Milwaukee County Jury Returns $633,682 Verdict in Day-Care Van Death of 7-Year-Old

On the morning of February 8, 2007, a 7-year-old boy in Milwaukee set out for school. His 15-year-old uncle walked with him. A day-care van driven by Heidi L. Allison came through, and the boy went under it. This was not a single impact. The van ran over him several times. He did not survive his injuries.

His mother brought a claim for his death. Under Wisconsin's wrongful-death statute, a parent can recover for the loss of a child's society and companionship, and a separate claim can cover the pain the child felt before dying. Both were at issue here. The case was captioned Kimbrough v. Allison.

Gruber Law Offices filed the suit in Milwaukee County Circuit Court on June 5, 2007, about four months after the boy was killed. Attorneys Geoffrey D. Wilber and Werner Erich Scherr represented the family. The case (number 2007CV006473) went to trial before Judge Thomas Cooper, more than a year and a half after it was filed.

The driver carried coverage through National Indemnity Company. Her counsel, Roger H. Weede, argued that the 15-year-old uncle who had been walking with the boy shared the blame for what happened on the street that morning. Dr. Robert Niebler testified for the plaintiffs, and Dr. Randal Wojciehoski testified for the defense. To prevail, the family's lawyers had to show that the way the van was driven caused the death and to answer the comparative-fault theory aimed at the teenager. Before trial, the most the defense had offered to settle was $130,000. The family had asked for $1,000,000.

On December 18, 2008, the jury sided with the family. It found the van driver 85 percent negligent and the uncle 15 percent negligent. The total damages came to $633,682: $56,332 in medical expenses, $2,350 in funeral costs, $300,000 for the boy's conscious pain and suffering, and $275,000 for the mother's loss of her son's society and companionship.

Wisconsin applies comparative negligence, so the 15 percent of fault assigned to the uncle reduced what the family could collect from the driver to her 85 percent share. Even after that reduction, the award came to roughly $538,600, more than four times the highest offer the defense had put on the table before trial.