The fight for justice in Henderson County bicyclist death

North Carolina Judicial District 29(b) is comprised of three counties and holds civil Superior Court once or twice a month. I’ve learned over the years to look forward to going to court in these smaller counties. The courthouses are typically historic landmarks and your hearing notice sends you to someplace important sounding like “Courtroom 1.” The court staff are friendly and without airs of importance and, despite sometimes having reputations for being “good old boy” or dishing out “home cooking,” as an out of town lawyer and woman, I’ve found most of them to be quite welcoming. The Polk County Courthouse in Columbus, North Carolina, met my expectations perfectly.

It was against this backdrop that we closed the final chapter of a story that started five years ago with the death of a young woman who was riding a bicycle to work in the early, dark, hours of the morning in Hendersonville, North Carolina. This young woman (CB for privacy reasons) had not had an easy life. [Because of the lawsuit, the facts of this case, and names of all adults, are public record. We simply believe the family does not need the extra publicity of social media disclosure.] Almost divorced and with two very young children, she endured ongoing struggles with mental illness and ensuing social services involvement. Nonetheless, on that dark morning in September, 2015, CB got on her Big Box Store bicycle and began her roughly ten mile journey to work. 

We’ll never know for sure why CB was exactly where she was when she was hit. But at about 6:15 am, when driver David Grajek drove East on Highway 64, heading away from Hendersonville, he encountered CB, on her bicycle, in the left of two east going lanes. Before he was able to react, Grajek hit CB and sent CB, her bicycle and all her belongings flying into the night. Grajek stopped his truck, got out, found CB and saw that she was not moving. He later said that only her foot and lower leg were in the left travel lane. The rest of CB’s body, according to Grajek, was in the middle lane. [The middle lane was a median turn lane but the only place to turn into was a gas station on the east bound side of the road that was closed at the time]

Grajek went back to his truck and rummaged through his belongings, many of which were on the floor of his truck, but could not find his phone. After a short time of not knowing what to do, Grajek got back in his badly damaged truck and somehow managed to drive across the two travel lanes and park the truck on the shoulder of the Highway 64. Grajek and his truck were now safe, but CB was lying, helpless and unprotected, in the road. Her bicycle had landed some distance from her, leaving her without even its reflectors near her to alert anyone to her presence.

As Grajek stood in the shoulder by his truck, another driver, McClure, came along in the same direction. McClure was in the right lane, but saw Grajek’s truck in the shoulder and moved over to give him space. As McClure moved over, he hit something relatively large in the road. McClure assumed he’d hit something that had fallen off of Grajek’s truck and that was why Grajek had pulled over. McClure drove on. Of course, he had hit CB, whose upper torso and head were in the left travel lane.

Finally help arrived. Sadly, CB was pronounced dead at the scene. McClure heard about what happened on the news, realized he was the second vehicle police were now searching for and returned to the scene. Seeing that CB had only reflectors on her bicycle and was in the left travel lane of a very dark, five lane road, police quickly wrapped up their investigation, finding no fault on the part of Grajek or McClure.

Understandably distraught, CB’s father set out to look for answers. He was able to get the police investigation file; he talked with everyone he could find, searching for witnesses; he paid visits to McClure and to Grajek. McClure was distraught and horrified at his role in CB’s death. Grajek, however, was unsympathetic and told CB’s father that CB shouldn’t have been where she was. A simple, “I’m so sorry for your loss” would have gone a long way.

CB’s father began to call lawyers. North Carolina being a pure contributory negligence state, everyone turned him down. He had almost given up hope when, one day, CB’s father walked into a local bike shop and shared his story. The employee at the bike shop said, there’s a network of lawyers who are bicyclists and represent bicyclists. You should call them. And that’s how CB’s father came to us.

I won’t go into every detail about the case and how it was litigated. It was set for trial twice and continued. That means we prepared twice, no small task, to go to trial. There were also dual summary judgment hearings. The defense asked the judge to find, as a matter of law, that we did not have a case. We asked the judge to dismiss the defendant’s defense of contributory negligence to our claim of failure to render aid. 

Finally, we had to hire an estate lawyer to determine who the rightful heirs were in the case. CB was still technically married at the time to the father of one of the children but they had been estranged for some time and the father had moved on to a new relationship. Any money from the case needed to go to the benefit of the children. The estate lawyer was able to have the children declared the rightful heirs. 

The liability claim against Grajek was two fold:

1. Although it was very dark, had Grajek been looking where he was going and driving the speed limit, he should have seen CB in time to avoid hitting her. We determined this by recreating the scene on the same road with our expert at 4:30 one morning. Our expert bought the same Big Box Store bicycle and placed it just outside the left travel lane. We then videotaped numerous approaches and determined that the bicycle (without a person on it) was visible.  Because we had no explanation for why CB was where she was, we had to concede that CB was also negligent. However, North Carolina does have a few narrow exceptions to its contributory negligence law and one of them is called Last Clear Chance. If a person negligently puts herself into a position of peril but the person who injured her should have still been able to avoid causing the injury, then Last Clear Chance may apply. We believed Grajek should have been able to avoid hitting CB.
2. Second, once Grajek was involved in the collision, regardless of whose fault it was, it was his duty to remain and the scene and to render reasonable aid. The type of aid required depends on the circumstances but at least means calling for help. Not surprisingly, we found no prior case, in North Carolina or anywhere, with our specific set of facts. It was our position, however, that “render aid” in these circumstances required Grajek to at least leave his truck in the position where it protected CB from further injury. Grajek’s truck, with flashers, was visible from a long distance and would have provided protection to CB until help arrived. The fact that Grajek saw CB’s foot in the left travel lane but that her body was facing the other way, with her upper torso in the travel lane, meant CB was still alive after the first impact. There was no other way that she could have moved. (The impact with the second car likely would have rolled her body but could not possibly have flipped her)

Initially, we did not sue McClure. In his deposition, however, Grajek took no responsibility whatsoever for CB’s death and pointed the finger at McClure. We needed the court system to sort it out, and brought McClure into the suit. It wasn’t long before we were able to reach a resolution with him and he was let out of the case, although he remained a witness.

Grajek, however, continued to fight. Finally, as all of us were looking for a third possible trial date, we were able to settle with Grajek. 

I won’t mention the amount of the settlement. If anyone really wants to know, you can go and look in the court file. I will say that it was not big. Neither of these guys had a lot of insurance coverage. Money of course won’t bring back these childrens’ mother and in this case, it won’t even keep them comfortable for any length of time. Our fee in the case was not remotely reflective of the time several people in our firm spent in the case. But, while we can’t tilt at windmills in every case, some battles just stand out as needing to be fought. 

This woman, struggling with mental illness yet riding ten miles to work in the dark on her Big Box Store bike, was trying. She wanted a life for her children and though she had many setbacks, she was making progress. We will never know if she would have made it, but everyone who wants to try deserves that chance. The children deserved the chance to have a mother who had her life together. That chance is gone. We can only hope that the money we were able to get them will somehow improve their lives and their lasting image of her is as someone who fought for them.

When the beneficiaries of the proceeds of a lawsuit are minors, the Court must approve the settlement. A guardian is appointed by the court to review all of the information in the case and the distribution of the funds and report his or her recommendation to the Court. Given the complexities of the case, our guardian went above and beyond his call of duty to spend time in his review and lengthy conversations with the childrens’ fathers. 

In historic Courtroom 1 this morning, CB’s story was finally laid to rest and her family can finally put her death behind them and start to heal. To the extent there is any publicity at all about the resolution of it, we hope it will accomplish two things: (1) remind us that EVERYONE, regardless of troubles in life, poverty or even character flaws, deserves a chance to live and work to make a better life and (2) repeat the message that paying close attention to the road while driving is important, even when you don’t expect someone to be out there with you. Often the most vulnerable people ride in areas that aren’t conducive to bicycle riding, because they have no other choice. They often can’t afford proper lighting or just aren’t educated about the need for it. In an ideal world, CB could have done more to prevent her own injury. Also in an ideal world, Grajek would have seen her, avoided her and she likely would have made it over to the shoulder or sidewalk and the right to continue her journey.