The mother of a Burlington teenager who suffered extensive injuries after being struck by a car while riding his bicycle along Summer Street this past summer has filed suit against the driver, who was charged Oct. 31 with serious injury by a motor vehicle, operating while intoxicated and crossing the centerline.
Spencer Weir, now 15, had been riding his bicycle to Kenny's Roller Ranch, where he was a frequent roller skater and had been riding his bicycle, shortly before 9 p.m. June 9 when he was struck by a 2001 Toyota Avalon driven by 24-year-old Shelby Whittaker of Burlington.
Weir was taken by ambulance to Great River Medical Center before being transported to the University of Iowa Hospitals and Clinics in Iowa City for treatment of his injuries, including but not limited to spinal bruising, multiple traumatic brain injuries and fractures to his head, spine, arm, leg and foot. Weir also suffered a brachial plexus injury that tore the nerve roots controlling his left arm away from his spinal cord.
Weir remained in Iowa City for several weeks before being transferred to a rehabilitation facility in Nebraska.He was able to return home in August, but still has a lengthy road to recovery ahead.
Whittaker was not injured in the accident.
According to the Iowa State Patrol's initial accident report, lighting conditions were believed to have factored into the accident, but a subsequent toxicity screening revealed Whittaker had a blood alcohol content level above the legal limit of .08.
"It was extrapolated to be over the legal limit at the time of the accident," Des Moines County Attorney Lisa Schaefer said Wednesday of Whittaker's BAC, which was determined by a blood sample.
Schaefer said the blood sample had to be taken to the Department of Criminal Investigation lab in Ankeny for analysis. Upon receipt of the report, Schaefer's office and Iowa State Patrol were able to move forward with filing charges.
Whittaker appeared Oct. 30 in Des Moines County District Court, where she was advised of her charges and placed on pretrial release with supervision.
Carrie Reusch, Weir's mother, filed a petition in July seeking compensatory damages from Whittaker and alleging Whittaker of acts of negligence including operating a vehicle while impaired by alcohol and/or by use of a cell phone device while driving; speeding; failing to keep a proper lookout; failing to have her vehicle under control and failing to yield half the roadway to Weir.
As a result of the alleged negligence, the petition filed by Burlington attorney Steven J. Crowley on Reusch's behalf, Weir "has incurred doctor, hospital and other medical-related expenses in the past and will continue to incur more of the same in the future; he has endured severe and continuing pain, suffering, disfigurement and loss of function of the mind and body in the past and will continue to endure more of the same in the future; and S.W., a minor, has sustained a loss of earning capacity in the future."
The petition further states Reusch has suffered damages as a result of the collision, including shouldering the burden of medical expenses past and future, lost time from work while caring for her son and "lost part of the normal love, companionship and consortium with her son in the past and will continue to suffer a partial loss of the same in the future."
Adam Bates, a West Des Moines attorneyrepresenting Whittaker,in an answer to the petition filed Aug. 17, said many of the allegations in Reusch's petition "are denied for lack of information."
"Defendant states and alleges that Plaintiff's injuries and/or damages, if any, may have been caused or contributed to by a pre-existing medical condition and/or subsequently occurring medical condition for which this Defendant is not responsible," Bates' response states.
An amended motion filed Monday by Reusch's attorney claims evidence of additional liability has been found against S&J Smith doing business asDoris' Tavern and alleges Whittaker was overserved at the Roosevelt Avenue bar prior to the accident.
"On or about 6/9/2020, at approximately 8:00 p.m., defendant Shelby Whittaker was in Doris' Tavern and defendant S&J Smith d/b/a Doris' Tavern sold and/or gave alcohol to Shelby Whittaker when she was visibly exhibiting signs of intoxication and they knew, or in the exercise of reasonable care, should have known, that she would become more intoxicated."
The motion further states that by serving Whittaker alcohol, S&J Smith caused "direct, legal and proximate cause of all the damages, harms and losses suffered by the plaintiff ..."
The motion also seeks for Farm Bureau Insurance Company and Farm Bureau Financial Services, through which Reusch and Weir had motor vehicle insurance, to pay the full amount of medical costs not covered by the policy.
A trial scheduling conference has been set for 8:50 a.m. Nov. 10 via teleconference.
CRASH DATE: June 9th 2020