Shirin Ukani was killed in Coral Springs, Florida when she was struck by a 2015 Mercedes-Benz driven by Richard Antosek. What makes this case an even worse tragedy, is the fact that Ukani was 74 years old.
While the case is still being investigated, news reports indicate that Antosek may have been under the influence of alcohol at the time of the crash.
As we have discussed many times before in other traffic fatalities, this case may come down to a question of causation. In other words, what caused the collision between Antosek’s Mercedes and 74 year old Shirin Ukani? Did Ukani cross the street in a dangerous place? Was Antosek driving drunk?
Whether we are talking about a criminal prosecution against Richard Antosek for DUI Manslaughter or a civil lawsuit filed by the surviving family of Shirin Ukani, the question of causation will be a central focus. In other words, what circumstances led to Ukani being hit by Antosek’s car?
Was Ukani located in a part of the street where a pedestrian is not supposed to be? For instance, did she cross the roadway in a place lacking a designated cross-walk? Did she jaywalk?
In the alternative, did Antosek’s potential impairment from alcohol cause the crash? Was he impaired to the point where he could not safely operate a motor vehicle, make decisions in time of emergency, or otherwise exercise good judgment?
This leads me to my main point, in Florida, there is a concept called “comparative negligence” that may or may not apply to the civil aspect of this case (criminal will be addressed below). When it comes to comparative negligence in a civil lawsuit for damages, we are talking about an accident that occurs when both parties do something wrong to cause the ultimate outcome.
For instance – and I am just making this up for argument’s sake – lets assume a pedestrian crossed a roadway in the middle of the street where there is no designated crosswalk. At the same time, lets further assume an on-coming car is driven by a drunk driver who fails to see the pedestrian in the roadway because of his impairment.
In such a circumstance, a collision between the pedestrian and the drunk driver is clearly due to the fact that the drunk driver did not see the pedestrian and hit that person as a result.
HOWEVER, this is where the concept of comparative negligence comes in.
Even though the crash between the drunk and the pedestrian happened because the drunk didn’t see the pedestrian, the accident would not have happened if the pedestrian had not jaywalked in the middle of the street.
Crosswalks are designated for pedestrians for the simple reason of avoiding accidents. They are clearly marked, often times with the benefit of stop lights, street lights, special paint, proper signage, and they are located in places where drivers expect to see them. Collectively, this reduces the risk of a car versus pedestrian accident substantially.
So what is a jury to do?
In Florida, when an injured party contributed to the causation of the accident that lead to his/her injuries, a jury is also asked to apportion the extent that person’s contribution to causation to diminish the award they get.
For instance, if a jury decided that the drunk driver was 80% at fault and the pedestrian was 20% at fault and also decided that the injuries were valued at 1 million dollars, then the net award given to the pedestrian would be reduced to $800,000.
How Does this Affect the Case of Shirin Ukani?
First and foremost, attorneys representing Shirin’s family in the wake of this tragedy need to perform a very thorough independent investigation. This will include obtaining copies of all police reports, crash reports, witness statements, medical records, toxicology reports, medical examiner reports, photographs, videos, and most importantly, the police Traffic Homicide investigation report. Additionally, private investigators need to scour the scene of the accident for potential video surveillance cameras and eye witnesses missed by police (it happens all the time).
That said, two things come of extreme importance come to mind –
First, where in the roadway was Shirin hit? Was it in the middle of the street or on the shoulder? Was she hit in an area where pedestrians belong or in an area clearly to be avoided by pedestrians?
Second, what evidence proves Richard Antosek was impaired? Since this was a traffic accident involving death, police were allowed to take a mandatory blood draw from Antosek for analysis by the Broward Medical Examiner’s Office. In about 30 days, Broward toxicologists will have a report that details what was in Antosek’s blood, including their concentrations.
At the same time, there may be other evidence that proves impairment. This can include performance of field sobriety exercises by Antosek. These would normally include commonly known exercises, such as the walk and turn, finger to nose, horizontal gaze nystagmus, and others.
Officers and fire rescue responding on scene may have also smelled alcohol on Antosek as well as observed a flush face, red, bloodshot watery eyes, and may have also detected a slur of his speech. Additionally, Antosek himself may have admitted to drinking that night.
Effect in a Criminal Case
DUI Manslaughter is a very complicated case to litigate. In essence it has two parts. First, prosecutors must prove that the person was guilty of plain old DUI. Meaning, that the accused drove or was in actual physical control of a motor vehicle, while under the influence of alcohol, controlled substances, or specific chemical substances, to the extent that his/her normal faculties were impaired or he/she had an alcohol level of 0.08 or higher.
Second, once prosecutors establish the existence of DUI, they must then prove that the DUI caused or contributed to the victim’s fatality. This is where questions of causation come in.
Even if the driver was impaired, that does not automatically mean he/she is the cause of the accident. In criminal court, the burden of proof is far greater than in civil court.
That said, it is rare for drunk drivers to beat the fatality portion of a DUI Manslaughter case, unless there is contributing behavior by the pedestrian. For instance, there are many cases where the victim themselves is also drunk.
For instance, there are cases where a drunk victim stumbled into traffic irresponsibly, causing an accident that led to his/her demise. In such cases, juries may find the driver guilty of DUI but not guilty of manslaughter… it has happened before. Equally, there are juries that will vote guilty on all counts as soon as they hear the accused was DUI – regardless of what other evidence or lack of evidence exists.
Honestly, it is a 50-50 crap shoot for the accused. However, when juries vote not guilty on manslaughter, but guilty on DUI, it is usually premised on a question of causation.
However, facts that explain causation, prove impairment, and what exactly happened in the crash that killed Shirin Ukani are still being gathered by investigators. Ultimately, the evidence will paint a much clearer picture of where the fallout will land.
At the end of the day, the most important way to draw any conclusion about this case is for the attorneys and law enforcement to complete a thorough case investigation. Conclusions in court must be supported by evidence and nothing else.
If convicted of DUI Manslaughter, Antosek may face a sentence between 4-15 years in Florida State Prison. If Antosek is also accused of failing to render aid, such as by leaving the scene or by failing to call 911, then he may face an enhanced sentence up to 30 years in prison.
Needless to say, even if Shirin Ukani did do something wrong, like cross the street at the wrong place, this error is gravely overshadowed by any evidence that suggests that Richard Antosek was drunk. In a Broward DUI case from a few years ago, a jury awarded a multi-million dollar verdict to the family of an elderly woman who was killed by a drunk driver. In fact, the Ukani family may be entitled to very substantial punitive damages for Kirin’s death.
Most important of all, my condolences go out to the Ukani family. This is no way to lose a loved one.