( Disponible en anglais seulement )
Author: Steve Hughes, Articling Student
Whether it’s part of a daily routine, or the occasional emergency run, many parents have experienced the joy of dropping their children off at school. While the task seems simple enough in principle, many of us have likely witnessed the utter mayhem and madness that can take place within the School Zone around 8:00 am or 3:30 pm. It can seem like society momentarily breaks down, and all rules of the road become suspended.
Unfortunately, accidents involving child pedestrians can hit tragically close to home. Every year, thousands of children are injured or killed in motor vehicle accidents (« MVAs ») in school zones during usual school transportation hours. According to a study published by the American Academy of Pediatrics in 2007, there are about 815 fatalities and over 150,000 injuries related to school transportation within these hours in the US every year. In Canada, between the years 2000 and 2005, there were 2,717 collisions involving children in Toronto alone, with the highest density occurring within 0-150 m of a school zone. The highest risk of those collisions occurring was during usual pick-up and drop-off hours.
Clearly, drivers need to be cautious when entering a school zone. What is not clear, however, is exactly how cautious. MVAs involving pedestrians routinely give rise to questions of liability. But how liable are drivers when an excited student runs out into traffic? How liable are the child’s parents? Can the child be held responsible?
The concept of a legal duty of care in Canada arises from the law of negligence. The classic case of Donoghue v Stevenson provides that negligence is determined by the standard of what is reasonable in the given circumstances. That is, if you can reasonably foresee that your actions will cause damage to another, you generally have a duty to avoid it. This principle has since been expanded upon in various contexts, including driving in school zones.
If a driver is involved in an MVA with a child pedestrian, the starting point tends to be a presumption that the driver was negligent. In fact, this has been statutorily encoded in many provinces. See, for example, s 186(1) of Alberta’s Traffic Safety Act, which puts the onus on the driver to prove that any damage which resulted from an MVA was not due to that driver’s negligence. Ontario has an analogous provision in its Highway Traffic Act.
In general, drivers are held to the standard of a reasonable person in the circumstances, not perfection. However, in Walter v Plummer, the British Columbia Court of Appeal noted that a higher standard of care exists in areas where it known that students might be jaywalking. In other words, where it is reasonably foreseeable that children could cut across the street, drivers owe a higher duty of care in that area than they normally would. Part of the reason for this is that people generally know children tend to be less cautious than adults.
However, that does not mean that drivers are always 100% at fault. In many cases, children have been found to share some of the blame. This is known as contributory negligence. For example, in Lee v Barker, a 12-year-old child ran into the side of the defendant’s car while inside a school zone. The Court in that case recognized there was not much the driver could have done to avoid the accident, even though she knew children could be there. Since the child had navigated the school zone independently for several years, the Court held he also had a duty of care. Ultimately, the driver was found to be 20% responsible, and the child 80%.
In Blair v Simpson, a driver collided with a 6-year-old child on a bicycle right outside a school zone. The child swerved in front of the driver’s truck, and the Alberta Court of Queen’s Bench found that the driver had done everything he could in the circumstances to avoid the collision (e.g. drove below the speed limit, used his horn, and pulled to the right of the road). As a result, the Court held that he had entirely rebutted the presumption of negligence, and no liability was found on his behalf.
If a child is hit by a motor vehicle inside a school zone, the Court may also find the parent(s) partially responsible. The British Columbia Superior Court (the “BCSC ») explained that parents will be held to the standard of a reasonably prudent parent in the circumstances. This might include properly instructing the child about traffic safety and crosswalks, dropping the child off in a safe spot, and knowing what the school zone is like in the given community.
This can apply outside the School Zone as well. Consider a person driving through a residential neighbourhood during evening hours on Halloween. If that person was involved in a MVA with a child pedestrian, a court might impose a heightened duty of care based on the knowledge that children might be more likely to walk across the street on Halloween. The BCSC found this to be the case in Hall v Pinette et al.
At the end of the day, there is a very simple theme: doing what is reasonable in the given circumstances. As a driver, certain risks arise upon entering a school zone. There are often children everywhere, of all ages and maturity level. There often are cars everywhere, potentially making it difficult to see who might be about to step onto the road. Drivers owe a duty of care to the children in a school zone to avoid any accidents that were reasonably foreseeable, based on these risks.
For a helpful guide regarding school zone safety and some of the major risks that drivers might be responsible for, check out this « Safe Routes to School Guide« , developed by the Pedestrian and Bicycle Information Centre. If you or your child have been involved in an MVA causing injury inside a School Zone, it is important to understand how liability might be apportioned. If you have any questions or concerns, feel free to contact one of the lawyers in Miller Thomson’s personal injury group for a no-obligation consultation.