 |
 |
 |
|
|
|
 |
 |
 |
 |
 |
 | |
|
VOLUME 7 February 2005 | ||||||
|
|
CHILD DARTING LAWS: A LOOK AT FLORIDA’S RECENT TRENDBy Terrell K. Anderson, Esq., and Addison J. Meyers, Esq.
The child darting laws of yesterday may no longer hold much weight given the recent trend in Florida case law. If a Defendant could establish that a child darted out into oncoming traffic, this was previously seen as grounds for A Motion for Summary Judgment or a Directed Verdict. Bell v. AA. Holiday Rent A Car. This rationale was based upon the legal principles of contributory negligence which has long since been replaced by comparative negligence. Under contributory negligence, if a Plaintiff was found to be negligent, it served as a complete bar to recovery. Therefore, if the Defendant could present undisputed evidence that a child darted out into oncoming traffic and an accident ensued, that Defendant had a pretty good chance of prevailing by filing a Motion for Summary Judgment or a Directed Verdict. Preger v. Gomery.
However, now that comparative negligence has become the new standard, courts in recent years have become more inclined to look at the totality of circumstances regarding an accident in which a child has darted out in front of a car. This may include how fast the driver was proceeding, at what point the driver saw or should have seen the child, whether or not this was an area known to have children crossing the street and any other factors that might help determine if the Defendant was comparatively negligent in a case such as this one.
Courts now look to determine if the Defendant could have avoided the accident even if it was found that the Plaintiff was also negligent in darting out. If the facts and circumstances suggest that the Defendant had an opportunity to avoid the accident, the summary judgment should not be granted and this should be a question that is presented to the jury. Cano v. Conway.
The appellate court in the 4th Fourth District Court of Appeals in Florida recently reversed the trial court’s decision granting summary judgment for the Defendant pursuant to the child darting laws. In this case, a fourteen year old boy was crossing a three lane intersection on a bike during rush hour traffic. He crossed the first two lanes that were at a standstill. As he attempted to cross the third lane of traffic that was moving, he was hit by the Defendant’s car. The Defendant testified that he was watching the road. He states that his girlfriend screamed and he immediately slammed on the brakes. Evidence was submitted during trial that there was a large truck to Defendant’s right in the lane from which the child appeared. The Plaintiff presented testimony that the Defendant’s car was about a half of a football field away when he noticed the vehicle. The appellate court determined that summary judgment was improper because there was a question of fact as to whether the Defendant could have avoided this accident. This holding suggests that courts are now more inclined to weigh all the facts and circumstances to determine who had the last clear chance to avoid the accident.
Therefore, even if a child has darted out into the street without any prior warning, if the Plaintiff can show that the driver still could have avoided the accident and failed to do so, he will be comparatively negligent. This is true because the driver had the last opportunity to avoid this accident and failed to do so. In determining who had the last clear chance, courts will look to the following elements in order to apply the doctrine. 1) that the injured party has already come into a position of peril; 2) that the injuring party then or thereafter becomes, or in the exercise of ordinary prudence ought to have become, aware not only of that fact, but also that the party in peril either reasonably cannot escape it, or apparently will not avail himself of opportunities open to him in doing so; 3) that the injuring party subsequently has the opportunity by the exercise of reasonable care to save the other from harm; and 4) that he fails to exercise such care. Therefore, if the injuring party had the last chance to avoid the accident and failed to do so, he could be found liable. |
||
|
|
|||
|
|
|||