JACKSONVILLE, Fla. – The lawyer who filed a lawsuit against a driver who hit two pedestrians, killing one and severely injuring another, said he doesn't believe the driver should have been on the road.
The driver, Michael Fortunato, pleaded no contest last year to careless driving, failure to yield to a pedestrian and driving with an expired license in the 2013 crash.
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The crash at the intersection of San Jose Boulevard and Haley Road killed 57-year-old Esther Ohayon and left her daughter, Orly Ohayon, who was 16 at the time, critically injured.
The lawsuit against Fortunato says that not only did he have an expired license at the time of the crash, he actually failed a Department of Motor Vehicles eye exam when he tried to renew his license two weeks after the crash.
"Mr. Fortunato made comments to the troopers that he knew his eyesight was not as good in the dark or at night," said attorney Angelo Patacca, of the Terrell Hogan law firm. "They certainly had at least suspicions that he knew about his vision problem."
The crash happened at 8 p.m. on Sept. 13, 2013. Orly Ohayon and her mother were crossing San Jose Boulevard from west to east. Orly Ohayon was left with a long road to recovery, but her lawyer said there's one thing she can't recover from.
"She will forever wear the scars of this accident. Significant to her, and obviously to her brother and two sisters, is that they lost their mother in this accident," Patacca said. "A little more particular to her, because she lost her mother at the scene."
Fortunato told investigators he didn't see the Ohayons as they crossed the road to get to services at Etz Chaim Synagogue.
This was the second time Fortunato hit and killed a person with his vehicle and did not face criminal charges.
Fortunato was never criminally charged in a case in 2009, when police said he hit and killed a 6-year-old boy in a separate crash. The FHP said because Fortunato was not drinking or on his cellphone, he wasn't driving while distracted. Therefore, authorities had no criminal recourse to charge him.
The lawsuit filed by Orly Ohayon's attorney says Fortunato had a degenerative eye condition called retinitis pigmentosa, which causes poor peripheral vision. The suit says that's why Fortunato didn't have a license. It alleges he didn't try to renew it, because he feared he would fail the eye exam. He went to DMV to renew it two weeks after the crash, and he did fail the eye test.
After the 2013 accident, the Florida Department of Transportation made several improvements to the traffic signal at the intersection. They increased the pedestrian walk time from 44 to 52 seconds during the Sabbath to accommodate the large number of people walking to the synagogue.
Engineers also installed sensors to automatically activate the walk signal without having to push the button since Orthodox Jews are not to operate any electrical equipment on the Sabbath.
Ohayon's lawyer said those changes are helpful, but he doesn't know if it would have made a difference in the crash. Fortunato was not charged criminally, but he was fined more than $1,100 and had his driver's license suspended for six months after pleading no contest to his civil charges.
"At this point, based on the information we have, we don't think he should have been behind the wheel," Patacca said. "If he personally had questions about his night vision or if he actually knew he had a vision problem, society asks that we all act reasonably."
Fortunato did not answer at his home Tuesday when News4Jax stopped by to request an interview.
Patacca said that Fortunato has not been served with the lawsuit yet, but he will be in the coming days.