Family cannot sue driver who struck and killed their sibling

Carol Zink's car struck David Kemeny and killed him, although she never saw him and thought she hit a deer.  Her cell phone records showed that she was on the phone during this approximate time period, but did not prove that she was on the phone at the moment of the impact.  Kemeny was intoxicated at the time and wearing dark clothes. His family argued that the facts  of cell phone use and Zink's failure to see Kemeny created an inference of negligence sufficient to create a question of fact for the jury regarding her negligence. 

The Court of Appeals disagreed and allowed the claim to be dismissed.  Since there was no evidence to refute Zink's claim that she was traveling in her lane, under the speed limit and not on her phone at the time of the impact, the Court held that Kemeny's family's claim of negligence by her was purely speculative.  It also held that Kemeny's .21 blood alcohol would render him more than fifty percent at fault and therefore unable to pursue a claim against Zink, in any event.