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SPRINGFIELD, Mo. -- A teenager's family is suing after their son was killed while sitting in the middle of a roadway. Police say the driver who hit him was texting.
Justin Clark's family say they are after justice. Justin was 17 years old.
The crash happened early last June 2 on Walnut Lawn Street just west of Campbell Avenue near the Walmart store.
In Missouri, it is perfectly legal to text and drive as long as you are at least 22 years old. In the crash in June, the driver was 41 years old. Prosecutors say she was inattentive but it was not criminal.
William Clark's life will never be the same.
"No parent should ever have to bury a child," he said.
His son, Justin Clark, was killed last June at about 1 a.m.
"If she (the driver) would have been paying attention, she would have seen him," Clark said.
Police say it would have been difficult for the driver, even with both eyes on the road, because Justin was sitting the middle of the street wearing dark colored clothing.
The driver said in an off-camera interview that she believes Justin was suicidal. Justin's dad says that's not true. Instead, William Clark says, Justin was mentally challenged.
"His mental age was probably around 12 or 13, but he was 17," Clark said. "The fact that she is getting away scott-free, that's the part that just aggravates me to no end."
The report says Justin and a friend had gone to an event downtown as part of the monthly First Friday celebration. They returned to the friend's apartment, but had an argument. Justin's hand was accidentally shut in a car door, and he set out to walk home. He was struck and killed about 15 minutes later.
Springfield police simulated the accident late one night, and had an officer wearing similar clothing to Justin's clothing sit where Justin sat in the road. Another officer drove down the road to test sight distances and the chance that an alert driver could have stopped or swerved in time to miss Justin as he sat in the road.
"Although Justin put himself in a position of jeopardy by unlawfully sitting in the roadway under the above conditions, an alert and attentive driver could have been able to detct Justin at least as an object in the roadway in front of them before a collision," an investigator wrote.
The police report says an alert, attentive and sober driver could have stopped short of Justin by 15 to 45 feet.
"In this case, (the driver) was not attentive or alert to the roadway ahead of her because she was texting and manipulating her cell phone. By the time (she) detected Justin ahead, she was so close to him she could not begin braking until after the collision and she was a distance east of Justin's final rest. According to the distance study that is applied to this crash, (she) could have braked and stopped prior to colliding with Justin if she had been attentive and alert to the roadway ahead of her," the investigator wrote.
"Under the law, this one falls within the civil system," said Greene County Prosecuting Attorney Dan Patterson.
He says the 41-year-old woman was negligent in her driving but, without any other contributing factor like alcohol, it is not criminal.
"Whether you are texting or looking at your phone or dropping something in your car, when you are inattentive, you're committing a negligent act; you are not paying attention to the road when you are driving, a duty we all have. But that's an act of simple negligence. So our system has both civil justice and criminal justice and that's probably something that is appropriate, without speaking to that case specifically, for a civil lawsuit as opposed to criminal sanctions. That is the difference in the law," Patterson said.
Clark is seeking civil compensation, and is now on a mission to change all drivers' behaviors.
"We need to change the law here in Missouri; we need to change the law nationwide," he said.
KY3 News is not releasing the woman's name since she is not criminally charged.
UPDATE/CORRECTION: Chief of Springfield police Paul Williams says there is no internal investigation in this case. KY3 was previosuly told by authorities that there was one, but that is incorrect according to Williams. Mr. Clark's family feels like there is a conflict of interest because the driver worked for Springfield Mortuary, a company that works closely with the Springfield Police Department.
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Patterson declined to charge the woman with failing to exercise the highest degree of care, which some people call careless and imprudent driving.
Missouri Statute 304.12: Motorists to exercise highest degree of care
1. Every person operating a motor vehicle on the roads and highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.
2. Any person who violates the provisions of this section is guilty of a class B Misdemeanor, unless an Accident is involved then it shall be a class A misdemeanor.
A class A misdemeanor is punishable by up to a year in jail, a class B by up to six months.