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Lawyer says fatal Rochester crash should not result in loss of client's license
By JOEY CRESTA
jcresta@fosters.com
Friday, February 20, 2009
DOVER — The driver of the Elf's Landscaping dump truck that was involved in a 2007 accident that resulted in the death of a motorcyclist was back in court Thursday to appeal the three-year loss of his license.
Attorney Robert Zubkus does not deny that Jeremy Kean was making a left-hand turn in an Elf's Landscaping dump truck pulling an empty flatbed trailer when it was involved in a collision with a Harley-Davidson motorcycle being driven by Joseph Chalifour of Strafford on Walnut Street on the afternoon of June 8, 2007.
He also does not deny the turn constituted a failure to yield that, under certain circumstances, would be unlawful. But he says mitigating circumstances on that afternoon should come into consideration when determining the punishment Kean should receive because they show his failure to yield wasn't the only factor significantly contributing to Chalifour's death.
"The collision most likely would not have occurred," Zubkus said, if Chalifour had used all of his motorcycle's braking power. After a police investigation, it was determined from such evidence as the skid marks left on the ground that Chalifour had used only his back brakes, which constitute only 30 percent of the motorcycle's braking ability.
Skid marks 99.3 feet long were observed at the scene and, based on calculations, if Kean had used all his braking power at his estimated speed of 35 miles per hour he would have stopped within 41 to 57 feet in front of the landscaping truck, Zubkus said.
He also referenced a conspicuity study relating to "inattentional blindness" that suggests certain objects are difficult to detect when against a certain background. Zubkus said the motorcycle appeared to be motionless when Kean went to make the left-hand turn onto Stephens Drive, which is in the area of Elf's Landscaping.
The accident occurred after a 10-hour work day and fatigue may have also played a part in Kean's "inattentional blindness" Zubkus said.
Zubkus also raised issues with information that a passenger in the truck Kean was driving yelled repeatedly for him to stop because of the oncoming motorcycle. He said Kean had already committed to the turn by that time and only ever saw the motorcycle out the passenger's window. Zubkus said a 1.5 second response time should be taken into consideration when questioning why Kean didn't try to avoid the collision after his passenger told him to stop or after seeing the motorcycle.
Zubkus told the court Thursday the examiner who originally heard the case ignored all these factors when making the decision to suspend Kean's license for three years. He said the decision appeared to be made as a punishment, rather than to keep a hazardous driver off the road, which he said is "unfair and unreasonable based on all the circumstances of that particular accident." Based on these circumstances, he said that decision "contained errors of law and unjust reasoning."
Thursday's hearing was the result of a decision by Judge Kenneth C. Brown on Nov. 24, 2008, to temporarily reverse the hearing examiner's decision to hand down a three-year suspension for Kean's involvement in the accident. Brown made that decision after no one from the state appeared to argue the appeal on that date due to a scheduling conflict.
According to Christopher Casko, who is now handling the case, there was a communication error due to the retirement of the person handling the case previously, and no one for the prosecution was aware of the hearing.
Judge Brian Tucker heard the appeal Thursday and said he had several problems with Zubkus' version of events. He said it was an unlawful failure to yield whether or not Kean saw the motorcycle in its lane of travel and that it was unlawful precisely because the motorcycle was in the lane.
"How could that turn be lawful when he failed to yield?" Tucker asked.
He also said it didn't matter that Chalifour hadn't used all his braking power because Kean should have been expected to yield, not assess whether the vehicle in the coming lane has time to stop.
Zubkus also claimed Kean had his turning signal on when he went to make the left turn, but Casko told the court a witness driving behind the truck saw no turn signals.
"Had (Kean) not made that left turn, the accident wouldn't have happened," he said. "There's no conclusion that Chalifour operated unlawfully in any way."
Tucker will take the appeal under advisement and will issue a decision on the appeal at some point in the next few weeks, though there is no mandated time limit for him to issue his decision, Casko said.
Family and friends of Chalifour gathered in the courtroom to show their support during the hearing. He was well known in the area for organizing benefit motorcycle rides for local children battling disease.
His mother, Diane Chalifour, called it a "no-win situation" but there should be "some type of justice" for losing her son.
"Three years is nothing compared to never being able to see my son again," she said.
Robin Chalifour, Joseph's widow, said she and her children "keep going on" but it's hard to be without their father.
She said her children, now 4 and 7 years old, "have no real understanding of what it means to die but day after day when dad doesn't come home," they're reminded of their loss.
A representative with Elf's Landscaping said she was not permitted to comment on whether Kean still worked for the company.
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