Father, son did not make use of 'adequate' time for discovery, summary judgment motion says

John Suayan, Galveston Bureau Apr. 8, 2013, 1:29pm

GALVESTON - A Brazoria County woman sued last year for allegedly running over an Alvin boy's foot has filed a motion for summary judgment. 

In recent court documents filed March 20 before the Galveston County 212th District Court, Algoa resident Debra O'Connor asserts "there is no evidence on an essential element of a claim upon which [David Mihailovich] has the burden of proof at trial."

Mihailovich accuses O'Connor of causing the incident in question on Dec. 5, 2007, when she failed to yield to his son, then-11-year-old Michael, who was riding his bicycle, according to the original petition entered March 19, 2012.

The suit explains that the younger Mihailovich, who joins his father as a co-plaintiff in the litigation, was following a car carrying his brother and his brother’s friend near his parent’s home in the 4600 block of Singletary Street.

The vehicle then stopped to make a right hand turn onto nearby Fir Road, prompting the child to brake by placing his feet on the ground.

O’Connor, doing business as Peanut’s Towing, drove a company-owned Ford F-250 pickup truck on the westbound lane of Fir Road and subsequently turned left on Singletary after the car which the child was following finished turning right.

The Mihailovichs' suit further states the defendant ran the boy's left foot over as she "was whipping around the corner," but failed to stop and render aid.

When one of the complainants' relatives went to O'Connor's residence and inquired about the subject accident, the respondent purportedly "replied in a rude, matter of fact tone," the suit says.

O'Connor's motion insists that the plaintiffs have failed to take advantage of the adequate time for discovery, arguing they have no proof she caused the auto-pedestrian collision.

A hearing is scheduled for April 19 at 9 a.m. while the case is slated to be heard before a jury on April 29.

Attorney James A. Cersonsky of Soule, Baldwin & Fanaff in Houston is representing O'Connor.

Case No. 12-CV-501

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