School Bus Driver that Hits Child is not Found Negligent

By Roger Foisy on September 5th, 2012

As children start heading back to school it is beneficial to reflect on the issue of road safety. While children may act and play as though they are invincible they most certainly are not. Whether children walk to school, get a ride or take the bus there is still a risk. For all parents it is worth sitting down to have a talk.

The Supreme Court of Canada has dismissed the action against the school bus driver who hit a young child when the child ran into the path of the oncoming bus (Annapolis County District School Board v. Marshall,2012 SCC 27). The Supreme Court’s ruling had the effect of overturning the Nova Scotia Court of Appeal’s decision and reinstating the jury’s verdict from the lower level Nova Scotia Supreme Court. The decision of the jury was that Douglas Feener was not negligent in causing or contributing to the injuries suffered by four-year old Johnathan Marshall. Mr. Freer was driving an empty school bus along a highway after dropping off students at school when the boy ran onto the highway and into the path of the oncoming bus. Mr. Freer was unable to stop the bus in time and as a result struck the boy causing him catastrophic injuries.

The issue of the appeal at the Supreme Court was if the Court of Appeal had erred in finding that the trial judge had misdirected the jury in referring to the right-of-way provisions of the Motor Vehicle Act. The Supreme Court found that there was no misdirection in the judge’s charge to the jury:
“In this case, even though Johnathan’s contributory negligence had been ruled out as a matter of law, the statutory right-of-way provisions continued to inform the standard of care that Mr. Feener owed to all pedestrians. The jury needed to be told that, absent special circumstances, where the driver has the right of way, he or she can reasonably proceed on the assumption that others will follow the rules of the road and yield the right of way to drivers” [para 7].

The judge at trial had made it clear to the jury that according to law the boy was not liable or contributory negligent for the accident due to his young age. The Supreme Court found that “the jury was invited to consider the conduct of a reasonable pedestrian in assessing whether Mr. Freener had demonstrated the requisite degree of precaution” [para 8]. Ultimately, a driver does have duty of care to a pedestrian, but a pedestrian would also have to act with reasonable conduct and with an interest in his or her own safety.

With a 7 to 1 majority decision the Supreme Court of Canada restored the jury’s verdict from the trial level and dismissed the case against the school bus driver. As a pedestrian you must take the initiative to watch out for your own safety so you do not end up in a position where you are face to face with the large, powerful and heavy machines that are motor vehicles. There are rules that try to help manage the shaky relationship that exists between pedestrians and motor vehicles, such as crosswalks and right-of- ways, but these rules are not always followed by pedestrians and vehicles alike. This case helps to dismiss the widely held assumption that if a pedestrian is struck by a motor vehicle it is automatically the driver of the vehicle who is at-fault. Even if someone does act a as a ‘reasonable pedestrian’ and takes precaution serious injuries or even death can occur.
In particular, this case illustrates the vulnerability of children whether they are playing outside or walking to school. Children are not always aware of the dangers they face or are especially careful in ensuring their own safety. It is important to discuss with your children safe street-crossing procedures and supervise their play outside. Even for children that take the school bus there is still a need for a discussion on safety. For a child nothing may seem worse than a nagging parent, but by taking the time to have a discussion on road safety, you can help prevent a future tragic incident.

In you or a family member are a victim of a serious pedestrian accident in Ontario, you need to seek the help of a dedicated personal injury lawyer in Ontario. Roger R. Foisy has successfully acted as lawyer for pedestrian accident victims and their families.

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