Blame spreads in deadly Delray crash
Lamborghini driver’s lawyer points finger at city, victim and Uber
The multimillionaire whose yellow Lamborghini killed an Uber driver is spreading the blame to everyone involved: the ride-hailing service, the city of Delray Beach and even the 82-year-old man who died.
Roger Wittenberns is awaiting trial on DUI manslaughter and other felony charges over J. Gerald Smith’s death in 2016. Police say the 62-year-old fitness club mogul was going 75 mph and had twice the legal limit of alcohol.
But in recent civil court papers, Wittensberns, 62, contends Smith ignored a stop sign to respond to an Uber call and violated his right-of-way. And he claims the city failed in its responsibility to fix a “known dangerous intersection.”
What is undisputed: At 4:36 p.m. Sept. 21, 2016, the Lamborghini Murcielago slammed into Smith’s silver Buick Enclave in the intersection of Federal Highway and Northeast First Street. And it happened minutes after Wittenberns had cocktails at a nearby downtown Delray restaurant.
Smith, a retired real estate agent who drove part time for Uber, had been expected for dinner at his Boynton Beach home. He was dead on arrival at the hospital.
Wittenberns’ longtime attorney Manuel Kushner says his friend is an “honorable person” caught up in “a very unfortunate situation.”
“He feels horrible about what happened,” he said.
The crash
Wittenberns, an exoticcar connoisseur, began the day of the fatal crash with a trip to his doctor for back pain injections. He later stopped at a body shop to pick up the Lamborghini.
Then, at 2:30 p.m., he arrived at City Oyster on Atlantic Avenue for a meal and drinks with his now-wife Peggy Ann McQuiggin. She drove separately, in a yellow Porsche.
The table check listed three Long Island iced teas, and “3 Cosmo, 3 Goose 4 oz.” The couple continued on to the bar, purchasing another Long Island iced tea, a vodka martini and a “Goose 4 oz,” records show.
The pair paid the bill at 4:20 p.m. and left several minutes later.
Police say Wittenberns and McQuiggin, in their sports cars, headed east on Atlantic and then north on Federal, which has a posted 35 mph speed limit. Witnesses said both cars blew by, which Wittenberns later disputed.
“At my age, you buy a Lamborghini because it looks cool. Everybody knows it goes fast, there’s no question. But you don't have to be a jackass and go fast, so I was going maybe 30 [mph],” Wittenberns told police.
But investigators determined the Lamborghini reached at least 75 mph when Smith’s SUV pulled out from a stop sign at Northeast First Street.
The front end of the Lamborghini plowed underneath the Buick SUV, sending it spinning. The Lamborghini then hit a parked Mercedes, pushing it backward.
Wittenberns went to the hospital, where doctors treated cuts on his head, face and legs.
A blood sample taken by a nurse less than an hour later showed a 0.15 bloodalcohol level, nearly twice the legal limit of .08, reports show. A blood sample obtained through a court warrant, more than nine hours after the crash, showed no presence of alcohol.
Wittenberns was arrested last June and he remains on house arrest at his $2 million estate home in Delray under the terms of a $450,000 bond. His trial could be scheduled during a hearing later this month.
Defense attorney Marc Shiner said while the case is a “horrible tragedy,” the police report states Smith “failed to yield right of way.” However in Wittenberns’ arrest report, police said he drove in a “grossly negligent manner without concern for the safety of others and caused J. Gerald Smith’s death.”
And it wasn’t Wittenberns’ first trouble behind the wheel. His driver’s license was suspended for six months after a 1999 DUI arrest for a blood-alcohol level of 0.15, according to state records.
The lawsuits
The James River Insurance Co., which insured Smith’s driving for Uber, sued Wittenberns in Broward and Palm Beach County circuit courts. Lisa Smith, the victim’s widow, filed a separate wrongful death claim, which was resolved last year with an undisclosed settlement.
In the Broward action, the insurance firm accused Wittenberns of “fraudulently” trying to hide millions of dollars in assets, preventing a potential recovery over the crash. The lawsuit argued Wittenberns moved quickly after the crash to sell mortgages on his properties in Lighthouse Point and Fort Lauderdale to someone he knows.
But Wittenberns, in a sworn statement, said he had been looking to unload one of the properties and got a decent offer from a buyer he had never met before. Wittenberns also said he’s free to do what he wants with his real estate holdings and money, until he’s ordered by a court to pay a judgment.
He said he pocketed $4.9 million in a “fair market” deal.
Wittenberns acquired much of his wealth in the health club business, from his start with fitness guru Jack LaLanne in the 1970s to his ownership of Lady of America and later his leadership of a company that used to control The Zoo Health Clubs.
For reasons not stated in the court file, the insurance company dismissed the lawsuit in January. Attorney Jaime Pozo did not respond to multiple calls to his Miami office.
But the firm continues to pursue a lawsuit against Wittenberns in Palm Beach County, contending the Lamborghini driver must reimburse them for the car insurance policy payout of at least $250,000. In December, a judge denied Wittenberns’ attempt to get this lawsuit tossed and ordered him to respond to the claim.
Wittenberns’ attorney, Michael Robb, argued the claim is misguided for several reasons. Among them: the Uber driver’s negligence for violating Wittenberns’ right-of-way, and Uber’s negligence for distracting Smith to the point the retiree pulled into traffic.
Uber’s media office did not respond to a request for comment.
Wittenberns’ lawyer also took aim at the city of Delray Beach, for not making “this intersection safer” with a traffic light and by taking no action to remove an illegal, temporary fence “which obstructed motorists view of the intersection.”
City Attorney R. Max Lohman said he was not aware of the allegation, and it’s possible the city will have to “vigorously defend” its interests.
“City was not negligent in this matter, neither commission nor omission,” he wrote in an email.
Traffic signals are controlled by the state Department of Transportation, which studied the intersection after the crash and a public outcry for a light.
While engineers determined a traffic signal still isn’t warranted, the agency made other improvements including relocating street signs, and installing two new signs warning that “traffic on Federal Highway does not come to a stop at the intersection,” spokesperson Guillermo Canedo said.
Wittenberns said he had no warning of danger.
“The next thing you know, a car comes out of God knows where on the right-hand side, crosses the street,” Wittenberns told an investigator less than 12 hours after the crash. “There’s a car in front of me, and I could not stop or slam on the brakes or anything.”