ELKHART — Elkhart is not responsible for pedestrian deaths that happened along Beardsley Avenue in 2017 because the road has not been redesigned in the past 20 years, lawyers for the city say in response to a negligence lawsuit.
The survivors of an Aug. 26, 2017, pedestrian accident and the family of three other people who were killed claim the city was careless and negligent in failing to maintain the sidewalk. They also say in the lawsuit that the city was aware of vehicles driving over the curb at the intersection of Beardsley Avenue and Cassopolis Street in the past.
The suit was filed in February in Elkhart County court by Allison Mikel-Smith and Bradley Smith, who survived the accident, and by the families of the three who were killed. Eight-month-old Dolly Smith, 11-year-old Courtney Smith and 22-year-old Shawn Wolcott died after a vehicle driven by 43-year-old Leonard Grosswiler left the roadway and struck them.
Grosswiler, of Mishawaka, pleaded guilty and received a 15-year sentence. His passenger, 41-year-old Penelope Grosswiler, admitted to helping him cover up the crime by cleaning and hiding the vehicle, and was sentenced to two-and-a-half years.
In its response to the lawsuit, lawyers for Elkhart deny allegations that the deaths and injuries were a direct result of negligence by the city.
They deny that the city acted negligently in failing to maintain the sidewalk or to provide warning signs ahead of the lane reduction at the intersection. They also deny the allegation that the city was aware of a recurring problem with vehicles failing to negotiate the lane transition and driving over the curb and onto the sidewalk in the same area where Grosswiler struck the pedestrians.
The response was filed in April on behalf of the city by attorneys with a Schererville law firm.
It also includes a number of points in defense of the city, such as a claim that Elkhart is immune from the lawsuit because the accident occurred at least 20 years after the section of road was designed.
“(T)he intersection of East Beardsley Avenue and Cassopolis Street, the section of East Beardsley Avenue in the immediate vicinity of the accident, as well as the sidewalks located at the intersection of East Beardsley Avenue and Cassopolis Street and on East Beardsley Avenue in the immediate vicinity of the accident have not been designed or substantially redesigned within the past twenty years, and therefore defendant is entitled to immunity under” Indiana law, the filing states.
The response also claims the plaintiffs may have voluntarily assumed the risk and may have contributed by their own negligence.