On Sunday, September 18, 2011, a one year old baby named Olivia Hellwig, died as the result of injuries sustained from a collision between an SUV that was backing out of a parking lot and the baby’s stroller. According to the Atlanta Journal-Constitution, Gwinnett police investigators are scratching their collective heads trying to determine what crime to charge the motorist and the mother of Olivia. As is stands now, the police investigation has allegedly concluded that the mother, Brooke Hellwig, and Tekila Glass, operator of the SUV, are equally at fault for causing the death of the baby.
Apparently, according to the AJC article, Ms. Hellwig parked her vehicle in the parking lot, put her baby in the stroller, and then pushed the stroller between two legally parked vehicles and into the path of the 2005 Chrysler Pacifica SUV that was backing out of a parking space. In contrast, in the CBSAtlanta article, the mother states that the driver backed into the stroller and then pulled forward and ran over the stroller a second time. After the collision, the baby was transported by EMS personnel to Egleston Hospital where she later died.
From a criminal standpoint, and with a view toward the laws regarding the Uniform Rules of the Road in Georgia, it is possible that Gwinnett County Police could charge Ms. Glass with improper backing, a violation of O.C.G.A. 40-6-240. This statute states in pertinent part that “[a] driver shall not back a vehicle unless such movement can be made with safety…” Although this incident occurred on public property in the parking lot of a public park, Georgia law recognizes that such property (even if private) is “…customarily used by the public as through streets or connector streets” and is thus subject to the rules of the road under O.C.G.A. 40-6-3(a)(2).
The question is whether or not Ms. Glass backed her SUV with safety? We know that her backed vehicle collided into the baby stroller. But was it negligent? In other words, did Ms. Glass know or should’ve known that backing up would cause damage to another? I think it is safe to say that Ms. Glass did not know and did not intentionally back up into the stroller. Thus, the query centers on whether Ms. Glass should’ve known that her backing of the SUV could not be made with safety. Unfortunately, the facts in the AJC article and CBSAtlanta are sparse and do not lead to a conclusion one way or the other on this issue. However, some questions posed by this personal injury attorney need to be answered.
Did Ms. Glass use her rear view and side mirrors prior to and during her backing of the SUV? Was Ms. Glass’ SUV equipped with a camera that displayed the rear of the SUV as she backed up? Did Ms. Glass see the mother pushing the baby stroller at any point in time before or during her backing? If so, what action did Ms. Glass take to ensure that her backing was made with safety? Why did Ms. Glass back over the stroller and then pull forward and crush the stroller a second time? Were her car windows up? Was she speaking or texting on a cell phone at the time of the incident? Did the driver have her radio on at a loud level? These are all questions that that the police and eventually the solicitor and/or district attorney of Gwinnett County will have to make. Once they make the decision, they best be sure that they will be able to prove that the crime was committed beyond a reasonable doubt to the jury.
As for the mother of the baby, what possible crime could the police possibly charge her with under Georgia law? Under O.C.G.A. 16-5-60, the reckless conduct statute, it is a misdemeanor crime to cause “…bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise…” Under this statute, the county may argue that the mother’s act of pushing the baby stroller between two parked vehicles and into the path of a backing vehicle constituted a substantial and unjustifiable risk to endanger the baby. In hindsight, we know that the risk killed the baby. But, I don’t think the facts of the case would justify reckless abandonment under O.C.G.A. 16-5-72 or cruelty to children under O.C.G.A. 16-5-70.
In any event, this tragic event is a no win situation for all the involved parties. It is clear that no person intentionally caused the injury or death of the baby. However, it is the duty of the state (and in this case the county) to protect its citizens and enforce the law. From a civil damages perspective, the estate of the deceased baby could in theory maintain a wrongful death action against the driver of the SUV. In reality, the auto insurance company of the driver of the SUV will investigate this incident and determine its exposure. Although the police found that both the SUV driver and the mother were equally responsible for the death of the baby, a civil jury will be able to hear all the evidence from an experienced accident attorney and make an impartial verdict as to liability.
The Law Offices of Kevin C. Ford has handled numerous parking lot car crashes and accidents and is currently accepting such cases throughout Georgia. If you or a loved one has been injured as the result of the negligence of a motorist, then please contact an experienced auto injury attorney for a free consultation.