A lawsuit against Byron Say, who allegedly knocked Lisa Wilson off of a motorcycle and then dragged her under his rental car more than three years ago, took another step forward yesterday when 5th Circuit Chief Judge Randal Valenciano ruled in Wilson’s favor regarding a trio of pre-trial motions.
Assault and battery and infliction of emotional distress claims, so-called “intentional” torts, plus punitive damages designed not to compensate Wilson but to punish Say based on those claims, survived a motion for summary judgment filed by O‘ahu-based attorney Robert Mash.
Valenciano determined that Say’s intent at the time of the incident is an issue of fact that should be decided by a jury.
“Now is not the time to dispose of this claim,” he said in denying Mash’s motion.
Proving Say’s intentions may have been nearly impossible in a criminal trial, where the burden of proof is “beyond a reasonable doubt.” But Teresa Tico, Wilson’s attorney, will have the opportunity to provide circumstantial evidence during the civil case in an attempt to convince jurors that Say’s behavior was not just negligent, but “more likely than not” intentional.
Tico and Wilson also prevailed on a pair of motions compelling Say to answer questionnaires covering topics such as his previous criminal history and assets. Mash, who declined to comment for this story, will have until Oct. 31 to secure Say’s responses, a task that could prove tricky as Say remains incarcerated on the Mainland.
A fourth motion, seeking to declare a new witness for the plaintiff, was delayed until closer to trial, which was previously scheduled to begin Monday but was stuck behind other priority cases and continued to Dec. 1.
Jamie Dillon, a 26-year-old student from Madison, Wis., was visiting Kaua‘i and traveling south toward the Hanalei Bridge with friends when he witnessed the incident. Tico said Dillon originally told police that Say accelerated as he neared the motorcycle and fled the scene on foot after the collision.
“The Judge made the right decisions on all the motions,” Tico said after the hearing. “Lisa did not have her day in court during the criminal proceedings, but hopefully she will have her day in civil court.”
After the June 25, 2005, incident, Say quickly pled guilty to a petty misdemeanor charge of operating a vehicle while under the influence of an intoxicant. According to District Court records, a toxicology report revealed that Say was high on morphine, methamphetamine and amphetamine.
Prosecutors had been preparing to charge Say with first-degree negligent injury and causing an accident involving serious injury, felony offenses, but Say’s attorney argued his guilty plea and double jeopardy protections precluded the state from amending the charges.
While Wilson’s substantial injuries and Dillon’s eyewitness testimony were never considered by a jury, justice was eventually served when Say was sentenced to 25 years in prison in a separate case in which he faced a variety of drug and other charges.
• Michael Levine, staff writer, can be reached at 245-3681 (ext. 252) or via e-mail at email@example.com