12 Am. Jur. Proof of Facts 3d 169
American Jurisprudence Proof of Facts 3d
Database updated January 2008
Categorical List of Articles
Motorist's Liability for Injury to Child Going to or from School Bus
Russell L. Wald, Ll.b.[FN*]
Topic of Article:
Proof that a motorist was negligent in injuring a child who was going to or leaving a school bus.
This issue may arise in a personal injury or wrongful death action.
ARTICLE OUTLINE
I Background
§ 1 Introduction; scope of article
§ 2 Duty of motorist toward children, generally; effect of presence of school bus
§ 3 Requisite care of motorist driving near school bus; negligence
§ 4 Regulation of motor vehicles approaching or passing school bus; effect of statutory violation
§ 5 Last clear chance
§ 6 Defense considerations
II Damages
§ 7 Checklist—Elements of damages
§ 8 Damages for injury to child
III Elements of Proof
§ 9 Checklist—Proof that motorist was negligent in injuring a child who was going to or from a school bus
IV Model Interrogatories
§ 10 Plaintiff to defendant
V Proof of Motorist's Negligence in Striking Child Going to or from School Bus
A Testimony of Infant Plaintiff
§ 11 Description of occurrence
B Testimony of School Bus Driver
§ 12 Introduction
§ 13 School bus route; description of school bus
§ 14 Procedure for discharging children
§ 15 Description of scene of accident
§ 16 Circumstances of accident
C Testimony of Eyewitness to Accident
§ 17 Description of occurrence
§ 18 Excessive speed of defendant motorist
§ 19 Failure of defendant motorist to stop
§ 20 Failure of defendant motorist to sound warning or take evasive action
D Testimony of Defendant (Cross-Examination)
§ 21 Description; condition at time of accident
§ 22 Circumstances of accident
§ 23 Last clear chance to avoid accident
VI Bibliography
§ 24 Textbooks and periodicals
Research References
INDEX
Absolute liability, § 6
Acceleration of motorist, § 5
Age of child, §§6,8
Anosmia, § 7
Anticipation, §§2,3,5–7
Antidepressants, § 8
Anxiety, §§7,8
Attorney fees, § 7
Avoidance of accident, §§2,5,6,20
Background of article, §§1–6
Behavioral changes due to medication, § 8
Bibliography, § 24
Burial and funeral expenses, § 7
Causal connection between child's negligence and injuries, § 6
Checklists, §§7,9
Childish instincts and impulses, generally, § 2
Circumstances of accident, §§16,22
Companionship and society, loss of, §§7,8
Comparative negligence, § 6
Concurrent negligent acts, § 3
Consortium, loss of, §§7,8
Construction and interpretation, § 4
Contributory negligence, §§5,6
Costs of action, § 7
Cross-examination of defendant, §§21–23
Crossing in front of school bus by motorist, § 4
Damages, §§7,8
Defense considerations, § 6
Depression, anxiety, and other mental suffering, § 7
Description of occurrence, §§11,13,17,21
Disability, § 8
Disfigurement, § 8
Drugs and narcotics, §§7,8
Duty of motorist toward children, generally, § 2
Earning capacity, loss of, § 8
Earnings, loss of, § 7
Earnings regression analysis, § 8
Elements of damages, § 7
Elements of proof, § 9
Emancipation of child, § 8
Enjoyment of life, past and future impairment of, § 7
Evasive maneuvers, §§2,5,20
Excessive speed, §§2,18
Exemplary damages, § 7
Expert testimony, § 8
Eyewitness to accident, testimony of, §§17–20
Familial environment, examination of, § 8
Flashing lights, §§4,5
Fright and shock, § 7
Funeral and burial expenses, § 7
Future acts and matters, §§7,8
Grief, § 7
Guardian or next friend, § 8
Home care attendants, hiring of, § 7
Horn, §§3–6,20
Immobilization, § 7
Instructions to jury, § 6
Interest, § 7
Interrogatories, § 10
Introduction to article, § 1
Last clear chance, §§5,23
Lights, §§4,5
Litigation fees and costs, § 7
Lookout, §§3,5
Majority, age of, § 8
Malice, §§7,8
Medical expenses, §§7,8
Medications, § 8
Mental suffering, §§7,8
Model interrogatories, § 10
Moving school bus, § 3
Negligence, §§ 3 et seq.
Net income, loss of, § 7
Next friend or guardian, § 8
Notice and knowledge, §§ 1 et seq.
Obstruction of view, § 6
Occupational therapy or training, § 7
Pain and suffering, § 7
Parents, damages recoverable by, generally, § 7
Partial disability, § 8
Past medical expenses, § 8
Pecuniary damages, § 8
Periodicals and textbooks, § 24
Permanent total or partial disability, § 8
Phantom pain, § 7
Physical capacities evaluation, § 8
Pneumonia, § 7
Police officer, signaling to proceed, § 4
Prejudgment interest, § 7
Preponderance of evidence, § 6
Presence of school bus, effect of, generally, § 2
Presumptions and burden of proof, § 6
Profits, loss of, § 7
Prosthetic devices, fees for, § 7
Proximate cause, §§3,5
Proximate contribution to injury, § 6
Psychological capacities evaluation, § 8
Punitive damages, § 7
Reasonable care, §§ 1 et seq.
Reckless or malicious conduct, § 7
Red signal lights, § 4
Regulation of motor vehicles approaching or passing school bus, generally, § 4
Route of school bus, testimony of school bus driver, § 13
School bus driver, testimony of generally, §§12–16circumstances of accident, § 16
description of school bus, § 13
discharging children, procedure for, § 14
route of school bus, § 13
scene of accident, description of, § 15
School bus stop, §§2,3
Scope of article, § 1
Sexual dysfunction, § 7
Shock and fright, § 7
Side effects, § 8
Signal lights, § 4
Sleep, harm from loss of, § 7
Slowing down of motorists, §§2–4
Smell, loss of sense of, § 7
Society and companionship, loss of, §§7,8
Sound warning, §§3–5,20
Speed of automobile, §§2–6,18
Standing school bus, passing of, § 6
Statutory violation, effect of, § 4
Stoplights, § 5
Stopping of motor vehicle, §§2,4–6,19
Stop sign arm, § 5
Strict liability, § 6
Sudden emergency rule, § 6
Support, loss of, § 8
Swerving to avoid accident, § 5
Tests, § 8
Textbooks and periodicals, § 24
Third persons, § 6
Thrombophlebitis, § 7
Total disability, § 8
Value of care provided, § 8
Violation of statute, § 4
Wages, loss of, § 7
Waiver of claim, § 8
Warnings, §§3–6,20
Waving with hand, § 5
Willful or malicious injury, § 8
Witnesses cross-examination of defendant, §§21–23
eyewitness to accident, §§17–20
infant plaintiff, § 11
mental distress of witness, § 7
school bus driver, testimony of, supra
vocational expert, § 8
Wrongful death actions, § 8
I. Background
§ 1. Introduction; scope of article
[Cumulative Supplement]
Motor vehicle-pedestrian accidents are the most common cause of serious injuries among young school-age children.[FN1] In the typical case, the accident occurs in a residential neighborhood,[FN2] and the child is usually struck while crossing the street between intersections, in the middle of a block.[FN3] One fact situation in this setting, in which young school-age children are particularly susceptible to being injured by motor vehicles, involves going to or from school buses.
This article discusses whether, and under what circumstances, a motorist is liable in a civil action for injuring a child who was in the street while going to or leaving a school bus.[FN4] The primary issue affecting the motorist's liability in such cases, and the focus of the article, is the duty of a motorist who is approaching or passing a school bus (see § 2). Another issue that may arise in such cases is the contributory negligence of the child. This issue is briefly treated in connection with a discussion of defense considerations (see § 6), but is more fully discussed in another article.[FN5]
For purposes of the present article, it is assumed that the identity of the driver of the vehicle that struck the child is known and not disputed. However, in some unwitnessed child-pedestrian accident cases there may be one or more issues in this regard. The identification of a hit-and-run vehicle and driver is treated in another article.[FN6] Establishing which of several occupants of an automobile involved in an accident was driving at the time of the collision is also discussed elsewhere.[FN7]
The damages aspects of the child-pedestrian accident case also involve special problems. When the client is an injured child, the attorney must look not only to the present injury, but also to future manifestations that may arise out of that injury. While the present article briefly discusses damages for injuries to children generally (see § 8), proof of the amount of damages that should be awarded as compensation for future medical expenses that a child may incur as a result of an injury is treated in another article.[FN8]
In any case in which a child has been injured while going to or from a school bus, counsel should consider the possible liability of defendants other than the motorist who struck the child. For example, the possible liability of the school or school system, the school bus driver, and the school bus owner or bus system operator (if different from the school or school system), as well as the motorist who hit the child, should be considered in a case of the type under discussion. The liability of the school bus driver and bus system operator for injuries to children in connection with going to or from school buses is treated in another article.[FN9]
Caution:
The duties of motorists with regard to school buses receiving or discharging passengers is commonly regulated by statute. Although such statutes are discussed generally (see § 4), no attempt has been made to discuss particular statutes or regulations. Furthermore, in most jurisdictions the correlative rights and duties of a driver of a motor vehicle and a pedestrian generally are governed by statutes or other enactments that may affect the liability of a motorist for striking a child who was going to or leaving a school bus.[FN10] Counsel should always consult the most recent enactments of the jurisdiction involved.
CUMULATIVE SUPPLEMENT
Editor's Comment:
See also Proof of the Roadside Hazard Case, 71 Am. Jur. Proof of Facts 3d 1.
Cases:
In a negligence action against the driver of an automobile that discharged a child at the side of the street across from the child's house, brought by parents of the child who was killed when struck by an automobile while crossing the street, defendant did not owe a duty to the child to determine if the street was clear for the child to cross or to warn the child of any danger, but only a duty to deposit the passenger in a place of safety. Cooperider v Peterseim (1995, Medina Co) 103 Ohio App 3d 476, 659 NE2d 882.
UM coverage: Student was "occupying" school bus when hit by car as she crossed street behind bus and, therefore, was insured under uninsured motorist (UM) coverage in bus company's policy, even though student had stepped onto sidewalk after exiting bus and bus had moved into intersection to turn left; student was within ten feet of bus, and the bus blocked her view of on-coming traffic. Hunt ex rel. Gende v. Clarendon Nat. Ins. Service, Inc., 278 Wis. 2d 439, 2005 WI App 11, 691 N.W.2d 904, 195 Ed. Law Rep. 293 (Ct. App. 2004), review dismissed, 2005 WI 21, 278 Wis. 2d 538, 693 N.W.2d 77 (2005); West's Key Number Digest, Insurance2670.
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[END OF SUPPLEMENT]
§ 2. Duty of motorist toward children, generally; effect of presence of school bus
[Cumulative Supplement]
A motorist who knows or should know that children are in the vicinity is under a duty to exercise reasonable care for their safety. Of course, motorists must exercise reasonable care in all events, and they owe any pedestrian the duty to use reasonable care to avoid injuring the person. However, in order to reach the standard of "reasonableness" where children are involved, a higher or greater amount of care than would be the case with adults is usually required. This is because the law recognizes the fact that children act on childish instincts and impulses.[FN11] Accordingly, the law requires those charged with a duty of care and caution toward children to plan on such childish conduct, and to take appropriate precautions. It has been said that where the motorist knows of the presence of a child or children in, near, or adjacent to the street, he must anticipate childish conduct. He should be alert, attentive, and vigilant, and maintain a lookout, anticipating the possible requirement of a sudden turn or stop to avoid a collision. The motorist must not drive at an excessive or unlawful rate of speed, and is required to maintain such control of his vehicle that he will be able to stop or execute some other evasive maneuver with reasonable celerity when required by the circumstances. The same is true in circumstances where a motorist should know that children may be reasonably expected to be in the vicinity.[FN12] Thus, even if motorists do not actually see any children, they are expected to anticipate and be on the lookout for children when driving about places normally inhabited or frequented by children.[FN13]
Although a motorist is not always bound to anticipate that a child will suddenly run across the road in front of his vehicle, nevertheless he may be required to anticipate such a heedless act if there is anything to warn him that he should expect it. According to some cases, the mere presence of young children on the side of the road should alert the motorist to be on guard for thoughtless or impulsive acts that may be expected from such children, including the tendency to dart suddenly into the road from a place of safety. This has been said to be a "frequently observed disposition of children of tender years, especially when in a group," which a motorist cannot ignore.[FN14] This is particularly true where a school bus is present in the vicinity of a school bus stop. A motorist cannot fail to be aware that children going to or from a school bus tend to cross the street without regard to the danger of passing traffic, and that a child might suddenly emerge from behind or in front of the school bus. Even if motorists do not actually see any children, they are expected to anticipate and be on the lookout for children when driving near slowing or stopped school buses in the vicinity of school bus stops. In such circumstances, the motorist must anticipate the possible presence of children and must accommodate the vehicle's movement to children in potential as well as immediate peril.[FN15]
CUMULATIVE SUPPLEMENT
Cases:
Because motor vehicles pose such a hazard to pedestrians, motorists owe a duty of special care to pedestrians. LSA-R.S. 32:214. Estate of Hickerson v. Zimmerman, 853 So. 2d 55 (La. Ct. App. 4th Cir. 2003); West's Key Number Digest, Automobiles160(1).
A motorist's duty of care includes the duty to keep his vehicle under control and to maintain a proper lookout for hazards. Chisholm v. Clarendon Nat. Ins. Co., 850 So. 2d 1070 (La. Ct. App. 2d Cir. 2003); West's Key Number Digest, Automobiles168(1).
Operation of logging truck with two of six brakes inoperable supported imposition of 50-percent fault in accident in which 6-year-old student darted back across road from schoolbus into path of truck, where reasonably competent and prudent truckdriver could have stopped with proper brakes upon encountering schoolbus that was not displaying flashing red lights and semaphore warnings. Dunn v Gentry (1995, La App 3d Cir) 653 So 2d 783, cert den (La) 655 So 2d 335.
Operator of motor vehicle who fulfilled his duty to provide nine-year old passenger with safe place to alight from vehicle was not negligent when nine-year old passenger was struck and killed by another vehicle while crossing street after alighting from vehicle. Loder v. Greco, 5 A.D.3d 978, 774 N.Y.S.2d 231 (App. Div. 4th Dep't 2004); West's Key Number Digest, Automobiles181(1).
The question of whether an accident in which a child was struck by a motorist was solely caused by the infant's failure to yield the right-of-way, in violation of the governing statute, was for the jury in a personal injury suit against the motorist; jury could have reasonably credited the motorist's assertion that he saw the child dribbling a basketball at the same time as the child was crossing the street at a point other than a marked or unmarked crosswalk, and that the motorist attempted to stop as soon as he saw the child a little more than one car length away. McKinney's Vehicle and Traffic Law § 1152(a). Velez v. Cullinan, 674 N.Y.S.2d 428 (App. Div. 2d Dep't 1998).
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[END OF SUPPLEMENT]
§ 3. Requisite care of motorist driving near school bus; negligence
[Cumulative Supplement]
A motorist who is approaching a school bus discharging or taking on schoolchildren must exercise that degree of care that the situation and circumstances demand in order to prevent injury to the children. A school bus, while discharging or taking on schoolchildren, is a warning of danger to drivers.[FN16] Moreover, the same is true of a moving school bus in the vicinity of a known school bus stop, or where the motorist otherwise knows that the bus has just discharged children or is near a place where children will be picked up.[FN17] Drivers are afforded, by the very presence of the bus, knowledge that small children may run across the road in front of their approaching vehicles. Accordingly, motorists must drive their vehicles with a degree of care commensurate with the danger to be encountered. The danger of injuring a child under such circumstances is increased, and the care to be exercised by drivers of motor vehicles in preventing an injury likewise is increased.[FN18]
In general, the motorist must drive at a reasonable rate of speed, maintain an adequate lookout, and keep his vehicle under control.[FN19] When the motorist sees a school bus that is stopped for the purpose of discharging or taking on schoolchildren, or that is in the vicinity of a place where children have been or will be boarded or discharged, he must exercise such care in all these respects as is reasonably necessary to avoid an accident.[FN20] Accordingly, a motorist approaching a school bus under such circumstances must be attentive and exercise a high degree of watchfulness.[FN21] Since he should anticipate that children boarding or alighting from the school bus may cross in front of him, it becomes his duty to have his vehicle under such control that it could be stopped on the "shortest possible notice" of danger.[FN22] Ordinarily, this means that a motorist who is approaching or passing the school bus must slacken his speed, and must not pass too close to the bus. Under some circumstances the motorist may be required to stop his vehicle to accommodate children in potential as well as immediate peril, and to remain stopped until the motorist knows that no children are being endangered by his movement.[FN23] The circumstances may also be such as to require the motorist to sound a warning of his approach.[FN24] Where the motorist is driving at a high, excessive, unreasonable, or unlawful speed, or without maintaining a proper lookout, or does not give suitable warning of his approach, or passes too close to a school bus that is discharging or taking on passengers, he cannot escape liability for striking a child by saying that the child ran in front of his vehicle so suddenly that the accident was unavoidable.[FN25]
What may be reasonable care under some circumstances on the part of a motorist approaching or passing a school bus, in avoiding injury to a child leaving or going to the bus who suddenly steps into the path of his vehicle, may be negligence under other circumstances.[FN26] Under well-established principles of the law of negligence generally, the question of the motorist's negligence in this regard is ordinarily one of fact for the jury.[FN27] Of course, the well-established general principle that in order to impose liability for a negligent act it must appear that such negligence was the proximate cause of the injury complained of is also fully applicable in motor vehicle accident cases involving injury to children going to or from a school bus,[FN28] and the question of proximate cause in such cases is likewise ordinarily a question of fact for the jury.[FN29] In this connection, counsel should bear in mind that these cases often may involve negligent conduct on the part of the school bus driver, as well as the motorist who struck the child (see § 1). In general, separate and distinct but concurrent negligent acts by different persons causing injury to another are each regarded as the proximate cause of the injury,[FN30] and a motorist cannot escape liability for negligence resulting in injury to a child who was going to or from a school bus by showing that the school bus driver or another was also responsible.[FN31]