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Second cyclist unrelated to altercation, but driver could still be responsible

Posted by on August 21st, 2007 at 12:41 pm

“…when the intention to harm one individual inadvertently causes a second person to be hurt instead.”
-from Wikipedia’s definition of “transferred intent”

A KGW report and a police spokesperson have said that one of the cyclists injured in last Friday’s road rage incident was completely unrelated to the initial altercation between driver Johnny Eschweiler and cyclist Ben Ramsdell.

KGW reported that 41 year-old Timothy Mastne was riding in the opposite direction when he, “unintentionally pedaled into the path of the collision.”

According to the PPB’s Brian Schmautz, investigators concur with witnesses that claim that Eschweiler seemed to have only intend to strike one of the bicyclists (Ramsdell).

So, if Eschweiler only had intent to harm one cyclist, how can he be charged with two counts of assault?

According to a source close to the case, Eschweiler’s actions might make him responsible for Mastne’s injuries under what is known as “transferred intent.”

According to Wikipedia, transferred intent is:

“…when the intention to harm one individual inadvertently causes a second person to be hurt instead. Under the law, the individual causing the harm will be seen as having “intended” the act by means of the “transferred intent” doctrine.”

We’ll find out more about the charges Eschweiler will face (and more details) on Monday, when the first Grand Jury documents become public.

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  • Donald August 21, 2007 at 12:46 pm

    Excuse me, Professor Maus, but will \”transfered intent\” be on the mid-term?


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  • rixtir August 21, 2007 at 12:50 pm

    Trick question– there are no midterms in law school. 😉

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  • Martha R August 21, 2007 at 1:08 pm

    What about that new vulnerable roadway user bill that was just passed? How does it work?

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  • Jonathan Maus (Editor) August 21, 2007 at 1:10 pm

    \”What about that new vulnerable roadway user bill that was just passed? How does it work?\”

    Martha, the new vulnerable roadway users law only comes into play when someone is cited with \”careless\” operation of their vehicle.

    It is meant for people that have a momentary lapse of judgment that results in serious injury (like putting on makeup or adjusting the radio).

    This case has risen to a criminal felony because the vehicle operator intentionally ran down a vulnerable user…and therefore it does not apply.

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  • law schooled August 21, 2007 at 1:11 pm

    not true about no midterms, rixtir. you should know the answer is \”it depends\”. while most classes follow the traditional model of one exam at the end of the semester, there are other classes where the professor does indeed have a mid-term.

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  • DK August 21, 2007 at 1:47 pm

    Sounds like a game of pinball to me…possibly a successful pick-up of a 7-10 split by the driver? Can\’t wait to see the computer generated rendering of the actions of all involved…sounds pretty crazy!

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  • rixtir August 21, 2007 at 3:27 pm

    Jonathan, the KGW news story reported that \”Mastne\’s bike was totaled, and he says he doesn\’t have the money to replace it.\”

    I for one would be willing to contribute towards another bike for Timothy Mastne. Would it be possible for you to work with Mastne in setting up some sort of fund for that purpose on this site, to which those interested can make a contribution through paypal?

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  • Donald August 21, 2007 at 3:28 pm

    Thanks for the tip, Rix, but it was a double secret probation trick question:

    There IS a mid-term in Mass Media Law. You know all those little undergrads taking up space and making too much noise in the Law Library (or, as we called it, the Li-bary)?

    Yeah, that was us.


    (This is an interesting legal story, Jonathan. Keep up the coverage.)

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  • rixtir August 21, 2007 at 3:30 pm

    the Li-bary

    Hey, the same thing I call it!

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  • brettoo August 21, 2007 at 4:13 pm

    We\’ll need A.O. to weigh in authoritatively, but I\’m guessing \”transferred intent\” might work something like this: Larry, angry at Moe, aims pie at Moe\’s face, Moe ducks, pie hits Curly instead. Larry can be charged with assault vs. Curly based on his intent to cream Moe. Any qualified barristers here to confirm?

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  • Martha R August 21, 2007 at 4:46 pm

    Thanks for the clarification, Jonathan.

    As far as the totaled bike, the driver\’s insurance (assuming that he has insurance) should cover it. When I was hit by a car, the driver\’s insurance covered damage to my bike and paid for the day of work I missed (I didn\’t have any medical bills). There was no fault officially established, even though the driver took a left turn into me.

    The first step in helping Mastne replace his bike might be for one of the many lawyers reading this blog to take a break from the Li-bary and give him some advice about dealing with insurance companies. Anyone who does will get extra credit!

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  • hilsy August 21, 2007 at 4:57 pm

    Unfortunately Martha, there is fault already established in this incident and I\’m not sure that the insurance covers the case when their insured driver intentionally hits someone.

    The transferred intent may lead to the second charge of assault but it may also negate the insurance coverage of the second hit.

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  • rixtir August 21, 2007 at 5:09 pm

    Martha, I think it may be a while before Mastne sees any payment from an insurance company, if he ever does get a payment.

    First, no auto insurance company will pay a claim based on an intentional assault– they only cover negligent acts. Considering the fact that the driver is charged with assaulting Mastne, the driver\’s insurance company– assuming he insured– may decide to await the outcome of the trial before deciding whether to settle any claims. Whether a homeowner\’s policy would cover an intentional act is a question for an attorney.

    Second, there *may* be issues regarding Mastne\’s own negligence– for example, was he riding against traffic when he was hit?– raised by the driver\’s insurance company to limit or deny payment.

    For these reasons, I am willing to contribute– and believe me, I am in no position to donate to charity– to get him back on a bike when he\’s ready.

    Nevertheless, your suggestion that somebody who is qualified to offer him legal advice should take a break from the li-bary to help him with some sound advice is a good one.

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  • DK August 22, 2007 at 7:35 am

    Does anybody know if the driver even had insurance?

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  • woogie August 22, 2007 at 3:10 pm

    A coworker was hit and run a month ago.
    The driver is charged with felony hit and run causing bodily harm. The drivers insurance company will not stop calling him to settle up.

    Regardless of the charge the insurance company wants out of this ASAP and is ready to settle.

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  • rixtir August 22, 2007 at 3:42 pm

    He needs a lawyer if he wants to get what his case is worth.

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  • jeremy August 22, 2007 at 3:46 pm

    rixtir..you\’re assuming Johnny has some $$$…I really don\’t think any sizable settlement will come from this sadly…
    under 100,000$…Johnny, was, afterall, driving a Rav4…fairly indicative of his income (~median, I would assume).

    insurance will only pay up to what the deductible of his claim indicates I believe..I think by law we all have to carry either $50,000 or $100,000 per person per incident…something like that, I haven\’t reviewed my policy in awhile..

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  • rixtir August 22, 2007 at 3:55 pm

    No, I meant the coworker in post 15 who keeps getting calls from the insurance company. The fact that they are eager to settle immediately *may* indicate that they believe they have more to lose if they do not settle immediately.

    Even in the case of these two cyclists, they should both be consulting with attorneys. In addition to Johnny\’s auto insurance– which *may* not cover an assault like this– Johnny may have homeowner\’s insurance– which again *may* or may not cover this assault. Johnny may also have assets such as a home. Furthermore, under victims rights laws, the two cyclists have a right to have their voice heard during the criminal trial– for example, to be consulted about any possible plea deals.

    The two cyclists should definitely consult with an experienced attorney in order to understand what their rights are, and to help determine what their options are.

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