Yesterday WTVR.com reported that there will be no charges against the driver in the tractor trailer accident who fatally struck two kids running to a bus on Route 15 in Buckingham County yesterday. The whole ordeal is heartbreaking and for the families involved there is a great need for prayer and condolences.
My mind races when I hear heartbreaking stories like this because I deal with situations like this every day. People don’t come see lawyers like me when everything is going their way. Rather, they come when tragedy strikes and they have no where else to turn. I feel a duty not only to represent folks in these situations legally. But I also feel the need from an emotional and spiritual perspective. Grief is such a strong emotion and it can only be dealt carefully and intentionally by those qualified to do so.
After reading this report, though, it appears that the information available has resulted in a conclusion of no wrongdoing. From a legal perspective the Virginia State Police concluded that no traffic laws that were broken by the driver. Based on these report, it appears that the bus was coming to a stop with it’s yellow lights flashing but it had not come to a complete stop yet. The red flashing lights and stop sign that are triggered when the bus completes its stop were not yet on.
But there appears to be more to this story and some lessons that we can all learn.
1. No criminal charges will be brought per VSP
The Virginia Code requires as follows:
A person driving a motor vehicle shall stop such vehicle when approaching, from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and shall remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion; any person violating the foregoing is guilty of reckless driving.
Code § 46.2-859 (Emphasis added).
From a criminal prosecution standpoint, there was nothing criminal in the tractor trailer drivers behavior. Because the school bus was not yet stopped on a highway, the tractor trailer driver technically did not violate this statute. The Virginia State Police has already said in this report that no charges will be brought for violating this statute. In many minds, this forecloses the issue of civil liability for tractor trailer driver.
2. Civil cases are different than criminal cases
However, cases like this—where there was no criminal summons issued—are more difficult in the civil litigation context. In a criminal context, the Troopers involved have to read the Virginia statute and interpret whether the conduct violated the terms of the statute. Otherwise, the judge is likely to dismiss the charge. In the civil context, the law is much more flexible.
The Virginia Model Jury Instructions define negligence as “the failure to use ordinary care. Ordinary care is the care a reasonable person would have used under the circumstances of this case.” If the failure to use ordinary care causes an injury or death, then the driver could be liable to the families of the two deceased children. “These are not arbitrary definitions but are highly elastic, and vary with the facts to which they are applied.” Filer v. McNair, 158 Va. 88, 92, 163 S.E. 335, 337 (1932).
3. A Jury Decides Questions of Negligence
We all need more information to make a liability determination. Ultimately, a Buckingham County jury will decide the question of negligence.
“Negligence is usually a question for the jury, and should be taken from it only when there is no real conflict of evidence on material matters, and when from facts established reasonable men should not differ as to conclusions to be drawn. A verdict must stand unless there is a plain deviation from the evidence, or it is palpable the jury have not drawn a correct inference from these facts as certified.”
Filer, 158 Va. at 92, 163 S.E. at 337 (internal quotations omitted). Of course when a Buckingham jury hears this evidence the ultimate question will be whether the tractor trailer driver acted with ordinary care. But this situation is unique when it comes to determining what a reasonable person would have done. Does the answer to this question rest on whether the statute was followed precisely? Or, is it something more broad and flexible? I submit that it is more broad and flexible.
4. Negligence Law As It Relates To Children
In this context, discussing the application of the ordinary care rule to child victims, the Supreme Court has said:
Of course no inflexible rule, applicable alike to all cases of this kind, has been, or can, be definitely stated. It has been stated that the driver of an automobile owes the duty of ordinary or reasonable care to children on the highway, but this has been construed to mean care commensurate with the danger and probability of injury. Certainly it is true that the conduct of a child is not measured by the same rules which govern that of adults, because a child does not have the knowledge and experience to know or estimate correctly the probable consequences of his acts in a given instance. Reasonable care required of automobile drivers toward children demands that the driver consider the age, maturity and intelligence of the child. He must increase his exertions to avert injury to children. Children of tender years are entitled to a degree of care from others proportioned to their inability to foresee and avoid the perils which they may encounter. The driver must not assume that an infant only five years old will exercise proper care for its own protection; on the other hand he is charged with knowledge of the fact that a child of that age may be expected to act upon childish impulses and he should take that fact into consideration and exercise the vigilance and precaution which the circumstances demand.
Ball v. Witten, 155 Va. 40, 46, 154 S.E. 547, 549 (1930) (emphasis added). Put a bit more succinctly, “[c]hildren of tender years may be expected to act heedlessly.” Filer, 158 Va. at 93, 163 S.E. at 337. In the Ball case, the Supreme Court, reviewing that jury verdict in favor of the Plaintiff, said
Knowing, a sufficient interval in advance, that the children were of immature minds and could not take care of themselves; that they would likely commit some irresponsible act and that they were in a perilous position, he should have proceeded with his automobile under such control that if necessary to avoid injury, he could have brought it to a stop. If stopping was the only effectual means he had at his disposal to avoid the injury, then he should have exercised that means.
Ball, 155 Va. at 47, 154 S.E. at 549 (emphasis added).
5. Was the Driver of the Tractor Trailer Negligent In This Case?
The differences between this case and that case could result in a different verdict depending on the Buckingham County jury. According this WTVR.com report, “[i]t was not until he saw the children run out that the driver knew he needed to stop because the bus lights were flashing yellow.” The report also stated that “[s]kid marks painted the road from the tractor trailer, who could not fight against physics as he tried to bring the fully loaded truck to a stop while traveling downhill.”
Given the law cited above, a jury would certainly consider these facts differently than the Virginia State Police did. The question in these cases is whether this driver should have anticipated the likely heedless actions of children? When he should have anticipated it? And, what would a reasonable person have done in like or similar circumstances?
In other words, should he have started slowing down and applying the brakes when he first saw a school bus, when he first saw the flashing yellow lights, or when he first saw the children on the side of the road? One can only find the answers to these questions after a thorough investigation. What will happen is still yet to be seen and will require a significant amount of work to resolve. That is, if the family decides to pursue a wrongful death claim.
We can all learn a valuable lesson here that we owe a greater degree care when it comes to children. It is incumbent on all of us to anticipate child-like behavior. That behavior may include running out in the road to board a school bus or to retrieve basketball. We need to be extra cautious when driving through areas where children may enter our lanes of travel. I believe the law requires it.
At the end of the day, my heart goes out to the families of these two precious children who were taken entirely too soon.