The Willow Glen Resident

Kimball's widower awarded $1.2 million in drunken driver suit

Cops immune from liability in crash resulting from high-speed chase

By Mary Spicuzza

It's been well over a year since longtime Willow Glen resident Elizabeth Kimball was killed when a drunken driver fleeing police slammed into her car as she and her husband drove along Lincoln Avenue. But for widower Michael Kimball, who was seriously injured in the accident, winning a $1.2 million lawsuit against defendant Robert Cole is just one small step in a long journey of coping with his wife's random death.

In the May 28 settlement, Kimball won the full amount he had asked for from defendants Cole and the owner of the car, Judy Chapman, who had initially lent the car to Cole's wife. Yet both Kimball and his attorney, Robert H. Bohn Jr., believe some issues around the wrongful-death case remain unresolved.

Mrs. Kimball, who was 39 years old, was killed on Feb. 18, 1997, when Cole ran a red light at the intersection of Lincoln and Malone while attempting to escape from three police cars. Officers began chasing Cole when he ran another stoplight at the corner of Monterey Highway and Lewis Road. The pursuit continued through city streets for more than 10 minutes, according to Bohn. Cole was charged with second-degree murder and manslaughter.

Kimball, who was trapped in the car with his wife and had to be freed by the San Jose Fire Department, suffered a ruptured diaphragm, a concussion and contusions. He sued Cole for medical costs, funeral expenses and wage loss due to injury. The lawsuit also listed severe emotional distress and the loss of his wife as Kimball's worst injuries.

Kimball had also attempted to sue the city of San Jose. His lawsuit charged that the city "negligently, recklessly and in violation of its own vehicle pursuit policies engaged in an extended, dangerous and unreasonable pursuit," thus contributing to the circumstances of the accident.

Bohn believes the case against the city was dismissed because police are immune from such lawsuits. He says that under state law, people or family of those injured or killed in police pursuits cannot make legal claims against a government entity if it has a written pursuit policy in compliance with the state vehicle code.

"In this case [against Cole] we were fortunate. ... We were lucky in terms of insurance," Bohn says. "But there's a real problem with the policy as it stands, especially in a case where an innocent third party gets hit due to a high-speed chase ... when the police were clearly in violation of their own codes." He cites as one of those violations having three patrol cars in pursuit of Cole when SJPD regulations allow for only two.

"I'm not aware of any police-policy violations in that case," SJPD spokesperson John Carrillo says. "There are already strict parameters for police chases."

Carrillo says the city can be sued even if officers act in accordance with those guidelines. When asked about changes to existing policy, Carrillo immediately replies, "I know that's not necessary."

Bohn believes his client could have gotten an even better settlement, but adds, "This is a wrongful death of someone who could have contributed to the community for another 30 years, who was happily married. ... You can't put a price tag on losing that."

This year a bouquet of flowers commemorated the corner where Elizabeth Kimball died, but many other city streets could be marked as drunken-driving crash sites. In 1996, 1,254 of 3,972 fatal accidents statewide involved a drunken driver, according to the California Highway Patrol's annual report. The same study indicates that 35,654 people in California were injured that year by a driver who was under the influence of alcohol.

Attorneys at the Law Offices of Bohn, Bennion & Niland and Michael Kimball are currently organizing a grassroots campaign to modify the high-speed chase law so that police no longer have "blanket immunity."

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