bus hit and killed Castillo-Rivera, who had exited the vehicle minutes earlier, according to the decision.
The February, 2018 accident occurred at night, during extremely rainy and windy conditions. Brown was finishing a six-hour shift, according to a brief filed by attorney , representing Castillo-Rivera's widow, Dinora Otero De Castillo. At the time, he had worked 14 of the past 17 hours.
De Castillo, acting on behalf of herself and Castillo-Rivera's estate, sued Milwaukee Transport Services Inc. / Milwaukee County Transit System, Milwaukee County, and the Wisconsin County Mutual Insurance Corp., alleging that Brown was negligent.
The jury found that Brown was not negligent and that Castillo-Rivera was a cause of the accident. The jury awarded $100,000 to the estate for pain and suffering and $100,000 to De Castillo for the loss of society and companionship.
After the verdict, De Castillo's attorney moved for a new trial in the interest of justice.
Foley granted the motion, finding that a jury could have reasonably assigned Castillo-Rivera some of the responsibility for the accident according to a a brief filed by Thomas Kyle, representing De Castillo.
Kyle quoted Foley's further finding that that
"The no negligence finding as to Mr. Brown is against the great weight and clear preponderance of the evidence in that it completely disregards video evidence Mr. Brown failed to make any reasonable effort during the 15-20 second stop period to observe the northeast corner of the intersection a critical safety location given his intended course and 'a place where [Brown] was required to direct his lookout.' In doing so, he failed to fulfill his duty to maintain a timely and effective lookout so as to allow the safe completion of his turn.
Brown et al, on appeal, argued that Brown did look to the right three times, but that Castillo-Rivera was in a bus blind spot and Brown did not see him.
The appellate panel of Judges Maxine White, Pedro Colon, and Sara Geenen rejected Brown's contentions that Foley changed the jury verdict rather than granted a new trial and that by relying so heavily on the video evidence, "he rejected the possibility that Brown could be found not negligent.”
"Rather than predetermining the outcome for a subsequent trial, we construe the trial court’s order as simply fulfilling the trial court’s duty to support its finding that a new trial in the interest of justice is warranted," the panel said.
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