December 30 2006- Wrongful death suit alleges police chase was unnecessary

The family of an 80-year-old Whitefish Bay, WI man killed in 2004 by a motorist fleeing police has filed a wrongful death lawsuit against four municipalities and two counties whose officers and deputies were involved in the pursuit.

The lawsuit, filed on behalf of Bernice Fagan in Milwaukee County Circuit Court, maintains that the police departments involved in the chase failed to consider whether the severity of the crime made it necessary to pursue the motorist at high speeds.

"This wasn't a case where you had a dangerous person that police needed to pursue," the family's attorney, Mark L. Thomsen, said. "At the start, police knew who she was, and they should have never pursued her."

But Milwaukee attorney Greg Gunta, who is representing Glendale and Cedarburg in the lawsuit, said Tuesday that those cities' officers acted properly.

"It's a tragic situation," Gunta said. "Everyone's hearts go out to the Fagan family. Fagan wasn't doing anything wrong.

"But the problem is," Gunta said, "because someone has suffered a tragic death, it doesn't mean that either Glendale or Cedarburg are responsible for that death."

The chase started when 24-year-old Lara M. Strack of Random Lake tried to cash a forged check at a Saukville bank.

The chase, which reached speeds of more than 100 mph, began in Saukville and from there wound through Cedarburg, Mequon and Glendale.

Benjamin Fagan was killed when the vehicle driven by Strack slammed into the car Fagan was driving at N. Port Washington Road and W. Hampton Ave.

The lawsuit, filed Dec. 22, points out that after the fatal crash, the Ozaukee County Sheriff's Department created a countywide vehicle pursuit policy, which took effect on Feb. 16, 2006.

The lawsuit names Strack as a defendant, along with Saukville, Ozaukee County, Cedarburg, Mequon, Glendale and Milwaukee County.

Driver got 15 years

Strack was convicted of reckless homicide and sentenced to 15 years in prison. The lawsuit seeks compensatory damages on behalf of Fagan's estate and his wife, Bernice, as well as punitive damages.

Thomsen said Benjamin Fagan's age will have an impact on the amount of the damages.

But Thomsen maintained that even though the Fagans were older, "that does not diminish the value of their relationship. It probably enhances it."

A spokesman for the Wisconsin County Mutual Insurance Corp., which is representing Ozaukee and Milwaukee counties and Saukville, declined to comment.

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