Fatal Highway 2 crash may spur civil litigation
Using surveyor's instruments on a tripod, two men were measuring distances Tuesday afternoon at the intersection of U.S. Highway 2 and Grand Forks County Road 5, just outside the international airport about three miles west of the city.
They don't work for the state or county highway department, although their yellow reflective vests and hardhats gave them an official look.
The men were there at the behest of an unnamed insurance company, part of what is expected to be a lot of litigation over the fatal crash at the intersection Dec. 22.
It was about 10 a.m. the Wednesday before Christmas, when a van filled with three children and a father headed north into the intersection to go west on Highway 2 and was hit broadside by a semi-truck going east.
Kaylee-Jo Marie Wyatt, 8, and Kevin Boyer III, 5, were killed as the collision ripped open the side of the van. A third child, Xxaxx (pronounced Zax) Boyer, 3, was injured, as was his father, the driver, Kevin Boyer Jr., 39. They were taken to Altru Hospital and released a few days later.
The truck driver, Steve Nelson, 64, Jamestown, N.D., was not physically injured in the crash but was treated at Altru for what his supervisor described as the emotional shock and trauma.
Other drivers who witnessed the accident have told news reporters that it appeared Nelson ran a red light.
One of the witnesses who stopped to help, a truck driver, told the Herald that he, too, was traumatized by the scene. He said that while he was certain that Nelson had gone through a red light, because he had just arrived at the intersection from the east, he also thought it was a difficult intersection for truckers on Highway 2.
The history of the intersection may play a role, too, in the future of any litigation over this crash. Two decades ago, Shirley Jahnke, a Grand Forks attorney, began pushing to have an overpass built at the intersection, after her college-aged daughter was in an accident after failing to yield at the stop sign that then stood on the airport road. Her daughter and the driver of the westbound car she hit escaped serious injury, Jahnke said. After months of activism by Jahnke, state officials installed lights at the intersection, while rejecting the idea of an overpass.
Also installed were sets of flashing yellow lights about 200 yards east and west of the intersection on Highway 2 that flash to warn drivers that the green light at the intersection is about to change to yellow, then red.
After the accident Dec. 22, Jahnke told the Herald she regretted not pushing harder at the time to get an overpass and said she planned to take up the issue again.
One of the surveyors at the intersection Tuesday declined to say much, except to refer questions to the "insurance adjuster" waiting for them, parked along the county road that runs north and south through the intersection.
The insurance adjuster, too, said he couldn't say much about their work, except that he had picked up the two men from the airport and was providing them with local information.
The two men were driving a rented car with a stick-on yellow flashing light.
There are several possible parties in any litigation that may result.
Nelson drives truck for a Jamestown, N.D., company, and was hauling a van belonging to UPS.
Representatives of insurance companies, including private investigators and attorneys, have contacted the Herald seeking information about witnesses to the accident, saying it's part of their clients' investigations into the matter.
(As a matter of policy, the Herald does not pass on information about sources.)
Lawyers involved in possible litigation in the case have told the Herald that UPS and the Jamestown trucking company, as well as Nelson and the Boyer family all have attorneys and that insurance companies also are involved.
Contacted by the Herald last month, Nelson referred all questions to a criminal defense attorney he hired.
One of the witnesses told the Herald he had been getting calls from people wanting to know what he saw at the scene.
A Fargo lawyer whose firm is representing one of the parties said it is blossoming into a huge case of civil litigation, much of it sort of waiting for the local prosecutor to announce if any criminal charges will be filed. That announcement, among other things, will make some official investigative documents available, one attorney said.
The North Dakota Highway Patrol did the initial official investigation into the accident and within days had forwarded its information to Peter Welte, Grand Forks County state's attorney.
Welte said Tuesday that he can't say much yet about the case.
In an e-mail response to the Herald, Welte said: "What I will say is that we are awaiting return of analysis of some evidence and thus the matter remains an ongoing investigation."
Welte said earlier that it's not unusual for such serious traffic accidents to require time to get the investigation complete.
After initially working the case himself for several days, Welte assigned it to a veteran assistant state's attorney, David Jones, saying Jones had experience in such cases.
Last year, Jones investigated the case of an elderly pedestrian hit by a vehicle Sept. 8 on UND's campus. On Nov. 7, Jones announced that no charges would be filed because there was no evidence of negligence by the driver, who was turning at the intersection. The man who was hit later died.
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