ITD seeks dismissal of wrongful death lawsuit

SANDPOINT — The Idaho Transportation Department is arguing for the dismissal of a wrongful death suit filed by the father of a pedestrian who was killed in a crosswalk.

Counsel for the department contends the suit filed on behalf of Anthony James Joerger was improperly served because the summons and complaint were not served on the secretary of state, according to court documents.

Peter J. Johnson, the state’s attorney in the matter, further argues that time limits for service of court papers had expired and cited other filing errors.

A hearing on the defense motion Joerger, 46, was killed while walking in a Fifth Avenue crosswalk at Cedar Street in the fall of 2009. He was struck by a motorist who was westbound on Cedar and turning south onto Fifth.

Mark Harley McElroy was turning left against a red light after coming to a stop, according to Idaho State Police.

Although Joerger was using the crosswalk with the pedestrian signal in his favor, McElroy did not see him.

State police concluded McElroy’s inattention factored into the collision, but the Bonner County Prosecutor’s Office declined to charge him because the level of inattention did not rise to a criminal level. Moreover, the intersection was dimly lit and Joerger was clad in dark clothing.

Joerger was a member of the city’s Pedestrian Advisory Committee, which makes recommendations to the City Council.

Joerger’s father, Clarence, filed a wrongful death suit last year against the city and ITD, both of which have jurisdiction where the collision occurred.

Counsel for Clarence Joerger, Richard Kuck, contends poorly functioning streetlights at the intersection failed to illuminate the crosswalk. Kuck also argues that the pedestrian signal was improperly sequenced, which created an unsafe environment for pedestrians.

Bentley Stromberg, the city’s counsel in the suit, denied the allegations raised in the criminal complaint, court records show. Stromberg contends Anthony Joerger’s negligence was equal to or greater than that of the defendants and that the city is immune from liability because the layout of the intersection was in substantial compliance with accepted engineering and design standards.

McElroy’s turning maneuver was legal at the time of the collision. However, signs were later posted which forbid traffic on Cedar from accessing Fifth against a red light.