In such a case, if there were an aggressive lawsuit from the family of the deceased, it may not be too unreasonable to imagine a countersuit. Having killed someone is certainly psychologically damaging, and may require a lifetime of therapy, etc.

From what I gather, the guilt and emotional pain that comes from having killed someone.

For what damages? One of the essential elements of a tort claim is damages caused by the negligence. All the things you list are perfectly fine as evidence of comparative negligence to reduce plaintiffs’ recovery. However, $1Million in damages on a theory of liability that I ran over and killed your son because I didn’t see him, is hard to imagine as a good faith theory of liability. Emotionally, it doesn’t sit well.

Maybe, as Ron Miller indicates, this is that exceptional case in which there are outliner facts which support liability on the part of the dead kid and/or his parents. Those are rare cases, but, if the facts justify the tort claim, are valid claims. However, the attorney who advises a client to rely on the “you sued me so I’ll sue you theory” borders on sanctionable conduct.

There are, also, tactical considerations. If the counter claim raises potential liability covered by liability insurance, then the insurer will have to fund the original plaintiffs/defendants in counter claim. A lot of the same facts, evidence and expert opinions both support defending the counter claim and prosecuting the original negligence claim. Appropriate experts may opine “Of course you should have seen him. You were diving distracted — cell phone, texting, eating, fiddling changing radio stations, etc.”; or, “You’re night blind.”; or “Your brakes weren’t up to standard.” To defend a $1Million claim, an insurer is likely to put more resources into a case than the plaintiffs’ lawyer acting alone could afford. And, when you go for depositions, there are 2 sets of lawyers who get a shot at your client — the original plaintiffs’ lawyer, and the defendant in counter-claim’s lawyer. While 1 lawyer might overlook something, 2 working together will not. Further, while the first lawyer is questioning your client, the second is watching, looking for those hints of body language that can indicate that your client is holding back or trying to cover some unfavorable facts. And, if you think that is tough in a deposition, wait till the 2 lawyers get to do a tag team in front of a jury.

This may be the exceptional case in which there are facts supporting a counter claim. However, the facts revealed by the news report don’t indicate that. Rather, the news report indicates that what plaintiffs’ counsel will be able to argue “Not only did she run over my clients’ kid, a good kid riding his bike home for dinner, but she’s increased their suffering by suing them for $1Million for that dead boy’s blood she’s smeared all over her car with her reckless driving.”

In every case, the lawyer should have a strategy — developed at the beginning. Every action, every motion, every argument should have as its object, pushing that strategy forward. Too often, however, lawyers assert claims or file motions merely because they are provided for in the Rules of Civil Procedure. Not only does this waste effort and run up costs, it also can result in trapping the client and prejudicing the client’s case. Filing this type of counter claim should have a lot more behind it than “The Rules of Civil Procedure provide for counter claims” and “I (the attorney) can meet the minimum standards to avoid being sanctioned.” Mom and Dad were grieving parents before. Now they want your client’s head on a pike. At a minimum, you’ve greatly increased the amount it will take to settle, and that’s never a good idea for someone who ran over and killed a kid on a bike.

Bob