Jury awards $57,756 in lawsuit against city of Mitchell

Two tourists injured when they were knocked down by a city bus in 2009 were awarded $57,756 by a Davison County jury Wednesday at the courthouse in Mitchell.

The city of Mitchell, and Julie Payne, a former city employee, were named in the suit. The city belongs to the state risk pool to cover its costs in lawsuits. Mayor Lou Sebert said afterward that Payne will not be required to cover any portion of the award.

Richard “Rex” and Mary Ellen Russell, of Sabetha, Kan., said they accepted the verdict, which was between the amount they asked for and the amount the city thought was reasonable.

“We asked them to be fair, and if that’s what 10 people think is fair …,” Mary Russell said. Ten out of 12 jurors had to agree to reach a verdict, and it appeared to be a unanimous verdict.

“I thought the amount we offered was fair,” she said. “I thought it was fairly low to begin with.”

The Russells asked for $100,000 total for their medical bills, hotel costs and pain and suffering.

The city did not dispute it was at fault in the accident. It agreed to pay Mary Russell’s medical bills, which totaled $10,874.38, and Rex Russell’s bills, which were $5,826.62. It also agreed to pay $116.64 for a hotel bill generated when the Russells were forced to stay in Mitchell the night of the accident.

The dispute was over compensation for pain and suffering.

In his closing statement, Douglas Deibert, the Sioux Falls lawyer representing the city and Payne, said since the Russells had almost completely recovered from their injuries, a settlement of $500 to $1,000 to Rex Russell was fair, and $2,500 to $4,000 to Mary Russell seemed appropriate.

Thomas “T.J.” Von Wald, the Sioux Falls lawyer representing the Russells, said his clients weren’t trying to get rich. They could have asked for much more, Von Wald said, but just wanted what they felt was fair.

A panel of 12 jurors, seven of them women, rendered the decision at the end of the two-day civil trial that was heard by Circuit Court Judge Timothy Bjorkman. The jury was out for less than two hours, and that included selecting a foreperson and having lunch.

Von Wald said he does not plan to appeal the verdict, and he cannot imagine the city will do so.

Deibert said it is not up to him to decide if the city will appeal. Sebert said, “you need time to think about it.”

The accident occurred when the Russells were walking in a crosswalk toward the Corn Palace on June 18, 2009.

Payne, then a Palace Transit driver, turned her bus left off North Main Street onto Seventh Avenue and hit the Russells while they were in the crosswalk after the light changed and allowed the Russells to legally cross the street. Both were knocked down and taken to Avera Queen of Peace Hospital.

Rex Russell was knocked unconscious and suffered a slight concussion, bumps, bruises and scrapes, while Mary Russell suffered broken bones in her right hand and a laceration on her elbow.

The Russells were returning to their home in Sabetha, Kan., after a camping trip in the Black Hills when they stopped in Mitchell to see the Corn Palace.

The injuries they suffered have reduced their desire to travel, and they sold the fifth-wheel camper they had bought to see the country, they said in testimony Tuesday.

The defense did not present any witnesses, but Deibert, in his closing argument, said the settlement being sought by the Russells was “unheard of” and not fitting for the relatively minor injuries they suffered.

He “urged” the jurors to note how well the Russells recovered and how the treatment they sought resolved their injuries.

“I’m asking you to look at what the real proof is,” Deibert said.

In his closing statement, Von Wald asked the jurors to consider “that fateful day” and reflect on its impact on his clients.

He said the collision was “excruciatingly painful, forever damaging and financially burdensome” and would impact them for the rest of their lives. Rex Russell was a farmer and is a retired rural mail carrier, while Mary Russell is retired from her work as a financial consultant.

They had planned to tour the country in their retirement and were on their first major trip in their fifth-wheel camper when the Palace Transit bus hit them, Von Wald said. It altered their plans, and their lives, forever, he said.

“Be fair,” Von Wald said to the jurors. “Compensate them for what Julie Payne took away. They’re not the same. They never will be.”

Palace Transit Operations Supervisor Jolynn Hanson sat with Deibert. Sebert, who sat with him Tuesday, was absent. Mitchell Human Resources Director Billie Kelly and Brenda Paradis, who directs Palace Transit, were in the audience.

Payne, who no longer works for the city, did not appear during the trial.

The Russells stayed in Mitchell Wednesday night, their third night in the city during the trial. And they got one more tourist attraction off their to-do list.

While waiting for the verdict to come back, they finally toured the Corn Palace.

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