Edward Nelson, the 90-year-old driver whose SUV jumped a curb and pinned six-year-old twin boys against a wall in downtown Menlo Park, will not be charged with an infraction for driving on the sidewalk.
The Cadigan family filed a lawsuit against Mr. Nelson seeking punitive as well as general damages for injuries ranging from multiple, extensive skin grafts and lower-body damage; orthopedic and soft-tissue damage to the upper body; and emotional trauma.
Under California criminal law, the infraction was the only possible charge, and the evidence didn't support filing it, according to the San Mateo County District Attorney's Office, because nothing indicated that Mr. Nelson intentionally hit the boys.
"There has to be an intentional, or a 'malicious' act, which is probably a better way to look at it," Deputy District Attorney Sean Gallagher said. "There has to be volitional conduct. If you run a stop sign, you are volitionally not bringing the wheels to a complete stop. In this case, he believed he was doing one thing, and was mistaken. He was trying to hit the brake, and hit the gas instead."
Mr. Nelson's physical condition some witnesses of the crash reported that he needed a walker to exit his BMW wasn't a factor. "They determined at the scene that he wasn't under the influence. There was nothing obvious to indicate that he was incapable of safely operating a motor vehicle that day," Mr. Gallagher told the Almanac.
The driver, however, is no longer behind the wheel: His license has been suspended, according to the D.A.'s office, but it's unclear whether Mr. Nelson voluntarily surrendered it or the Department of Motor Vehicles took it away. He had no prior suspensions or history of reckless driving.
"Tragically, these incidents are what brings home to a lot of elderly drivers that maybe they shouldn't be driving," Mr. Gallagher said.
Had someone died as a result of the crash, the driver would likely have faced a vehicular manslaughter charge, which doesn't require intentional conduct.
"We can all agree it was an accident, but the law says if someone dies, we're going to hold someone responsible for the death," Mr. Gallagher noted. "We don't have an equivalent for injuries inflicted in an accident."
Criminal law, he said, does not address every tragedy that happens. "It's a classic civil tort."
The family's lawsuit against Mr. Nelson, however, ran into a similar setback on the civil front when a judge ruled on Thursday (Jan. 23) to dismiss their request for punitive damages because "there are insufficient allegations to show that defendant acted intentionally to harm the plaintiffs, or that he engaged in despicable conduct with a willful and conscious disregard of the rights or safety of others."
Judge Joseph Bergeron did, however, grant the plaintiffs' request to amend their complaint. That leaves open the possibility that they will submit further evidence to support their contention that the driver "was aware of the probable dangerous consequences of his driving, and that he failed to take action to avoid such consequences" with conscious disregard for the safety of others, according to the family's attorneys.
The initial response filed by Mr. Nelson's legal team denied his responsibility for the resulting injuries, claiming the children were engaged in behavior that was reckless, careless and negligent.
Mr. Nelson did not respond to a request for comment. A Woodside resident at the time of the crash, he graduated from Stanford Law School and was licensed to practice law from 1957 to 2001, according to the California State Bar.
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